Filed 9/1/20 Bauman v. Thrifty Payless 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

JORDANA BAUMAN,

Plaintiff and Appellant,

v.

THRIFTY PAYLESS, INC.,

Defendant and Respondent.

 D075900

 (Super. Ct. No. 37-2011-00096614-

 CU-NP-CTL)

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

Richard E.L. Strauss, Judge. Affirmed.

Jordana Bauman, in pro. per., for Plaintiff and Appellant.

Grimm, Vranjes & Greer, Gregory D. Stephan and Nima D. Shull for 

Defendant and Respondent.

In this personal injury action originally filed in 2011, self-represented 

plaintiff Jordana Bauman appeals a judgment entered after the trial court 

granted defendant Thrifty Payless, Inc.’s (Thrifty) motion for summary 

judgment. The motion was granted after the court deemed admitted certain 

crucial facts that were the subject of requests for admission Bauman failed to 

respond to. Bauman also did not respond to the summary judgment motion. 
2

On appeal she does not directly challenge either of these rulings. Instead, 

she seeks to contest various actions by the trial judge over the course of the 

litigation that she claims contributed to the ultimate result. Finding no 

merit to her arguments, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2011 Bauman filed a personal injury complaint against 

Thrifty based on injuries she sustained in a fall at the Rite Aid drug store 

owned and operated by Thrifty. The case was assigned to Judge Richard 

E. L. Strauss for all purposes. Roughly one month later, Bauman filed for 

protection under chapter 13 of the federal Bankruptcy Act. (11 U.S.C. § 1301 

et seq.) Informed of this in January 2012, Judge Strauss stayed the state 

court action. 

The initial stay remained in effect until June 2014. At that point, 

Judge Strauss lifted the stay and set a case management conference for 

September. Prior to that conference however, Bauman requested and the 

court granted an ex parte stay of discovery in the case as to her personally, 

setting a series of status conferences that were continued over the course of 

the next 12 months. Finally in October 2015, the case was deemed at issue, 

the discovery stay was lifted, and trial was set for May 2016. 

The parties were engaged in disputes over discovery when, in January 

2016, Bauman filed a new chapter 13 bankruptcy petition. Judge Strauss 

again ordered the state court action stayed and set a status conference for 

April, which was continued on successive occasions for nearly two and a half 

years. In the meantime, in May 2016 Bauman filed a peremptory challenge 

directed to Judge Strauss, which he summarily denied. (See Code Civ. Proc., 

§ 170.6.)
3

On July 20, 2018, the bankruptcy court denied Bauman’s motion to 

extend the automatic stay, which had expired on June 11. At the superior 

court status conference on September 28, Judge Strauss found there was no 

longer any automatic stay as a result of the bankruptcy action. Accordingly, 

he ordered Thrifty to re-serve Bauman with the discovery motions that were 

originally filed in January 2016 and set a hearing on the motions for 

November 2, 2018. 

Bauman filed no timely opposition to Thrifty’s discovery motions, which 

included various motions to compel as well as a request to deem certain facts 

admitted based on Bauman’s failure to respond to requests for admission. 

Instead, on the date set for the hearing, she filed an “objection” to the 

motions along with a request for a continuance “as a special accommodation”

pursuant to the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 

et seq.) and California Rules of Court, rule 1.100.1 Among other things, she 

claimed to be a “disabled” litigant who required extra time to respond. The 

court denied the objection and request as untimely and granted the 

unopposed discovery motions. It also imposed sanctions of $600 against 

Bauman in conjunction with the motions to compel. 

Thrifty then filed a motion for summary judgment based on the fact 

that Bauman’s “judicially deemed admissions establish that [she] cannot 

establish the elements of the causes of action alleged in her Complaint.” 

Again, Bauman filed no timely opposition and the court granted Thrifty’s 

unopposed motion. Judgment was entered accordingly. 

1 All subsequent rule references are to the California Rules of Court.
4

DISCUSSION

Sensitive to the challenges faced by self-represented litigants on 

appeal, we nonetheless summarize some basic rules of the appellate process. 

