Filed 1/19/21 Kimble v. WDW Joint Venture CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

HELENA KIMBLE,

Plaintiff and Appellant,

v.

WDW JOINT VENTURE, 

Defendant and Respondent.

 B296965

 (Los Angeles County

 Super. Ct. No. VC066607)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Lori Ann Fournier, Judge. Reversed and 

remanded. 

A.O.E. Law & Associates, Anthony O. Egbase, Adam Apollo 

and Sedoo A. Manu for Plaintiff and Appellant. 

Pleiss Sitar McGrath Hunter & Hallack, Mark G. McGrath 

for Defendant and Respondent. 

__________________
2

Helena Kimble appeals the judgment entered after the trial 

court granted the motion for summary judgment filed by WDW 

Joint Venture, doing business as Downey Community Health 

Center, in Helena’s1action for wrongful death. Because WDW’s 

motion was directed to the other named plaintiffs, not to her, 

Helena contends the court erred in including her in its ruling and 

entering judgment against her. We agree and reverse. 

FACTUAL AND PROCEDURAL BACKGROUND

On September 29, 2017 Ira Lee Kimble, by and through his 

widow and successor in interest Loretta G. Kimble, sued WDW 

for negligence and elder abuse in connection with its treatment of 

Ira while he was a patient at WDW’s skilled nursing facility. The 

same day she filed the negligence and elder abuse action, Loretta 

joined her children Ira Kimble II and Latricia Kimble in filing a 

wrongful death action against WDW, alleging the actions and 

omissions of WDW and its employees had caused Ira’s death. 

The wrongful death complaint identified Loretta, Ira II and 

Latricia (collectively the Loretta Kimble plaintiffs) as Ira’s 

surviving heirs. Helena and two other individuals, Sabrina 

Gibson and Montoria Gibson, were described as indispensible 

parties and named as nominal defendants.2 

In January 2018 the court ordered the two lawsuits 

consolidated. 

1 Because Helena Kimble and the other plaintiffs in this 

action share the same surname, for clarity we sometimes refer to 

them by their first names.

2 Helena is Ira’s daughter and Loretta’s stepdaughter. 

Sabrina Gibson and Montoria Gibson have not appeared in the 

action and have not been otherwise identified.
3

After filing an answer to the wrongful death complaint, 

Helena moved to join the wrongful death action as a plaintiff 

pursuant to Code of Civil Procedure section 378,3alleging that, as 

Ira’s daughter, she was an indispensible party. 

On September 19, 2018, before the court had ruled on 

Helena’s motion to join the wrongful death action as a plaintiff, 

WDW moved for summary judgment or, in the alternative, 

summary adjudication in the consolidated action for elder abuse, 

negligence and wrongful death. The notice of motion and motion 

were specifically directed to “Plaintiffs, Ira Lee Kimble, by and 

through his successor in interest, Loretta Kimble . . . ; and 

Loretta G. Kimble, Ira Kimble II; and Latricia R. Kimble.” 

Helena was not identified in the notice of motion or motion.4 

On November 21, 2018 the trial court granted Helena’s 

motion to join the wrongful death lawsuit as a named plaintiff. A 

3

Statutory references are to this code.

4

The notice of motion stated in part, “To All Parties And 

Their Respective Attorneys of Record: [¶] Please Take Notice 

that on December 18, 2018 . . . defendant, WDW Joint Venture, 

dba Downey Community Health Center . . . will, and hereby does, 

move the Court for an order for entry of summary judgment in its 

favor and against Plaintiffs, Ira Lee Kimble, by and through his 

Successor in Interest, Loretta Kimble (Case No. VC066607); and 

Loretta G. Kimble; Ira Kimble II; and Latricia R. Kimble (Case 

No. VC066608) [collectively ‘Plaintiffs’].” (Block capitalization 

omitted.) The parts of the notice directed to the alternative 

motion for summary adjudication similarly stated the motion was 

directed against Loretta in the elder abuse/negligence action and 

against Loretta, Ira II and Latricia in the wrongful death action. 

Helena was not mentioned. 
4

first amended complaint adding Helena as plaintiff was filed on 

November 29, 2018.

