Castaneda v. Law Firm of Jack Conway
Filed 7/26/12 Castaneda v. Law Firm of Jack Conway CA2/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
ONE
JOSE CASTANEDA,
Plaintiff and Appellant,
v.
THE LAW FIRM OF JACK K. CONWAY
et al.,
Defendants and Respondents.
B229512
(Los Angeles
County
Super. Ct.
No. GC045202)
APPEAL from
a judgment of the Superior Court
of
County. Edward Simpson,
Judge. Affirmed.
Jose
Castaneda, in pro. per., for Plaintiff and Appellant.
Law Offices
of Jack K. Conway and Jack K. Conway, in pro. per., for Defendants and
Respondents.
__________________________________
>
Plaintiff
Jose Castaneda filed this appeal after the trial court granted his former
attorney’s motion for judgment on the pleadings in this
BACKGROUND
In May
2010, Castaneda filed this legal malpractice action against “The Law Firm of
Jack K. Conway”
title="">[1]
and attorney Jack K. Conway. (Hereafter,
we will refer to these two defendants collectively as Conway.) In June 2010, Castaneda filed a first amended
complaint, asserting causes of action labeled (1) “‘intentional’ legal
malpractice,” (2) “‘intentional’ negligence,” (3) “fraud, to commit
theft,” (4) “violation of plaintiff’s due process,” (5) “conspiracy to violate
rights,” and (6) “perversion of justice.”
Castaneda alleges that Conway
represented him in multiple actions. It
is not clear from the allegations of the original complaint or the first
amended complaint how Conway’s
conduct allegedly caused injury to Castaneda.
In July
2010, Conway filed an answer to the
first amended complaint. In August 2010, Conway
filed a motion for judgment on the pleadings arguing, among other things, that
the complaint does not state facts sufficient to constitute a cause of
action. Conway
asserted that the first amended complaint is uncertain because it does not
assert causes of action “recognized by law” and does not state “when the
allegedly wrongful acts were committed, where they were committed, and how the
wrongful acts caused damages to [Castaneda].”
Castaneda
did not file any pleading indicating that he was opposing the motion for
judgment on the pleadings on the merits.
At the September 24, 2010
hearing on the motion, Castaneda informed the trial court that his “opposition”
was a document he filed on September
20, 2010, labeled “Motion for Judgment to Plaintiff Based [on]
Exhibits 1-6.” In this document,
Castaneda argued that the court should enter a “default” against Conway
based on evidence purportedly showing that Castaneda did not receive “a fair
trial or hearing” in the cases in which Conway
represented him. Castaneda did not
present any argument opposing the merits of the
On September 24, 2010, the trial court
issued a minute order stating in pertinent part: “Motion for judgment on the pleadings is
granted as unopposed for the reasons stated in the moving papers. Plaintiff is granted 10 days to amend;
defendant 10 days thereafter to respond.”
On September 27, 2010 and October 7, 2010, Castaneda filed
motions to compel responses to interrogatories and requests for admissions he
had propounded to Conway. In opposition, Conway
demonstrated that he had served responses to Castaneda’s form interrogatories
and three sets of requests for admissions, before Castaneda filed the first
motion to compel. The trial court denied
the first motion to compel on or about October 6,
2010. Castaneda requested
that the trial court take the second motion to compel off calendar, and
apparently it was not heard.
name="_ftnref3" title="">[3]
On November 4, 2010—41 days after the
trial court granted the motion for judgment on the pleadings—Conway
filed a motion requesting that the court dismiss the action with prejudice
because Castaneda had not filed an amended complaint. Castaneda did not file an opposition to this
motion. On December 10, 2010—77 days after the trial court granted
the motion for judgment on the pleadings—the court heard oral argument and
granted Conway’s motion for a
On December 10, 2010, Castaneda filed a
notice of appeal, which we treat as a premature appeal from the judgment
entered on December 29, 2010. (Cal. Rules of Court, rule 8.104(d).)
DISCUSSION
Conway’s
appellate brief lists 20 “issues” on appeal.
All of these issues relate to actions Conway
took or failed to take while acting as Castaneda’s attorney. None of these issues address any claim of
trial court error in this case. “‘A
judgment or order of the lower court is presumed
correct. All intendments and presumptions are indulged
to support it on matters as to which the record is silent, and error must be
affirmatively shown.’” (
557, 564.)
Castaneda does not argue that the
trial court erred in granting Conway’s motion for judgment on the pleadings, a
motion that Castaneda did not oppose on the merits. A defendant may bring a motion for judgment on the
pleadings—after the defendant has filed an answer and the time to demur to the
complaint has expired—on grounds that the complaint fails to state facts
sufficient to constitute a cause of action against the defendant. (Code Civ. Proc., § 438, subds. (c)(1)(B)(ii)
& (f)(2).) Conway brought a proper
motion for judgment on the pleadings. The
first amended complaint does not state facts sufficient to constitute a cause
of action against Conway. The allegations
and legal theories asserted against Conway are unclear. For example, Castaneda does not explain how
Conway’s conduct in representing Castaneda led to an outcome in which Castaneda
was damaged.
title="">[4]
Nor does Castaneda argue that the
trial court erred in dismissing the action and entering judgment in favor of
Conway after Castaneda failed to file an amended complaint as the court
ordered. “Where a motion for judgment on
the pleadings is granted with leave to amend” and the plaintiff fails to file
an amended complaint, the defendant may “move for entry of judgment in its
favor.” (Code. Civ. Proc., § 438, subd.
(i)(1)(B).)
title="">[5]
The conclusion of Castaneda’s
appellate brief, on pages 33 and 34, is the only place in the brief where
Castaneda discusses the present legal malpractice action which is before this
court. He questions why the trial court
ordered him to amend his complaint when “Mr. Conway was already in
Default.” Castaneda does not explain why
he believes that Conway was in default in this action and there is no support
in the record for this claim. Conway
answered the first amended complaint.
Therefore, Castaneda was not entitled to a default judgment under Code
of Civil Procedure section 585.
DISPOSITION
The
judgment is affirmed. Respondents are
entitled to recover their costs on appeal.
NOT TO BE PUBLISHED.
CHANEY,
J.
We concur:
MALLANO,
P. J. JOHNSON,
J.
below and on appeal that its true name is “Law Offices of Jack K. Conway.”
section 438, subdivision (h)(2), provides that the trial “court shall grant 30
days to the party against whom the motion [for judgment on the pleadings] was
granted to file an amended complaint.”
Castaneda has not raised this issue on appeal and therefore has waived
any claim of error. (
139 Cal.App.4th 659, 685 [issue not raised in opening appellate brief is deemed
waived].) In any event, the record does
not demonstrate that Castaneda was prejudiced by the order granting him 10 days
to amend. Castaneda did not ask the
trial court for additional time. As set
forth below, the court did not enter judgment against him until 96 days after
it granted the motion for judgment on the pleadings. Castaneda never indicated during this time
that he intended to file an amended complaint.
