Burrell v. LA County Dept. of Health Services

Filed 3/11/08 Burrell v. LA County Dept. of Health Services CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from orders of the Superior Court of Los Angeles County, Alan S. Rosenfield, Judge. Dismissed in part; affirmed in part.

Dwayne Cedric Burrell, in pro. per., for Plaintiff and Appellant.

Manning & Marder, Kass, Ellrod, Ramirez, Mary M. Kocsis and Steven J. Renick for Defendants and Respondents County of Los Angeles, Pat Brady, Doug Smith, and David Zamorano.

Colantuono & Levin, Katherine A. Paspalis and Sandra J. Levin for Defendants and Respondents Los Angeles City Civil Service Commission and Frank Binch.

introduction

Plaintiff Dwayne Cedric Burrell appeals from orders of dismissal following the trial courts sustaining, without leave to amend, the demurrer filed by defendants the County of Los Angeles (the County) and Pat Brady. He also appeals from an order of dismissal following the trial courts granting the motion to quash service of summons filed by defendants Doug Smith and David Zamorano. Because we find that Burrells notice of appeal was untimely as to these defendants, we dismiss the appeal as to them.

Burrell further appeals from an order of dismissal following the trial courts sustaining, without leave to amend, the demurrer filed by defendants the Los Angeles County Civil Service Commission (the Civil Service Commission), and Frank Binch. Because appellant failed to provide an adequate record on appeal to permit our review of the issues involved, and also failed to present any legal argument or authority in support of his appeal in this regard, we affirm the order of dismissal as to the Civil Service Commission and Binch.

factual and procedural background

On November 30, 2005, Burrell filed a complaint contending that he was improperly removed from his employment with the County based upon unfounded charges made against him. In his complaint he attempted to allege causes of action for conspiracy, retaliation, deceit, breach of duty, and wrongful termination.[1]

The defendants filed a demurrer to the complaint, although none of the defendants documents related to the demurrer are contained in the record on appeal. Burrell filed timely opposition to the demurrer; however, the trial court sustained the demurrer with leave to amend.

Burrell filed a verified first amended complaint on April 7, 2006. He named Smith and Zamorano, and Does 3 through 75, as defendants. Smith and Zamorano specially appeared and filed a motion to quash service of summons, asserting that Burrell had not sought leave of court to add them as parties or to substitute them as Doe defendants (Code Civ. Proc.,  418.10), and that he had not properly served them because he mailed copies of the complaint to them rather than effecting personal service.

The remaining defendants filed demurrers to the first amended complaint.^[2]Burrell did not file timely opposition to either the demurrers or to the motion to quash. On the date on which the defendants reply papers were due, the defendants instead filed notice that no opposition had been served on them. Two days later, Burrell filed opposition to the demurrer brought by the County and Brady, and to the motion to quash. Burrell did not file opposition to the demurrer filed by the Civil Service Commission and Binch.

On May 23, 2006, at the conclusion of the hearing on the demurrers and motion to quash, the court sustained both demurrers without leave to amend on the basis that Burrell failed to state a cause of action. The court also granted the motion to quash service of summons.

Burrell filed a motion for reconsideration on June 2, 2006.

An order of dismissal and judgment in favor of the Civil Service Commission and Binch was entered on June 5, 2006. On June 7, 2006, an order of dismissal following the sustaining of the demurrer as to the County and Pat Brady was filed and executed by the court. An order of dismissal following granting of the motion to quash was also entered on June 7, 2006, and executed by the court. The County of Los Angeles and Pat Brady filed and served notice of entry of the order of dismissal on June 16, 2006, and filed the notice on June 19, 2006. The specially appearing defendants, Smith and Zamorano, also served a notice of entry of the order of dismissal, and filed the notice, on the same dates.

Despite the earlier entry of the orders of dismissal as to each defendant, Burrells motion for reconsideration was heard and denied on July 13, 2006.

On July 19, 2006, the Civil Service Commission and Binch filed and served notice of entry of the order of dismissal and judgment in their favor.

On September 11, 2006, Burrell filed a notice of appeal.

discussion

I. The County of Los Angeles, Brady, Smith, and Zamorano

If it appears that an appeal was not taken within the relevant jurisdictional period, an appellate court has no discretion but must dismiss the appeal of its own motion, even if no objection is made. (See Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1458; Estate of Hanley (1943) 23 Cal.2d 120, 123.) Because, as we shall explain, we conclude that the notice of appeal was untimely as to the County, Brady, Smith and Zamorano, we dismiss the appeal as to those defendants.

Hearing on the County and Bradys demurrer and Smith and Zamoranos motion to quash service of summons took place on May 23, 2006. The trial court sustained the demurrers, and granted the motion to quash. After orders of dismissal as to all defendants were entered in early June, the County and Brady served a notice of entry of the order of dismissal on June 16, 2006. Smith and Zamorano also served a notice of entry of the order of dismissal in their favor, on June 16, 2006. Mr. Burrell filed his notice of appeal on September 11, 2006.

