Coverson v. San Francisco Unified School Dist.

Filed 12/9/08 Coverson v. San Francisco Unified School Dist. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Appellant Frank Coverson brought suit against respondent San Francisco Unified School District (school district) alleging negligence and wrongful termination. On November 1, 2007,^[1]the trial court sustained the school districts demurrer without leave to amend.^[2] The court entered judgment against Coverson on December 18, and he appealed from that judgment on February 1, 2008. On appeal, Coverson challenges the timeliness of the demurrer. We affirm the judgment.

I. FACTS

The school district hired Coverson as a security aide-school patrol officer. He was to monitor the school grounds, implement security procedures, and maintain order among students. During Coversons tenure with the school district, he was involved in several altercations with students. In one incident, when he tried to diffuse an argument between two students, he was hit in the head with a basketball, causing injury to his neck and face. In June 1998, the school district terminated Coverson citing his excessive sick days, his tardiness, and his failure to perform his duties.

Coverson filed a personal injury suit on February 15, against United Educators of San Francisco (United Educators) alleging breach of contract, unfair business practice and wrongful termination. It appears he based his suit on both the harm caused by the injury and his termination. United Educators filed a demurrer which the trial court sustained with leave to amend. Coverson filed his first amended complaint on August 31, adding the school district as a defendant. The record on appeal does not include any proof of service of his amended complaint on the school district. Coverson asserts that the school district left a telephone message for him on September 28, requesting permission to file its demurrer after October 31. Coverson never returned the call, but filed a case management statement on October 2, refusing their request. The school district demurred to the amended complaint on October 3. Coverson opposed the demurrer, arguing inter alia that the demurrer was untimely filed because he refused to give the school district permission for a late filing. After hearing, the trial court sustained the demurrer without leave to amend, finding that the action was barred by the statute of limitations and that Coverson had failed to exhaust his administrative remedies.

II. TIMELINESS

Coverson contends that the trial court had no jurisdiction to consider the school districts demurrer because he did not agree to an extension of time for filing the demurrer. A defendant must answer an amended complaint within 30 days of service, or within such other time as the court may direct . . . . (Code Civ. Proc.,^[3] 471.5.) If a defendant fails to answer or demur to an amended complaint within 30 days after service, or within the time posed by the court, judgment shall be rendered as if the defendant had not answered. ( 586, subd. (a)(1).) The 30-day time period to demur to an amended complaint is extended by five days if the amended complaint was served by regular mail. ( 1013, subd. (a).)

It is unclear what method of service Coverson used to serve the amended complaint on the school district. He did not file a proof of service of the first amended complaint and none was attached to the amended complaint itself. He used service by mail to serve other documents on the school district in this action, suggesting that this manner of service was used with the amended complaint. It is the appellants burden to provide an adequate record on appeal. (Hernandez v. CaliforniaHospitalMedicalCenter (2000) 78 Cal.App.4th 498, 502.) A trial courts judgment is presumed correct and Coverson had the burden to affirmatively show the trial court erred. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) We assume arguendo that the complaint was served by mail, entitling the school district to a five-day extension of time to file the demurrer. ( 1013, subd. (a).) Appellant filed his amended complaint on August 31. The 35-day period to demur to this complaint ran until October 5. Thus, it appears that the demurrer filed on October 3, was timely.

Even if the demurrer was untimely, the trial court had jurisdiction to consider it. Coversons stipulation to an extension of time to file a demurrer was not required. (See McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 281-282.) Section 473, subdivision (a)(1) allows the court to increase the time for filing a demurrer in furtherance of justice and on any terms that may be proper. As long as extending that time does not affect the substantial rights of the parties, the court has discretion to entertain an untimely demurrer. ( 475; McAllister v. County of Monterey, supra, 147 Cal.App.4th at p. 282.) By its rejection of Coversons untimeliness claim, the trial court apparently exercised this discretion and impliedly found that any late filing of the demurrer did not prejudice him. The trial courts consideration of a demurrer will not affect an appellants substantial rights if the appellant has not taken steps to achieve judgment by default or demonstrated that delay otherwise prejudiced his or her case. (Id. at p. 282.) In our case, we are satisfied that the trial courts consideration of the demurrer, even if untimely, did not affect Coversons substantial rights.

III.RULING ON DEMURRER

To the extent that Coversons appeal challenges the merits of the trial courts ruling, we find that his amended complaint fails to state a cause of action because the statute of limitations governing his claim had lapsed before he filed his initial complaint. When considering an appeal from a judgment or order of dismissal following a trial courts decision to sustain a demurrer, we first determine de novo whether the complaint states a cause of action. (Curcini v. County of Alameda (2008) 164 Cal.App.4th 629, 637.) If the trial court sustained the demurrer without leave to amend, we also consider whether the plaintiff could amend the complaint so it would contain a cause of action. (Ibid.)

Coverson filed this action in February 2007 to challenge an injury and termination sustained in 1998. All statutes of limitations that might apply to this action bar this nine-year-old claim. (See 337, 339, 343.) A trial court may sustain a demurrer without leave to amend when the complaint shows on its face, as it does here, that it is barred by the statute of limitations. (See Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1204.) Thus, the trial court properly sustained the demurrer without leave to amend.

The judgment is affirmed.

_________________________

Reardon, J.

We concur:

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Ruvolo, P.J.

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Sepulveda, J.

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^[1]All dates refer to the 2007 calendar year unless otherwise indicated.

^[2]In June 2008, we granted the school districts motion to augment the record on appeal without a determination of relevance. (See Cal. Rules of Court, rule 8.155(a)(1).) We now find these records to be relevant.

^[3]All statutory references are to the Code of Civil Procedure.