In December 2018 the Loretta Kimble plaintiffs opposed 

WDW’s motion for summary judgment/summary adjudication. 

Helena, who had been served with WDW’s moving papers, did not 

file an opposition. 

On January 15, 2019 the Loretta Kimble plaintiffs 

appeared at the hearing on WDW’s motion and argued the 

motion should be denied on its merits. Counsel for Helena made 

a formal appearance but did not offer any arguments. After 

stating it was inclined to deny the motion, the trial court took the 

matter under submission. 

On February 1, 2019 the Loretta Kimble plaintiffs 

withdrew their opposition to the summary judgment motion after 

entering into a settlement with WDW. 

On February 11, 2019 the court granted WDW’s motion for 

summary judgment. Finding WDW had carried its burden on 

summary judgment and observing the motion was unopposed, the 

court concluded summary judgment in favor of WDW in the 

consolidated action for elder abuse, negligence and wrongful 

death was proper. In both its written ruling and minute order, 

the court referred to “plaintiffs” collectively without identifying 

any of them by name. 

Helena filed a motion for clarification or, in the alternative,

reconsideration. Emphasizing she had not been named in 

WDW’s notice of motion or motion for summary judgment, 

Helena sought clarification that the court’s order would not result 

in the dismissal of her wrongful death lawsuit. 

WDW opposed Helena’s motion, arguing it was neither 

timely nor a proper motion for reconsideration pursuant to 
5

section 1008, as it was not based on new facts or evidence. It also 

argued it was Helena Kimble’s obligation to file an opposition and 

seek a continuance of the hearing if necessary in order to 

preserve her action and she had done neither. WDW requested 

the trial court sanction Helena for filing a frivolous motion. 

At the hearing on Helena’s motion the court expressed 

frustration at Helena’s counsel for not making clear at the 

summary judgment hearing that Helena intended to proceed with 

her lawsuit no matter how the court ruled on the summary 

judgment motion. “You were here. You knew about [the motion]. 

You could have asked for a continuance. . . . You never once did 

that, and you relied on the other moving parties’ papers or the 

response. You didn’t ever say you wanted to file something on 

your own, and only because the case played out the way that it 

did, you came back here and asked me for reconsideration. You 

never until then made it known that you wanted to do something 

other than what was already presented, and truthfully, that’s 

troubling to me[.]” In response Helena’s counsel informed the 

court he had considered filing an opposition to the motion but 

elected not to as his client had not been identified in the motion 

and he did not want to waive any notice rights. 

After taking the matter under submission, the court denied 

Helena’s motion. Helena filed a notice of appeal from the order 

granting summary judgment. Later, the court entered judgment 

against Helena and the Kimble plaintiffs.5

5 We treat Helena Kimble’s premature notice of appeal from 

the summary judgment order as timely filed. (Cal. Rules of 

Court, rule 8.104(d).) 
6

DISCUSSION

The question presented in the case at bar is whether a 

motion for summary judgment is properly granted against a 

party to whom the motion was not directed. The answer, absent 

a waiver of rights that did not occur in this case, is no.

“The purpose of the law of summary judgment is to provide 

courts with a mechanism to cut through the parties’ pleadings in 

order to determine whether, despite their allegations, trial is in 

fact necessary to resolve their dispute.” (Aguilar v. Atlantic 

Richfield Co. (2001) 25 Cal.4th 826, 843; see § 437c, subd. (a)(1) 

[“[a] party may move for summary judgment in an action or 

proceeding if it is contended that the action has no merit or that 

there is no defense to the action or proceeding”].) Although the 

moving party must serve the motion and supporting papers “on 

all other parties to the action” (§ 437c, subd. (a)(2)), the motion 

need not be directed to all other parties. (See § 437c, subd. (a)(1) 

[“[t]he motion may be made at any time after 60 days have 

elapsed since the general appearance in the action or proceeding 

of each party against whom the motion is directed”].) 

Accordingly, it is incumbent on the moving party to identify in 

the notice of motion and motion the parties “to whom it [the 

motion] is addressed.” (Cal. Rules of Court, rule 3.1112(d)(2).) 