We start with a presumption that the judgment or order being appealed is 

correct. (E.g., Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 

424, 443.) It is the appellant’s burden to show the contrary. (In re Marriage 

of Gray (2002) 103 Cal.App.4th 974, 978.) To demonstrate error, the 

appellant’s brief must present a coherent statement of the relevant facts 

supported by appropriate citations to the record. (Nielsen v. Gibson (2009) 

178 Cal.App.4th 318, 324; Boeken v. Philip Morris, Inc. (2005) 127 

Cal.App.4th 1640, 1658; Rule 8.204(a)(1)(C).) The brief must also clearly 

articulate the appellant’s legal arguments, accompanied by authority to 

support them. (Rule 8.204(a)(1)(B); McComber v. Wells (1999) 72 Cal.App.4th 

512, 522.) As a corollary of these principles, it is the appellant’s additional 

obligation to provide the court with a complete record of the relevant 

proceedings sufficient to support any claims of error. (E.g., Maria P. v. 

Riles (1987) 43 Cal.3d 1281, 1295.)

In this case, Bauman’s opening brief begins with a five-page statement 

of “background facts” that includes not a single citation to the record. 

Instead, it reads as a personal narrative of what Bauman thinks the case is 

about. The argument that follows bounces between several different ways in 

which Bauman believes the trial court mishandled the case, only occasionally 

supported by any legal authority and almost never connected to explaining 

why the court erred in granting the motion for summary judgment. 

As best as we can discern, Bauman’s arguments fall into three 

categories. She asserts: (1) as a result of the various bankruptcy stays, the 

trial court had no jurisdiction to schedule repeated status conferences during 
5

the period between March 2014 and September 2018; (2) the court should 

have disqualified itself for bias and, in any event, mishandled the 

disqualification motion she filed; and (3) the court abused its discretion by 

denying her motions to stay or continue proceedings due to her disability. We 

address each set of arguments in turn. Finally, we explain why several 

additional contentions made by Bauman for the first time in her reply brief 

cannot be considered and, in any event, lack merit.

1. Status Conferences During a Pending Bankruptcy

Bauman’s action was effectively stayed between March 14, 2014 and 

October 30, 2015, and then again between January 25, 2016 and June 11, 

2018. Bauman was not required to respond to discovery during these periods. 

On September 28, 2018 when it determined there was no longer any 

bankruptcy stay in effect, the court required Thrifty to re-serve Bauman with 

all outstanding discovery motions. It was Bauman’s failure to respond to 

discovery requests served on her in November 2015—and in particular the 

requests for admission—that led to the court deeming certain critical facts 

admitted, and ultimately to the ruling granting Thrifty’s motion for summary 

judgment.

Bauman does not challenge the court’s finding that as of June 11, 2018, 

there was no longer any operative bankruptcy stay. Instead she complains 

she was “harass[ed]” by the trial court, which required her “to appear at all 

status conferences,” typically scheduled once every six months, so that Judge 

Strauss could be updated on the status of the bankruptcy proceedings. 

According to Bauman, the court should have “just stopp[ed] everything until 

the defendant [wa]s able to report there are no more bankruptcies.”

As a preliminary matter, it is not at all clear that Bauman’s state court 

action in which she appeared as a plaintiff was stayed by the filing of a 
6

bankruptcy petition. “California decisional authority holds, based on the 

plain language of [11 U.S.C.] section 362(a)(1), the automatic stay is 

inapplicable to superior court actions initiated by the debtor.” (Shah v. 

Glendale Federal Bank (1996) 44 Cal.App.4th 1371, 1375.) Bauman responds 

that a personal injury claim belongs to the estate and a debtor-plaintiff has 

no standing under federal law unless and until the bankruptcy trustee 

abandons the particular claim. Although Bauman might be correct as to a 

chapter 7 petitioner (see Haley v. Dow Lewis Motors, Inc. (1999) 72 

Cal.App.4th 497, 511),2 a chapter 13 debtor would appear to have standing to 

prosecute an action as a plaintiff. (See, e.g., Smith v. Experian Information 

Solutions, Inc. (N.D.Cal., Apr. 26, 2017, No. 16-cv-04651-BLF) 2017 U.S. Dist. 

