Filed 4/23/21 Ortega v. Higgs Fletcher and Mack CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or 

ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for 

purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

SHAKINA ORTEGA,

Plaintiff and Appellant,

v.

HIGGS FLETCHER AND MACK LLP 

et al.,

Defendants and Respondents.

 D076984

 (Super. Ct. No. 37-2018-

00013597-CU-PN-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, 

Kenneth J. Medel, Judge. Affirmed.

Shakina Ortega, in pro. per., for Plaintiff and Appellant.

Pettit Kohn Ingrassia Lutz & Dolin, Douglas A. Pettit, Jocelyn D. 

Hannah and Sabrina D. Johnson for Defendants and Respondents.

Plaintiff Shakina Ortega (Plaintiff) appeals from a judgment in favor of 

her former attorneys, defendants Higgs Fletcher and Mack LLP (HFM),

Paul J. Pfingst, and Christina Denning (together, Defendants), following the 

grant of Defendants’ motion for summary judgment. On appeal, Plaintiff 

raises a number of issues and arguments based on her contention that the 
2

trial court erred by deciding the summary judgment motion at a time in the 

litigation when Pfingst owed discovery responses and a discovery dispute was 

pending. As we explain, Plaintiff did not meet her burden of establishing 

reversible error. Accordingly, we affirm the judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND1

“ ‘Because this case comes before us after the trial court granted a 

motion for summary judgment, we take the facts from the record that was 

before the trial court when it ruled on that motion.’ ” (Wilson v. 21st Century 

Ins. Co. (2007) 42 Cal.4th 713, 716-717.) We consider all the evidence in the 

moving and opposing papers, except those portions of Plaintiff’s declaration 

testimony to which objections were made and sustained,2 liberally construing 

and reasonably deducing inferences from Plaintiff’s evidence and resolving 

any doubts in the evidence in Plaintiff’s favor. (Id. at p. 717; Code Civ. Proc., 

§ 437c, subd. (c); further unidentified statutory references are to the Code of 

Civil Procedure.)

1 Plaintiff filed, and Defendants opposed, a motion to augment the record 

on appeal to include the register of actions from the superior court. (Cal. 

Rules of Court, rule 8.155(b)(1); further unidentified rule references are to

the California Rules of Court.) Plaintiff properly identified the register of 

actions when she designated her record on appeal; but the clerk of the 

superior court failed to include it in the clerk’s transcript, and Plaintiff failed 

to notify the clerk of the omission under rule 8.122(b)(1)(F). Thus, we will 

deem her motion to be for the correction, not augmentation, of the record on 

appeal and grant it. (Rule 8.155(c)(1).) Accordingly, pages 5-12 of Plaintiff’s 

October 16, 2020 motion to augment the record on appeal (attached to the 

motion as pages “ATT ‘3’ page 1” through “ATT ‘3’ page 8”), which appear to 

be a copy of the superior court’s register of actions in this case as of 

February 6, 2020, are hereby part of the record in this appeal. 

2 Plaintiff does not challenge these evidentiary rulings on appeal.
3

A. The Underlying Federal Court Action: Ortega v. San Diego Police Dept.

In June 2012, Plaintiff’s husband suffered fatal injuries from gun shots 

fired by a San Diego police officer. Within a few days, Plaintiff retained HFM 

to represent her and her children in asserting various claims against the City 

of San Diego, the San Diego Police Department, and the officer who fired the 

lethal gun shots (together, the City). 

In January 2013, on behalf of Plaintiff and her children, HFM filed a 

federal lawsuit against the City, alleging causes of action for: federal civil 

rights violations (42 U.S.C. § 1983); discrimination (citing Civ. Code, former 

§ 51.7); state civil rights violations (citing Civ. Code, former § 52.1, subds. (b), 

(h)); assault and battery (Gov. Code, § 815.2, subd. (a)); wrongful death (citing 

former § 377.60, subd. (a)); and negligence (Gov. Code, § 815.2, subd. (a))

(Federal Court Action). Following summary judgment proceedings and a jury 

trial in the Federal Court Action, the district court entered judgment in favor 

of the City and against Plaintiff and her children in March 2017. 

B. The Present Action: Ortega v. HFM 

Representing herself, Plaintiff filed the present action against 

Defendants in March 2018 and a first amended complaint in August 2018. 

Based on a motion for summary judgment or, in the alternative, summary 

adjudication filed by Defendants in May 2019, by that time the only 

remaining causes of action were for legal malpractice and breach of fiduciary 

duty.3 (All subsequent dates are in 2019, unless noted otherwise.)

In the motion, Defendants argued that they were entitled to summary 

adjudication of each of the two claims on various grounds. With regard to 

3 Plaintiff raises no issues on appeal as to the disposition of any of the 

other claims. 
4

both legal malpractice and breach of fiduciary duty, Defendants argued that 

Plaintiff could not establish the following elements of each of the causes of 

action: breach of duty, causation, and damages. In support of their motion, 

Defendants submitted a memorandum of points and authorities; declarations 

from Pfingst, Denning, and one of their trial court defense attorneys; a 

request for judicial notice; nine exhibits; and a separate statement of 

undisputed material facts. 