Burrell had previously filed a motion for reconsideration on June 2, 2006. However, the trial court lost jurisdiction to rule on the pending motion for reconsideration when it entered judgments in favor of these defendants on June 7, 2006. (APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 181. See also Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 859 [trial court may not rule on motion for reconsideration after entry of judgment]; Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 192.) An order of dismissal is a judgment (Code Civ. Proc.,  581d), and therefore a motion for reconsideration does not lie after a dismissal. Furthermore, a postjudgment motion for reconsideration does not extend the time to appeal from the judgment. (Crotty v. Trader (1996) 50 Cal.App.4th 765, 770-771; Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1605-1606.)

California Rules of Court, rule 8.104(a) provides that [u]nless a statute or rule 8.108 provides otherwise,[[3]]a notice of appeal must be filed on or before the earliest of: [] (1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled Notice of Entry of judgment or a file-stamped copy of the judgment, showing the date either was mailed; [] (2) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled Notice of Entry of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or [] (3) 180 days after entry of judgment. Pursuant to rule 8.104(a)(2), Burrell had 60 days after service of the notices of entry of the orders of dismissal occurred on June 16, 2006. Burrells notice of appeal, filed September 11, 2006, was clearly untimely.[4]

Rule 8.104(b) provides: Except as provided in rule 8.66 [not applicable here], no court may extend the time to file a notice of appeal. If a notice of appeal is filed late, the reviewing court must dismiss the appeal. Thus, we must dismiss the present appeal with regard to the County and Brady, and as to Smith and Zamorano.

In so doing, we note that pro. per. litigants are held to the same standards as those represented by counsel. A litigant has a right to act as his own attorney [citation] but, in so doing, should be restricted to the same rules of evidence and procedure as is required of those qualified to practice law before our courts; otherwise, ignorance is unjustly rewarded. (Lombardi v. Citizens Nat. Trust etc. Bank (1955) 137 Cal.App.2d 206, 208-209.) A litigants pro. per. status does not exempt that litigant from the rules of procedure. (Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1056; see also City of Los Angeles v. Glair (2007) 153 Cal.App.4th 813, 819.)

Because we conclude that the notice of appeal was not filed in a timely manner, we are without jurisdiction to consider the merits of the appeal.

Accordingly, we dismiss the appeal from the orders of dismissal as to the County and Brady, and Smith and Zamorano. We proceed, however, to briefly discuss the appeal with regard to the order dismissing respondents the Civil Service Commission and Binch.

II. The Civil Service Commission and Binch

Burrell did not designate for inclusion in the record on appeal the demurrer to the first amended complaint filed by the Civil Service Commission and Binch. He did not file opposition to that demurrer in the trial court. In his appellate brief, Burrell does not present any legal argument or cite to any legal authority in support of the sufficiency of his first amended complaint to state any cause of action against the Civil Service Commission and Binch.

[A]n appellant must affirmatively demonstrate error through reasoned argument and discussion of legal authority. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.) Simply hinting at an argument and leaving it to the appellate court to develop it is not adequate. (Cryoport Systems v. CNA Ins. Cos. (2007) 149 Cal.App.4th 627, 633.) Appellants opening brief does not discuss the substantive legal issues involved in the trial courts sustaining of the demurrer to the first amended complaint without leave to amend. Accordingly, we do not address the merits of the bases relied upon by the trial court for sustaining the demurrer. Indeed, the record provided by appellant makes it impossible for us to do so. Although our review of a judgment of dismissal entered after a demurrer is sustained without leave to amend is de novo, it is limited to issues which have been adequately raised and supported in appellants brief. (See Kim v. Sumitomo Bank, supra, 17 Cal.App.4th at p. 979; Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1016, fn. 5; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.) Issues not raised in an appellants brief are deemed abandoned. (Tan v. California Fed. Sav. & Loan Assn. (1983) 140 Cal.App.3d 800, 811.) To hold otherwise would negate the doctrine of waiver and require this court to act as appellants counsel on appeal, ferreting out all possible legal issues which might support reversal of the judgment. That is not our role. Accordingly, we affirm the order of dismissal entered in favor of the Civil Service Commission and Binch.

disposition

The appeal is dismissed with regard to the challenged orders of dismissal in favor of the County of Los Angeles, Pat Brady, Doug Smith, and David Zamorano. The order of dismissal in favor of the Los Angeles County Civil Service Commission and Frank Binch is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J. SUZUKAWA, J.

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[1] Specially appearing defendants Doug Smith and David Zamorano were not named as defendants in the complaint.

[2] The Civil Service Commission and Binch filed a demurrer, and the County and Brady filed a separate demurrer.

[3] Rule 8.108(d) provides: If any party serves and files a valid motion to reconsider an appealable order under Code of Civil Procedure section 1008, subdivision (a), the time to appeal from that order is extended for all parties until the earliest of: [] (1) 30 days after the superior court clerk mails, or a party serves, an order denying the motion or a notice of entry of that order; [] (2) 90 days after the first motion to reconsider is filed; or [] (3) 180 days after entry of the appealable order. That rule is not applicable here because the court lost jurisdiction to consider the motion for reconsideration when it entered dismissals in favor of the defendants. In any event, even if rule 8.108(e) was applicable, the notice of appeal, filed on September 11, 2006, was filed more than 90 days after Burrell filed his motion for reconsideration on June 2, 2006. (Rule 8.108(e)(2).)

[4] The notice of appeal was timely as to the notice of entry of order filed and served by the Civil Service Commission and Binch on July 19, 2006, less than 60 days prior to September 11, 2006.