Lexis 63548, *24‒*25; Foronda v. Wells Fargo Home Mortgage, Inc. (N.D.Cal., 

Nov. 26, 2014, No. 14-CV-03513-LHK) 2014 U.S. Dist. Lexis 165676, 

*10‒*11.)

In any event, Bauman cites no authority for the proposition that an 

automatic bankruptcy stay precludes a state court from conducting periodic 

conferences simply to ascertain the status of the bankruptcy proceedings. 

More importantly, perhaps, she never explains how she was harmed by the 

status conferences or how they in any way contributed to the court’s later 

decision to grant summary judgment against her. Under these 

circumstances, Bauman has failed to show that any purported error in 

conducting status conferences while proceedings were stayed affected the 

ultimate result.

2 The principal cases relied on by Bauman both involved chapter 7 

petitions. (See Lane v. Vitek Real Estate Industries Group (E.D.Cal. 2010) 

713 F.Supp.2d 1092, 1097; In re Corbett (Bankr. E.D.Cal., Mar. 14, 2016, 

No. 08-10861-A-7) 2016 WL 1045667, at *2.)
7

2. Attempt to Disqualify Judge Strauss

Apparently believing that the periodic status conferences reflected a 

bias against her, in May 2016 while this matter remained stayed Bauman 

sought to disqualify Judge Strauss by filing a peremptory challenge pursuant 

to Code of Civil Procedure section 170.6.3 The challenge was summarily 

denied, presumably as untimely. (See § 170.6, subd. (a)(2) [“If directed to the 

trial of a civil cause that has been assigned to a judge for all purposes, the 

motion shall be made . . . within 15 days after notice of the all purpose 

assignment”].) Citing section 170.3, subdivision (c)(5), Bauman claims Judge 

Strauss erred in failing to refer her challenge to a different judge for action. 

Bauman misunderstands the scope of subdivision (c)(5) of section 170.3. 

It relates to challenges for cause based on the grounds specified in section 

170.1. Pursuant to subdivision (c)(1) of section 170.3, a party who believes 

there are grounds for disqualification may advise the judge by filing a 

verified statement setting forth those grounds. In response, the judge may 

voluntarily consent to disqualification without conceding the adequacy of the 

grounds. (§ 170.3, subd. (c)(2) & (3).) If he or she does not consent, however, 

the judge must file a verified answer to the disqualification statement 

admitting or denying the allegations. (§ 170.3, subd. (c)(3).) At that point, 

according to the statute, the challenged judge “shall not pass upon his or her 

own disqualification.” (§ 170.3, subd. (c)(5).) Instead, “the question of 

disqualification shall be heard and determined by another judge.” (Ibid.)

But Bauman never sought to disqualify Judge Strauss for cause 

pursuant to section 170.1. The type of challenge Bauman filed in this case—

a peremptory challenge under section 170.6—utilizes a very different 

procedure. It is based not on specific statutory grounds, but on a party’s 

3 All statutory references are to the Code of Civil Procedure.
8

belief that the judge cannot be fair and impartial. (§ 170.6, subd. (a)(6).) 

There is no hearing on the adequacy of the purported basis for the party’s 

belief. (Maas v. Superior Court (2016) 1 Cal.5th 962, 972 [no requirement 

that challenging party “prove facts showing that the judge is actually 

prejudiced”].) If timely and in proper form, the judge must accept the 

challenge and ask to have the case reassigned. (§ 170.6, subd. (a)(4); The 

Home Ins. Co. v. Superior Court (2005) 34 Cal.4th 1025, 1032.) Thus, in the 

case of a peremptory challenge, the challenged judge decides the timeliness 

and procedural adequacy of the challenge. If proper, it must be granted; 

there is nothing left to refer to a different judge.

Moreover, even if Bauman were correct, her appellate claim is 

foreclosed. A petition for writ of mandate is the exclusive means to challenge 

the erroneous denial of a peremptory challenge under section 170.6. (People 

v. Hull (1991) 1 Cal.4th 266, 268.) Parties are not permitted to wait until 

entry of an adverse judgment, as Bauman did here, and then contest the 

denial of their section 170.6 challenge on appeal. (Hull, at p. 273.) Thus, 

both substantively and procedurally, Bauman’s disqualification contention 

fails.