Approximately a month later, in late June, Plaintiff initiated written 

discovery by propounding to Pfingst and to Denning one set of interrogatories 

and one set of requests for admission each. On July 22, with less than a 

month before the hearing on Defendants’ summary judgment motion (which 

was less than two weeks before Plaintiff’s opposition was due (§ 437c, 

subd. (b)(2)), Plaintiff served a second wave of written discovery. It included 

a second set of requests for admission to both Pfingst and Denning, and a 

first set of requests for admission (genuineness of documents) to Pfingst. As 

we explain, post, with regard to the second set of requests for admission 

to Pfingst (RFA #2), the parties dispute whether Plaintiff ever served them 

and whether Pfingst ever received them.

At an ex parte hearing on August 1—with the hearing on Defendants’ 

motion for summary judgment noticed for August 16, and her opposition due 

no later than August 2—Plaintiff applied for an order to continue the hearing 

on Defendants’ motion “in order to conduct additional discovery in order for 

Plaintiff to have a sufficient opportunity to oppose the Defendants’ Motion 

For Summary Judgment.” In support of the application, Plaintiff testified: 

The responses to her first sets of requests for admission were due that day, 

on August 1; the responses to her second set of requests for admission 

(including the RFA #2) were due weeks later, on August 26; the motion and 
5

discovery cutoff date was September 13; and “[i]n order to present all the 

facts and evidence in my opposition[ to the motion,] it is imparitive [sic] that I 

receive the responses to my discovery.” The court granted Plaintiff’s

application and continued the hearing on Defendants’ motion to 

September 13, the existing motion cutoff date, with “no further 

continuances.”4

Plaintiff filed her opposition to Defendants’ summary judgment motion 

on August 16, two weeks before the statutory deadline. (See fn. 4, ante.) 

Plaintiff argued that there were triable issues of material fact as to: 

“whether Defendants owed Plaintiff a duty of care to represent her in the 

Wrongful death cause of . . . action of Plaintiff’s husband” (in the Federal 

Court Action); “Whether Defendants breached their duty of care by failing 

adequately represent Plaintiff in accordance with relevant legal standards of 

care within the practice of law”; “Whether Defendants’ acts or omissions 

proximately caused the injuries and damages to Plaintiff”; and “whether 

Defendants failed to provide skillful and competent representation during the 

trial in the [Federal Court Action].” (Sic.) In support of her opposition, 

Plaintiff submitted a memorandum of points and authorities; her declaration; 

41 exhibits; and a response to Defendants’ separate statement of undisputed 

material facts. Significantly, nowhere in the more than 60 pages of materials

did Plaintiff mention either discovery responses or the need for discovery 

responses from Pfingst or from Denning. 

4 With a new hearing date of September 13, Plaintiff’s opposition to 

Defendants’ motion would have been due no later than August 30. (§ 437c, 

subd. (b)(2).) According to Plaintiff’s ex parte application, this was four days 

after the responses to the RFA #2 were due. 
6

Defendants replied to Plaintiff’s opposition by submitting a 

memorandum of points and authorities; a reply to Plaintiff’s response to 

Defendants’ separate statement of undisputed material facts; and objections 

to some of Plaintiff’s evidence. 

Days later, on September 9, Plaintiff filed an ex parte application for an 

order shortening time to hear a motion to deem the RFA #2 admitted and for 

discovery-related sanctions. Plaintiff supported her application with a 

memorandum of points and authorities and declaration with exhibits. 

Plaintiff included the proposed discovery motion and testified: Plaintiff 

served the RFA #2 on July 22, Pfingst’s responses were due on August 26, 

and as of the September 9 application, Pfingst had not responded to the 

RFA #2; September 13, four days later, was the hearing on Defendants’ 

summary judgment motion (and the cutoff for discovery and motions); 

without an order shortening time, the first available date for a hearing on her 

discovery motion was January 17, 2020; and “If the Court does not grant the 

application to shorten the time to notice and hear my motion before both the 

trial and the summary judgment hearing, I will suffer irreparable injury.” 

Notably, Plaintiff did not describe how she might suffer irreparable injury 

without the RFA #2 being deemed admitted. 

Later that same day, Defendants filed written opposition to Plaintiff’s 

ex parte application for an order shortening time. They presented two 

arguments: (1) the ex parte application should be denied, because Plaintiff 

did not make a sufficient showing of good cause to shorten time; and, if the 

court is inclined to hear Plaintiff’s discovery motion, (2) the court should deny 

the motion, because “Defendants never received the alleged [RFA #2] 

Plaintiff seeks to deem admitted.”
7

The September 10 hearing on Plaintiff’s ex parte application was 

reported. At the onset, the court explained that it was aware of the 

September 13 summary judgment hearing three days later. Expressly 

stating that it did not know the scope of the RFA #2, the court first sorted out 

the cause of the immediate problem: Plaintiff presented signed proofs of 

service for the RFA #2, and defense counsel argued that her firm never 

received the RFA #2, emphasizing that Defendants had responded to all other 

discovery requests, including those that Plaintiff served along with the 

RFA #2 on July 22. The court essentially believed both sides: Plaintiff 

mailed the RFA #2, but Defendants did not receive them.5 The court 

explained to Plaintiff: “It would be surprising if a firm like [defense counsel’s 

firm] wouldn’t respond to th[e] kind of questions” like those in the RFA #2; 

and, while the court was not prejudging Plaintiff’s substantive motion, “if 

there was some logistical problem [in] actually ever receiving [the RFA #2],” 

then the court likely “would be very reluctant to grant [the] motion.” The 

court then made the following proposal, which was acceptable to the parties: 

Pfingst would be given 10 days in which to respond to the RFA #2, and if 

either Pfingst could not provide the responses in 10 days or if the responses 

were inadequate, either side could return to court on an ex parte basis—

either Pfingst could request more time, or Plaintiff could request that her 

5 “The Court [to Plaintiff]: You're confident you sent them?