WDW acknowledges its notice of motion and motion did not 

specifically identify Helena Kimble as one of the parties to whom 

the motion was directed. However, it argues the general address 

at the top of the notice of motion, “To All Parties and Their 

Respective Attorneys of Record,” necessarily included Helena, 

who was a nominal defendant at the time the motion was filed. 

That language, at most, put all parties, including Helena, on 

notice the motion had been filed. It did not provide notice 
7

summary judgment was being sought against her, as 

section 437c, subdivision (a)(1), and California Rules of Court, 

rule 3.1112(d)(2) require. Indeed, the very next paragraph of the 

notice of motion specifically stated the motion was against the 

Loretta Kimble plaintiffs only. 

WDW alternatively argues that, by not filing an opposition 

or moving to continue the summary judgment hearing despite 

having notice of the motion and being present at the hearing, 

Helena waived any objection to the motion being granted against 

her. But Helena had no duty to oppose the motion, let alone 

request a continuance to file an opposition, because the motion 

was not directed to her. Not surprisingly, WDW cites no 

authority for a finding of waiver under these circumstances.6 

Although WDW does not cite Carlton v. Quint (2007) 

77 Cal.App.4th 690, its waiver argument seems to be based on 

dicta from that case. In Carlton the plaintiff asserted on appeal 

that the defendant had failed to serve his summary judgment 

motion at least 28 days before the hearing, the notice period then 

statutorily required. (Id. at p. 696.) After holding the motion 

had, in fact, been timely served, our colleagues in Division Three 

of this court suggested an approach for counsel to follow when he 

or she believes notice is inadequate, including appearing at the 

6 WDW’s waiver argument ignores its own crucial omissions. 

At the time it was filed, WDW’s motion for summary judgment 

was properly directed to a complaint in which Helena was not an 

adverse party. After the first amended complaint was filed and 

the complaint to which the motion was directed superseded, 

WDW did nothing to indicate it intended its motion apply to the 

operative first amended complaint naming Helena as a plaintiff. 

As a result, Helena had no reason to object on notice grounds or 

seek a continuance. 
8

hearing and requesting a continuance to file a proper opposition 

or filing the best possible opposition under the circumstances and 

demonstrating at the hearing the prejudice caused by lack of 

proper notice. (Id. at pp. 696-697.) The court of appeal observed 

the plaintiff had taken none of those steps. To the contrary, the 

plaintiff “filed a response to the motion for summary judgment, 

never claimed he did not have adequate time to prepare a 

response, appeared at the hearing, argued the merits, never 

requested a continuance, and never claimed he was prejudiced by 

the defective service or inadequate notice of hearing.” (Id. at 

p. 698.) Citing well-settled law the Carlton court held the 

plaintiff’s active participation in arguing the merits of the motion 

at the hearing—not his failure to request a continuance—waived 

any defects in notice or service. (Id. at p. 697.)

We need not evaluate the Carlton court’s suggested 

strategy to avoid waiver of defective notice or service because, 

unlike the situation in Carlton, the motion in this case was not 

directed to Helena (or, for that matter, to the first amended 

complaint naming her as a plaintiff). For that reason, she did not 

file an opposition to the summary judgment motion, a joinder in 

the Loretta Kimble plaintiffs’ opposition or argue the merits at 

the hearing. Accordingly, there was no waiver. (Cf. Robinson v. 

Wood (2008) 168 Cal.App.4th 1258, 1266 [distinguishing Carlton; 

plaintiffs who appeared at summary judgment hearing but did 

not argue the merits of the motion did not, by their limited 

opposition on notice grounds, waive their right to proper 

statutory notice].) 

Finally, WDW’s emphasis on Helena’s failure to conduct 

any discovery of her own is, quite simply, beside the point. While 

such failures, if they continue, could very well affect Helena’s 
9

ability to respond to a summary judgment motion properly 

directed to her and to prosecute her case at trial, they are 

irrelevant to the limited question whether a summary judgment 

motion that was not directed to her, and to which she justifiably 

did not respond, was properly granted against her. It was not. 

DISPOSITION

The judgment as to Helena Kimble is reversed. Helena

Kimble is to recover her costs on appeal. 

PERLUSS, P. J.

We concur:

SEGAL, J. 

FEUER, J