3. Failure to Stay or Continue Based on Bauman’s Alleged Disability

With the last bankruptcy stay having expired in June, on September 

28, 2018 Judge Strauss ordered Thrifty to re-serve pending discovery motions 

that were originally filed in January 2016, setting a new hearing date on 
9

those motions for November 2.4 Bauman filed no opposition to these 

motions. Instead, on the date set for the hearing she filed an “objection” to 

the motion that included a request for a 90-day continuance of the hearing as 

a special accommodation due to her alleged disabilities. (See Rule 1.100.) 

Bauman made reference to “multiple brain injuries” that she claimed 

“severely impair[] her eyesight and her mobility,” and she offered to provide 

supporting medical records within 60 days if given leave to do so. The court 

denied the request as untimely. 

Rule 1.100 “governs requests for accommodations by persons with 

disabilities.” (In re Marriage of James & Christine C. (2008) 158 Cal.App.4th 

1261, 1272.) It is designed to further California’s important public policy of 

ensuring “that persons with disabilities have equal and full access to the 

judicial system.” (Rule 1.100(b).) To accomplish that goal, the rule provides 

a framework for requesting accommodations that will ameliorate the effect of 

disabilities on persons appearing before California courts. In particular, rule 

1.100(c)(3) specifically provides that “[r]equests for accommodation must be 

4 In her reply brief, Bauman complains she had insufficient time to 

respond to Thrifty’s discovery requests, pointing out that the court set the 

new hearing 35 days later and asserting that “all other parties are normally 

allowed 30 days just to answer discovery.” Bauman confuses the time for 

responding to discovery requests with the time for responding to a discovery 

motion. Thrifty’s discovery requests were originally served on Bauman in 

early November 2015 when no stay was in effect. Discovery issues were the 

subject of an ex parte conference with the court on January 14, 2016. A new 

stay may have arisen nearly three months later on January 25, 2016 when 

Bauman filed a new bankruptcy petition, but as we have explained that stay 

expired at least by June 11, 2018. Thus, even excluding time during which 

this action might have been stayed as a result of proceedings in bankruptcy 

court, Bauman had substantially more than 30 days to respond to discovery 

requests before the discovery motions were re-served in October 2018. 
10

made as far in advance as possible, and in any event must be made no fewer 

than 5 court days before the requested implementation date.”

In this case, Bauman filed her request for accommodation on the date of 

the hearing she wished to continue. Although the rule grants the court 

discretion to consider accommodation requests made with less than five days’

notice, it had no obligation to do so. And we can hardly say the court abused 

its discretion in denying Bauman’s untimely request. The case had already 

been pending for more than seven years, albeit stayed for most of that time. 

Moreover, Bauman’s request is framed in broad generalities. Her claimed 

disability allegedly arises from the slip-and-fall accident that forms the 

underlying basis for her lawsuit. It took place in 2010. She provided no 

specific details on why she was unable to file a timely opposition to Thrifty’s 

motions. Perhaps more importantly, she offered no explanation why she had 

to wait until the date of the hearing to make her request for a continuance. 

Coupled with concerns expressed by the bankruptcy court, we can 

understand why Judge Strauss might conclude the untimely accommodation 

request was merely another in a series of delaying tactics.

4. Other Contentions

In her reply brief, Bauman contends that her failure to oppose Thrifty’s 

motion for summary judgment should be excused because she was not served 

with the moving papers. She refers to one sentence in her opening brief, 

suggesting it was sufficient to alert Thrifty to the issue, and maintains that 

Thrifty’s failure to address the point amounts to a concession that service was 

not proper. 

Nothing in Bauman’s opening brief fairly argues that the trial court 

erred in granting Thrifty’s motion for summary judgment because she was 

not properly served. None of the five “Issues on Appeal” mentions service of 
11

the motion. Indeed, only one of the five even includes the words “summary 

judgment,” and then only in the context of asserting that the court erred in 

refusing to consider her request for a continuance as accommodation of her 

disabilities, which “would have avoided” a ruling on the summary judgment 

motion. 