“[Plaintiff]: I’m sure.

“The Court [to defense counsel]: You’re confident that you never 

received them? [¶] . . . [¶] 

“[Plaintiff]: Yes, your Honor. [¶] . . . [¶]

“The Court [to Plaintiff]: . . . I have no reason to disbelieve Counsel 

that she didn’t get them. I have no reason to believe that you didn’t send 

them.” 
8

discovery motion be put on calendar.6 The court’s written order required 

Pfingst “to provide [P]laintiff the responses to the [RFA #2] within 10 days. 

[¶] If necessary, an ex parte hearing should be scheduled to obtain a motion 

date.” 

Two days later, the court issued a tentative ruling in the summary 

judgment proceedings. Without mention of the RFA #2 ex parte proceedings, 

the tentative provided rulings on Defendants’ evidentiary objections and 

granted Defendants’ motion for summary judgment. 

The following day, September 13, the court entertained oral argument 

on Defendants’ summary judgment motion. The court first described how it

handled the pleadings that were submitted in support of and in opposition to 

the motion and, in the context of the tentative ruling, explained to Plaintiff 

that she “didn’t provide . . . necessary evidence” to overcome Defendants’ 

initial showing. Plaintiff responded with three arguments.

First, Plaintiff argued: “[J]ust three days ago . . . you ordered [Pfingst] 

to answer [the RFA #2]. So I don’t understand why my case is being thrown 

out when there’s still pending [d]iscovery. I thought I was entitled to those 

answers.” The court explained that the discovery dispute and the summary 

6 “The Court [to Plaintiff]: . . . So that’s what I’m going to do, okay?

“[Plaintiff]: Okay.

“The Court [to Plaintiff]: So you can come back in, and if the answers 

are inadequate or whatever, I’ll put your motion on calendar beyond the 

motion [cutoff date]. You didn’t lose anything . . . today, okay?

“[Plaintiff]: Okay. I just have to wait 10 days?

“The Court: I take it, when you did those [RFA #2], you wanted 

responses to them.

“[Plaintiff]: Yeah.

“The Court: That’s what you’re going to get.

“[Plaintiff]: Okay. [¶] . . . [¶]

“[Defense Counsel]: Thank you, your Honor.” (Italics added.)
9

judgment were different procedures and that, if she believed the lack of 

discovery responses prejudiced her ability to oppose the summary judgment 

motion, then she was required to set forth such an argument in her 

opposition to Defendants’ summary judgment motion.7

Next, Plaintiff argued that she thought her fee waiver entitled her to a 

court-appointed expert attorney—and that she had requested one—but that 

she “didn’t really get an answer” to her request.8 The court explained both 

that there is a great expense involved in hiring experts and that, in addition 

to a lack of public funds, when private parties are involved in a civil dispute 

with private issues, the court generally does not help one side with expenses 

related to trial strategy.

The final argument Plaintiff presented was: Although Defendants 

claim that the City extended a settlement offer to her prior to the trial in the 

Federal Court Action, she denied that Defendants ever communicated any 

such offer to her.9

7 Significantly, at no time during the September 13 hearing did Plaintiff 

attempt to explain to the court how, if at all, either the RFA #2 related to the 

issues in Defendants’ summary judgment motion or Pfingst’s responses might 

relate to her opposition to the motion. 

8 Although not cited by Plaintiff in her appellate briefing, the record 

on appeal contains a July 30 request by Plaintiff for a waiver of fees for 

(1) jury-related expenses, (2) subpoenaing a peace officer to testify in court, 

and (3) “court-appointed experts.” By order filed August 2 and served 

August 7, the court granted Plaintiff’s request for the waiver of only those 

fees associated with the jury and the peace officer’s court testimony. 

Plaintiff raises no issue on appeal as to the lack of a court-appointed 

expert.

9 Plaintiff raises no issue on appeal related to whether the City made a 

settlement offer in the Federal Court Action.
10

The court then adopted its tentative ruling and granted Defendants’ 

motion for summary judgment, explaining that Defendants had met their 

initial burden of presenting evidence that negated elements of each of the two 

remaining causes of action, but that Plaintiff did not meet her responsive 

burden of presenting evidence that raised a triable issue of material fact. 

The court’s written order granting Defendants’ motion, filed 

September 13, went into more detail. After ruling on Defendants’ evidentiary 

objections to Plaintiff’s evidence, the court concluded that Defendants met 

their initial burden of establishing that there was no triable issue of material 

fact due to a lack of evidence of: breach of the standard of care, causation, 

and damages. With regard to the standard of care, the court relied on 

Defendants’ expert testimony that, in trying the Federal Court Action, 

Defendants met the standard of care of a plaintiff’s civil trial attorney in such 

a litigation and on Plaintiff’s failure to have provided any expert testimony to 

the contrary. With regard to causation and damages, the court ruled that 

Plaintiff did not establish that “ ‘but for’ some error on [the] part of the 

Defendant[s], the Plaintiff would have received a more favorable result.” 

(Citing Viner v. Sweet (2003) 30 Cal.4th 1232, 1241; Thompson v. Halvonik

(1995) 36 Cal.App.4th 657, 661-662 [causation and damages must be proven 

to a legal certainty].)

Based on the written order granting summary judgment, the court 

entered judgment in favor of Defendants and against Plaintiff in September 

2019. Plaintiff timely appealed. 

II. DISCUSSION

Plaintiff represented herself throughout the proceedings in the trial 

court and now on appeal. In both courts, the procedural rules apply the same 

to a self-represented party as to a party represented by counsel. (Rappleyea 
11

v. Campbell (1994) 8 Cal.4th 975, 984-985 [“the rules of civil procedure must 

apply equally to parties represented by counsel and those who forgo attorney 

representation”].) “The same burdens are imposed uniformly and equally on 

all appellants, and self-represented parties are ‘ “held to the same restrictive 

procedural rules as an attorney.” ’ ” (Burkes v. Robertson (2018) 26 

Cal.App.5th 334, 344-345; accord, Flores v. Department of Corrections & 

Rehabilitation (2014) 224 Cal.App.4th 199, 205 [“The same rules apply to a 

party appearing in propria persona as to any other party.”].) The fact that a 

party is representing herself is not a basis for special treatment that would 

be unfair to the other litigants. (Rappleyea, at pp. 984-985; McClain v. 

Kissler (2019) 39 Cal.App.5th 399, 416; see Advisory Com. com., Cal. Code 

Jud. Ethics, canon 3B(8).) Thus, to the extent Plaintiff’s self-represented 

status contributed to certain procedural and substantive deficiencies in either 

court, it does not excuse them or otherwise entitle her to relief on appeal on 

the basis that she is representing herself. We acknowledge Plaintiff’s 

statement that she “has never asked for any special privileges because she 

was a pro per litigant” and appreciate that she asks only “to be given the 

same rights to due process of the law, the same as any other litigant.” 

The trial court’s judgment is presumed correct, and Plaintiff (as the 

appellant) has the burden to demonstrate reversible error. (Jameson v. Desta

(2018) 5 Cal.5th 594, 609.) Trial court error alone, however, does not entitle 

an appellant to relief on appeal. For an error to require a reversal, the 

appellant must also establish prejudice (§ 47510) that resulted in a 

10 Section 475 provides in full: “The court must, in every stage of an 

action, disregard any error, improper ruling, instruction, or defect, in the 

pleadings or proceedings which, in the opinion of said court, does not affect 

the substantial rights of the parties. No judgment, decision, or decree shall 
12

“miscarriage of justice” (Cal. Const., art. VI, § 1311) as a result of the error. 

(Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069 (Pool).) A “miscarriage 

of justice” may be found on appeal “ ‘ “only when the court, ‘after an 

examination of the entire cause, including the evidence,’ is of the ‘opinion’ 

that it is reasonably probable that a result more favorable to the appealing 

party would have been reached in the absence of the error.” ’ ” (Ibid.; accord, 

§ 475.) In this context, “reasonably probable” means “more than an abstract 

possibility.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 

715, italics omitted [professional negligence action].) Prejudice is not 

presumed (§ 475), and the appellant bears the burden of establishing it by 

explaining specifically how the error caused a miscarriage of justice—i.e., 

how it is reasonably probable that, but for the error, the appellant would 

have received a more favorable result (Denham v. Superior Court (1970) 2 

Cal.3d 557, 566).

be reversed or affected by reason of any error, ruling, instruction, or defect, 

unless it shall appear from the record that such error, ruling, instruction, or 

defect was prejudicial, and also that by reason of such error, ruling, 

instruction, or defect, the said party complaining or appealing sustained and 

suffered substantial injury, and that a different result would have been 

probable if such error, ruling, instruction, or defect had not occurred or 

existed. There shall be no presumption that error is prejudicial, or that 

injury was done if error is shown.” 

11 Article VI, section 13 of the California Constitution provides in part: 

“No judgment shall be set aside . . . in any cause, on the ground of . . . the 

improper admission or rejection of evidence, or for any error as to any matter 

of pleading, or for any error as to any matter of procedure, unless, after an 

examination of the entire cause, including the evidence, the court shall be of 

the opinion that the error complained of has resulted in a miscarriage of 

justice.”
13

On appeal, Plaintiff contends the trial court erred: (1) in ruling on 

Defendants’ summary judgment motion at a time when, according to 

Plaintiff, Pfingst owed outstanding discovery responses to the RFA #2; (2) in 

failing to deem admitted the requests for admission to Pfingst contained in 

the RFA #2; and (3) in granting summary judgment, despite the existence of

triable issues of material fact. As we explain, Plaintiff did not meet her 

burden of establishing reversible error, because: (1) Plaintiff did not oppose 

Defendants’ summary judgment motion on the basis of any outstanding 

discovery, thereby forfeiting appellate review of the issue; (2) Plaintiff never 

filed a motion to deem admitted the requests in RFA #2; and (3) Plaintiff did 

not present any substantive argument or any application of the law to the 

evidence in her opposition to the summary judgment motion, thereby 

forfeiting appellate review of the order granting Defendants’ motion for 

summary judgment.