In arguing a contrary interpretation, Bauman refers to a statement on 

page 13 of the opening brief. It appears in the context of recounting the 

many ways in which the trial court allegedly harassed her during the course 

of the litigation. Attempting to explain the dire straits she found herself in, 

she describes (without citation to the record) how at the same time as she 

was prosecuting this case she was also defending against a foreclosure action 

on her home brought by Wells Fargo Bank. “This was,” she says, “at the 

same time [Thrifty] moved for summary judgment.” She then adds, “This 

was further complicated by the failure of [Thrifty’s] counsel to serve their 

motion for summary judgment, and by the plaintiff’s inability to remember 

that this case even existed while she was fighting for her life against the 

fraudulent Foreclosure sale of her home . . . .” Again, there is no record 

reference to support the assertion.

It is well settled that arguments made for the first time in a reply brief 

are not properly considered absent a good explanation why they were not 

made earlier. (See, e.g., Neighbours v. Buzz Oates Enterprises (1990) 217 

Cal.App.3d 325, 335.) Bauman provides no such explanation, nor does she 

offer even belated record support for her assertion. As we have previously 

noted, Bauman’s arguments in her opening brief were almost entirely 

disconnected from the court’s summary judgment ruling, and the reply brief 

cannot be the first occasion where the appellant finally connects the dots.
12

Even were we to consider her contention on the merits, it would fail for 

at least two reasons. First, the claim is forfeited because Bauman never 

brought this alleged service deficiency to the attention of the trial court. It is 

a fundamental rule of appellate procedure that absent exceptions not 

applicable here, an appellant will not be heard to complain about claims of 

error that were not first raised in the trial court. (See, e.g., Walker v. Apple,

Inc. (2016) 4 Cal.App.5th 1098, 1113.) Second, the appellate record 

affirmatively refutes her assertion. It includes a declaration of service, 

signed under penalty of perjury, attesting to proper service on Bauman. 

Bauman cannot, by a naked assertion in her brief unsupported by any proper 

citation, contradict the record.5

Also for the first time in her reply brief, Bauman disputes the fact that 

she failed to respond to Thrifty’s discovery requests, which then led to the 

court granting Thrifty’s motion for summary judgment. In support of her 

assertion, she requests that this court take judicial notice of a clerk’s 

rejection letter dated November 30, 2018 that Bauman claims she received 

after she attempted to file a document dated November 13, 2018 and titled 

“Plaintiff’s Provisional Response to Discovery.” The document appears to 

bear a file stamp of November 15 that has been cancelled. The rejection 

letter explains that “Responses to Discovery shall be submitted to requesting 

party as they are not to be submitted to the Court.”

Understanding that Thrifty raises numerous procedural and 

substantive reasons why Bauman’s request for judicial notice is improper, we 

elect to assume without deciding that the clerk’s rejection letter and attached 

5 It goes without saying that Thrifty’s failure to specifically address 

Bauman’s unsupported factual assertion in her opening brief, unconnected as 

it is to the substance of her argument in that brief, does not amount to a 

concession of its accuracy. 
13

“Provisional Response” can be judicially noticed.6 At most these documents 

indicate that two weeks after the court’s ruling on Thrifty’s discovery motions 

to which Bauman failed to timely respond, she made an inadequate and 

untimely attempt to respond to the discovery requests that were the subject 

of the motions the court had already decided. Informed that discovery 

responses—untimely or otherwise—were not properly filed with the court, 

Bauman took no further action by filing a motion for reconsideration of the 

court’s November 2 ruling or in any other way. Nor did she respond to the 

pending motion for summary judgment. Bauman thus fails to establish any 

error by the trial court as to either the discovery motions or the subsequent 

summary judgment motion.

6 We reject Bauman’s request for judicial notice as to the other three 

documents she submits, two orders from other superior court judges in 

unrelated cases and what appears to be a PACER system docket listing of 

bankruptcies pursued by Bauman between 2010 and 2018. All are either 

irrelevant or unnecessary to the resolution of this appeal. (See Clark v. 

McCann (2015) 243 Cal.App.4th 910, 917, fn. 4.)
14

DISPOSITION

The judgment is affirmed. Respondent is entitled to its costs on appeal.

DATO, J.

WE CONCUR:

AARON, Acting P. J.

GUERRERO, J.