A. The Trial Court Ruled on Defendants’ Summary Judgment Motion

at a Time When Pfingst’s Discovery Responses Were Outstanding

Plaintiff argues that the trial court erred in ruling on Defendants’ 

summary judgment motion at a time when she was waiting for and entitled 

to outstanding discovery responses from Pfingst. She emphasizes her 

compliance with the rules and procedures required for serving the discovery 

requests by mail, as well as Pfingst’s failure to comply with similar rules and 

procedures for providing timely discovery responses. 

However, Plaintiff fails to also recognize that there are rules and 

procedures applied in summary judgment proceedings that every party must 

follow; and the focus of this appeal is on whether the trial court erred in 

ruling on the summary judgment motion when it did, not on the merits of the 

discovery dispute. In applying these rules and procedures, we conclude that, 

by failing to include in her opposition to Defendants’ summary judgment 
14

motion an explanation of the need for the outstanding discovery responses 

(and, accordingly, a request that the court deny the motion or continue the 

hearing), Plaintiff forfeited appellate review of her argument. That is 

because unless the party opposing the summary judgment motion makes a 

sufficient showing and request under section 437c, subdivision (h),12 the 

existence of outstanding discovery—even a pending motion to compel 

discovery (Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1056

(Roman))—is not a basis on which to deny (or continue) a summary judgment 

motion. Indeed, unless the party opposing the motion timely makes such a 

showing and request, that party forfeits appellate review of the issue.

In Roman, for example, at the time the trial court granted the 

defendants’ motion for summary judgment, the court had under submission 

the plaintiffs’ motion to compel further discovery responses from the 

defendants. (Roman, supra, 237 Cal.App.4th at pp. 1055-1056.) Like the 

issue Plaintiff presents here, the Roman court described the issue before it as 

follows: “Because their motion to compel further discovery was still pending, 

the [plaintiffs] contend the trial court should have denied [the defendants’] 

motion for summary judgment under section 437c, subdivision (h), to allow 

12 Section 437c, subdivision (h) provides in full: “If it appears from the 

affidavits submitted in opposition to a motion for summary judgment or 

summary adjudication, or both, that facts essential to justify opposition may 

exist but cannot, for reasons stated, be presented, the court shall deny the 

motion, order a continuance to permit affidavits to be obtained or discovery to 

be had, or make any other order as may be just. The application to continue 

the motion to obtain necessary discovery may also be made by ex parte 

motion at any time on or before the date the opposition response to the 

motion is due.”
15

more time for discovery.”13 (Id. at p. 1056.) The appellate court disagreed, 

ruling that the plaintiffs’ failure to have requested additional time resulted in 

a forfeiture of the argument on appeal:

“Although [section 437c, subdivision (h)] authorizes the 

trial court to either continue the hearing on the summary 

judgment motion or deny the motion to permit the opposing 

party to obtain necessary discovery, it was the [plaintiffs’]

responsibility to request such an order and to demonstrate, 

either in their opposition papers or in a separate application

filed no later than their opposition papers, that the missing 

discovery was required. . . . [The plaintiffs] did neither and, 

instead, argued the evidence before the court was sufficient 

to defeat summary judgment. Accordingly, they have 

forfeited this argument on appeal.” 

(Roman, at p. 1056, italics added; accord, Lewinter v. Genmar Industries, Inc.

(1994) 26 Cal.App.4th 1214, 1224 [by failing to seek relief under § 437c, 

subd. (h), the appellants “waived any objection to the trial court having ruled 

on the summary judgment motion before it decided their motion to compel”]; 

see generally Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 

818, fn. 36 [legal theory raised for first time on appeal following grant of 

summary judgment motion not considered].)

Here, too, Plaintiff failed to request additional time to obtain the 

outstanding discovery responses (and file a motion, if necessary) in her 

opposition to Defendants’ summary judgment motion. Thus, Plaintiff 

forfeited appellate review of this issue. 

13 By contrast, in the present appeal, because Plaintiff had not yet filed a 

discovery motion, her argument is one step further removed. She contends 

that, because discovery responses were merely anticipated, the court should 

have denied Defendants’ motion for summary judgment. 
16

Even if we were to reach the merits of Plaintiff’s argument, the result 

would be no different. 

Section 437c, subdivision (b)(2) requires that an opposition to a motion 

for summary judgment “be served and filed not less than 14 days preceding 

the noticed or continued date of hearing[.]” Based on the date of the 

continued hearing on Defendants’ motion (Sept. 13), therefore, Plaintiff’s 

opposition was due no later than August 30. According to Plaintiff’s 

presentation in support of her ex parte application to continue the hearing on 

the motion, August 30 was four days after Defendants’ responses to the 

second wave of discovery, including the RFA #2, were due. However, rather 

than waiting for the discovery responses (or Defendants’ default in providing 

them), Plaintiff filed her opposition to Defendants’ summary judgment 

motion on August 16—which was 10 days before Plaintiff expected the 

discovery responses, and 14 days before her summary judgment opposition 

was due. Significantly, nowhere in her memorandum of points and 

authorities in opposition to Defendants’ motion or in her response to 

Defendants’ separate statement of undisputed material facts did Plaintiff 

mention existing discovery requests, outstanding discovery responses, 

potential discovery motions, or possible need for a further continuance of the 

summary judgment hearing to obtain the outstanding discovery responses. 

Very simply, by having filed her opposition to the summary judgment motion 

10 days before the discovery responses were due, Plaintiff cannot establish 

that she was prejudiced by Pfingst’s failure to respond to the RFA #2 10 days 

later.14 (§ 475.)

14 With regard to potential prejudice, Plaintiff tells us: “The matters 

specified in Plaintiff’s [RFA #2] were designed to eliminate the need for proof 

at trial which is the purpose of requests for admission. The [RFA #2] 
17

In any event, Plaintiff’s legal argument, had it not been forfeited, does 

not persuade us otherwise. Plaintiff relies on a number of cases for the 

proposition that a court should not grant summary judgment unless the 

party opposing the motion has been given “ ‘adequate time for discovery.’ ” 

(Citing numerous inapplicable federal authorities; we will assume without 

deciding that state law authorities are similar.) In the present case, however, 

Plaintiff had more than adequate time to conduct discovery prior to the filing 

of Defendants’ motion for summary judgment: Plaintiff filed her complaint in 

March 2018; and Defendants filed their summary judgment motion more 

than 14 months later in May 2019. The fact that Plaintiff voluntarily chose 

to wait until late June 2019 to initiate discovery—i.e., more than a month 

after receipt of Defendants’ motion—does not convince us that additional 

time was needed to complete discovery. The 14 months that preceded the 

filing of Defendants’ motion was “adequate time” for Plaintiff to have 

completed whatever discovery she now contends she needed to oppose 

Defendants’ motion—a motion that was directed only to Plaintiff’s lack of 

evidence to support the elements of the causes of action alleged.

specifically concerned the only remaining issues of Plaintiff’s malpractice 

case. [Record reference.] The effect of these request[s] being deemed 

admitted was to remove all issues raised by the summary judgment motion.” 

Plaintiff emphasized this issue at oral argument. 

Without more, however, Plaintiff forfeited appellate review of her 

prejudice argument. (Mireskandari v. Gallagher (2020) 59 Cal.App.5th 346, 

371 (Mireskandari) [appellate review forfeited where appellant fails to 

“provide any legal argument or citation to authority”]; see rule 8.204(a)(1)(B) 

[each point must be supported “by argument and, if possible, by citation of 

authority”].) Even if we were to consider the argument, the result would be 

no different, because, in order to establish prejudice, at a minimum, Plaintiff 

was required to identify which of the 64 requests for admission in RFA #2 she 

was relying on to negate which element(s) of which cause(s) of action. 
18

B. The Trial Court Did Not Deem Admitted the Requests in the RFA #2

Plaintiff argues that the trial court erred in failing to deem the 

requests in the RFA #2 admitted. According to Plaintiff, because Pfingst 

failed to timely serve his responses to RFA #2, “the court erred by failing to 

hear Plaintiff’s motion to deem the requests admitted.”15

Plaintiff’s argument necessarily fails, however, since at the time the 

court granted Defendants’ summary judgment motion, Plaintiff had not filed 

a discovery motion to deem admitted the requests in the RFA #2. As Plaintiff 

explained (in support of her ex parte application for an order shortening time 

to hear the discovery motion), in September 2019, after the clerk of the court 

gave her a January 2020 hearing date for her discovery motion, she instead 

sought an order shortening time to have the motion heard. Very simply, 

Plaintiff never filed her motion, Defendants never had the opportunity to 

oppose her motion, and the court never had the responsibility to rule on her

motion.

In fact, since Plaintiff had been given a hearing date for her motion, her

displeasure is with the date she was given by the clerk, and her actual 

complaint is that the court did not grant her September 2019 ex parte 

application for an order shortening time to hear her motion to deem the 

requests admitted. However, that is not what Plaintiff is arguing on 

appeal;16 rather, as she emphasized at oral argument, she contends that the 

15 Section 2033.280, subdivision (b) provides in part that, if a party fails 

to serve a timely response to requests for admission, then “[t]he requesting 

party may move for an order that . . . the truth of any matters specified in the 

requests be deemed admitted, as well as for a monetary sanction[.]” 

16 Nor could she make such an argument. A fair reading of the reporter’s 

transcript of the hearing on Plaintiff’s ex parte application indicates that, 
19

court was required to hear her discovery motion and deem the RFA #2 

admitted prior to hearing Defendants’ summary judgment motion. Plaintiff 

presents no authority for her position, and we are aware of none. To the 

contrary, absent circumstances not presented here, the trial court has the 

discretion to control the courtroom and its calendar. (Hernandez v. Superior 

Court (2004) 115 Cal.App.4th 1242, 1246 [set trial date and reopen 

discovery].)

In any event, even if we were to consider the trial court’s exercise of 

discretion in failing to shorten time as Plaintiff had requested, there was no 

abuse, since the only reason Plaintiff needed an order shortening time was 

that she had waited more than 16 months to serve the RFA #2 that were the 

subject of her motion. Plaintiff’s significant delay in initiating discovery does 

not require the trial court to accommodate Plaintiff’s scheduling of court 

hearings on shortened notice.

Moreover—and conclusively—even if we were to assume both that 

Plaintiff had filed a motion to deem the requests in the RFA #2 admitted and 

that the trial court erred in failing to rule on the RFA #2 motion before 

hearing Defendants’ summary judgment motion, Plaintiff has not 

established, and cannot establish, the requisite showing of prejudice. That is 

because Plaintiff cannot show that, if the court had ruled on the RFA #2 

motion, “ ‘ “it is reasonably probable that a result more favorable to [Plaintiff] 

would have been reached.” ’ ” (Pool, supra, 42 Cal.3d at p. 1069.) Plaintiff 

assumes, without legal authority, that if the court had ruled on her motion, 

when asked by the court, Plaintiff agreed to the court’s proposal, which 

eventually became the court’s ruling (that Pfingst must supply the discovery 

responses within 10 days and, if necessary, Plaintiff could return ex parte to 

schedule a hearing on her motion). (See fn. 6, ante.)
20

then the court would have granted her motion.17 Her argument fails to 

consider, let alone analyze, any potential defense Pfingst could have 

presented to her motion—as we explain next. 

Even if we were to further assume that Plaintiff could make the initial 

statutory showing to have the requests in the RFA #2 deemed admitted,

relief under section 2033.280 is not mandatory just because requests for 

admission were properly served and responses were not. Under 

subdivision (c), the trial court would have been required to deny the motion 

(despite Plaintiff’s showing of proper service of the RFA #2), in the event 

Pfingst had provided Plaintiff with “a proposed response to the requests for 

admission that is in substantial compliance with Section 2033.220” at any 

time prior to the hearing on Plaintiff’s motion. (§ 2033.280, subd. (c); see 

St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 778 [“a responding 

party’s service of a tardy proposed RFA response that is substantially codecompliant will defeat a deemed admitted motion”].) Given the showing of 

Defendants’ timely responses to Plaintiff’s other discovery requests, there is 

no reason to believe that Pfingst would not have responded to the RFA #2 by 

the statutorily extended deadline; but we need not speculate, because 

Plaintiff never filed a motion to deem the RFA #2 admitted.

For the foregoing reasons, Plaintiff has not established that the trial 

court erred in not granting her (unfiled) motion to deem admitted the 

requests in the RFA #2.

17 Even if we assume that the trial court would have granted a motion to 

deem the RFA #2 admitted, Plaintiff still has not shown how such an order 

might have affected her opposition to, and the court’s ruling on, Defendants’ 

motion for summary judgment. As we noted at footnote 14, ante, at no time 

has Plaintiff shown, or even attempted to explain, how Pfingst’s responses to 

the RFA #2 might have provided a defense to the summary judgment motion.
21

Although we could end our discussion of this issue at this point, we are 

aware of and fully appreciate that, as a self-represented litigant, Plaintiff 

perceived that she was treated unfairly when the trial court failed to grant 

her (unfiled) motion. We take seriously such claims of unfair treatment 

regardless of the context, even those (like here) where the complainant fails 

to provide any example of the trial court’s or counsel’s improper consideration 

of financial status. Accordingly, we have independently reviewed the record 

on appeal, as augmented and corrected, and have found no indication of any 

such impropriety. While we do not know why the trial court asked defense

counsel which law firm she was associated with—an inquiry that was 

arguably irrelevant to the issue in dispute—the court was not comparing or 

contrasting counsel with Plaintiff. At most the court was comparing or 

contrasting counsel’s firm with other law firms. Indeed, at the hearing, the 

court expressly explained to Plaintiff that it believed her: “I have no reason 

to believe that you didn't send the[ RFA #2].”18

C. The Trial Court Granted Defendants’ Motion for Summary Judgment

Plaintiff argues that summary judgment can be granted only when 

there is no triable issue of material fact. While that statement, and many 

others in part III. of her opening brief, accurately state the statutory and 

common law standards, rules, and procedures to be applied in summary 

judgment proceedings, Plaintiff’s entire substantive argument provides

in full: “Plaintiff contends that Defendants failed to meet their burden of 

18 Even if the court had affirmatively believed Plaintiff and disbelieved 

counsel, Plaintiff still would not have been entitled to have her (unfiled) 

motion—to which Defendants were entitled to file opposition—heard at the 

time of the ex parte hearing. The court gave Plaintiff the authorization to 

return ex parte for a hearing date on the motion in 10 days if she believed she 

still was entitled to relief. 
22

showing that no triable issues of material fact existed and they are entitled to 

judgment as a matter of law.” By this limited presentation, Plaintiff forfeited 

appellate review of the ruling granting summary judgment. 

“Although we examine the trial court’s decision [granting summary 

judgment] independently [(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 

826, 860 (Aguilar))], the scope of our review is limited to those issues that 

have been adequately raised and supported in the appellant’s brief.” (Lee v. 

Kim (2019) 41 Cal.App.5th 705, 721.) In this regard, Plaintiff’s burden on 

appeal here “ ‘includes the obligation to present argument and legal authority

on each point raised. This requires more than simply stating a bare assertion 

that the judgment, or part of it, is erroneous and leaving it to the appellate 

court to figure out why; it is not the appellate court’s role to construct 

theories or arguments that would undermine the judgment[.]’ ” (Ibid.; see 

rule 8.204(a)(1)(B) [each point in a brief must be supported “by argument 

and, if possible, by citation of authority”].) “One cannot simply say the court 

erred, and leave it up to the appellate court to figure out why.” (Niko v. 

Foreman (2006) 144 Cal.App.4th 344, 368 (Niko).) 

“Where [as here] an appellant fails to present argument or legal 

authority, he or she forfeits appellate consideration of the issue.” (Kinsella v. 

Kinsella (2020) 45 Cal.App.5th 442, 464; accord, Mireskandari, supra, 59 

Cal.App.5th at p. 371 [appellate review forfeited where appellant fails to 

“provide any legal argument or citation to authority”]; Delta Stewardship 

Council Cases (2020) 48 Cal.App.5th 1014, 1075 [“When an appellant . . . 

asserts [a point] but fails to support it with reasoned argument and citations 

to authority, we treat the point as forfeited.”].) In Guthrey v. State of 

California (1998) 63 Cal.App.4th 1108, for example, the trial court granted 

the defendants’ motion for summary judgment, and—just as Plaintiff in the 
23

present case—on appeal the plaintiff “cite[d] only general legal principles 

without relating them to any specific facts or admissible evidence.” (Id. at 

p. 1115.) Deeming the plaintiff/appellant’s brief “ ‘ “ ‘a mere challenge to 

respondents to prove that the [trial] court was right,’ ” ’ ” the appellate court 

ruled that the plaintiff/appellant had forfeited appellate review of the issue. 

(Id. at pp. 1115-1116.) “ ‘This court is not inclined to act as counsel for . . . 

any appellant and furnish a legal argument as to how the trial court’s rulings 

[may be erroneous].’ ” (Niko, supra, 144 Cal.App.4th at p. 368.) In applying 

the same standard here, we reach the same conclusion—namely, that 

Plaintiff forfeited appellate review of the issue.

Even if we were to consider the merits of Plaintiff’s argument, the 

result would be no different.

A defendant (like Defendants here) is entitled to a summary judgment 

on the basis that the “action has no merit” (§ 437c, subd. (a)(1)) only where 

the court is able to determine from the evidence presented that “there is no 

triable issue as to any material fact and that the moving party is entitled to a 

judgment as a matter of law” (§ 437c, subd. (c)). A cause of action “has no 

merit” if one or more of the elements of the cause of action cannot be 

established or an affirmative defense to the cause of action can be established 

as a matter of law. (§ 437c, subd. (o).) Thus, the moving defendant has the 

ultimate burden of persuasion19 that one or more elements of the cause of 

action at issue “cannot be established” or that “there is a complete defense to 

that cause of action.” (§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at 

19 The burden of persuasion, sometimes referred to as the burden of proof, 

means the obligation of a party “to establish by evidence a requisite degree of 

belief concerning a fact in the mind of the trier of fact or the court.” (Evid. 

Code, § 115.)
24

pp. 849, 850, 853-854.) In attempting to achieve this goal, the defendant has 

the initial burden of production20 to make a prima facie showing of the 

nonexistence of any triable issue of material fact. (§ 437c, subd. (p)(2);

Aguilar, at p. 850.) If the defendant meets this burden, then the burden of

production shifts to the plaintiff to establish the existence of a triable issue of 

material fact. (§ 437c, subd. (p)(2); Aguilar, at pp. 850-851.)

Given this standard, our de novo review would result in the same 

analysis and conclusion as the trial court’s. Defendants met their initial 

burden of establishing, through the submission of expert testimony, that 

Plaintiff cannot establish at least one of the elements in each of the two 

causes of action—i.e., breach of duty. More specifically, the experts’ 

testimony—to which there were no evidentiary objections—included their 

qualifications and established that each of Defendants met the standard of 

care in the Federal Court Action.21 Where, in summary judgment 

proceedings, “ ‘the moving party produces a competent expert declaration 

showing there is no triable issue of fact on an essential element of the 

opposing party’s claims, the opposing party’s burden is to produce a 

competent expert declaration to the contrary.’ ” (Fernandez v. Alexander

20 The burden of production means “the obligation of a party to introduce 

evidence sufficient to avoid a ruling against him on the issue.” (Evid. Code, 

§ 110.)

21 The trial court also ruled that Defendants met their initial summary 

judgment burden by establishing that Plaintiff could not prove causation or 

damages—both elements of both of the causes of action at issue. Because we 

decide that Defendants met their initial burden based on the evidence and 

argument related to breach of duty, we have not considered (and thus express 

no opinion on) Defendants’ showing or argument related to causation or 

damages.
25

(2019) 31 Cal.App.5th 770, 779.) Because Plaintiff did not produce any 

expert evidence to the contrary, she necessarily failed to meet her responsive 

burden. (Ibid.; Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761-

762.)

III. DISPOSITION

The judgment is affirmed. Defendants are entitled to their costs on 

appeal. (Rule 8.278(a)(2).)

IRION, J.

WE CONCUR:

HALLER, Acting P. J.

DATO, J.