Elias v. City of Los Angeles

Filed 7/18/08 Elias v. City of Los Angeles CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from judgments and an order of the Superior Court of Orange County, Steven L. Perk, Judge. Appeal dismissed as to defendants North Orange County Community College District, Elmer J. Pellegrino, Jerry Stokes, Annette Olivas, Allen Fenner, Kathleen OConnell Hodge, Matthew Jones, Patricia A. Lynch and Declues, Burkett & Thompson LLP. Judgment affirmed as to defendants the City of Los Angeles, Christopher Lambrecht, and Scott McKenzie.

David Elias, in pro. per., for Plaintiff and Appellant.

Declues, Burkett & Thompson and Patricia A. Lynch for Defendants and Respondents North Orange County Community College District, Elmer J. Pellegrino, Jerry Stokes, Annette Olivas, Allen Fenner, Kathleen OConnell Hodge, Scott McKenzie, Matthew Jones, Christopher Lambrecht, Declues, Burkett & Thompson LLP and Patricia A. Lynch.

Rockard J. Delgadillo, City Attorney, and Janet G. Bogigian, Assistant City Attorney for Defendant and Respondent City of Los Angeles.

* * *

Plaintiff David Elias appeals from judgments entered in favor of defendants North Orange County Community College District, Elmer J. Pellegrino, Jerry Stokes, Annette Olivas, Allen Fenner, Kathleen OConnell Hodge, Matthew Jones, Chris Lambrecht, Scott McKenzie, Peace Officers Standards and Training Commission (POST), and the City of Los Angeles, and an order entered in favor of Declues, Burkett & Thompson LLP and Patricia A. Lynch.[1] In plaintiffs own words, the gist of [his] action is that a college teacher . . . in [an] occupational program [at the Fullerton College Police Academy] expelled plaintiff for writing under protest on a libel presented to him to sign . . . . We dismiss the appeal as untimely as to defendants North Orange County Community College District, Pellegrino, Stokes, Olivas, Fenner, Hodge, Jones, POST, Lynch, and Declues, Burkett & Thompson LLP. As to defendants the City of Los Angeles, Lambrecht, and McKenzie, the judgments are affirmed.[2]

FACTS

The Original Complaint

On December 20, 2006, plaintiff filed a complaint for libel and other causes of action against defendants Pellegrino, Stokes, Olivas, Fenner, Jones, Lambrecht, Hodge, North Orange County Community College District, Fullerton College, POST, and the Los Angeles Police Department. On May 15, 2007,[3] plaintiff filed a Doe amendment to the complaint adding defendants Lynch and McKenzie.

On June 1, the court sustained the demurrer of the City of Los Angeles with 28 days leave to amend. (Although the City was not a named defendant, the city demurred to the complaint because Los Angeles Police Department was a nonsuable entity and therefore a suit against the police department was tantamount to a suit against the city.)

On June 15, the court sustained, without leave to amend, the demurrers of (1) POST; (2) Jones; and (3) North Orange County Community College District, Pellegrino, Stokes, Olivas, Fenner, and Hodge.

On July 10, the court entered judgment in POSTs favor on the original complaint.

On July 25, the court entered judgment on the original complaint in favor of defendants North Orange County Community College District, Pellegrino, Stokes, Olivas, Fenner, Hodge and Jones. On July 27, these defendants filed and served written notice of entry of judgment.

On August 13, POST filed and served written notice of entry of judgment.

The First Amended Complaint

On June 29, plaintiff filed a first amended complaint for damages and a permanent injunction against defendants Pellegrino, Stokes, Olivas, Fenner, Jones, Lambrecht, Hodge, North Orange County Community College District, Fullerton College, POST, City of Los Angeles, McKenzie, Lynch, and Declues, Burkett & Thompson, LLP.[4]

On July 12, Lynch and Declues, Burkett & Thompson, LLP demurred to the first amended complaint on the ground, inter alia, all causes of action against them as defense counsel were barred by Civil Code section 1714.10. Also on July 12, plaintiff moved for leave to add attorneys Lynch and Declues, Burkett & Thompson, LLP as defendants in the lawsuit. On July 27, the court denied plaintiffs motion. On July 30, Lynch and Declues, Burkett & Thompson, LLP filed and served written notice of entry of ruling.

On August 17, the court sustained, without leave to amend, the demurrers of the City of Los Angeles, McKenzie, and Lambrecht to the first amended complaint. On September 6, the court dismissed the first amended complaint with prejudice as to McKenzie and Lambrecht and entered judgment in their favor. Also on September 6, the court dismissed the first amended complaint with prejudice as to the City of Los Angeles and entered judgment in its favor. On September 21, McKenzie and Lambrecht filed and served written notice of entry of judgment.

Plaintiffs Notice of Appeal

Plaintiff filed a notice of appeal on October 15.

DISCUSSION

Plaintiffs appeal is untimely as to North Orange County Community College District, Pellegrino, Stokes, Olivas, Fenner, Hodge, Jones, POST, Patricia A. Lynch, and Declues, Burkett & Thompson LLP.

Unless an exception applies, a notice of appeal is untimely if filed more than 60 days after the party filing the notice of appeal is served with a notice of entry of judgment. (Cal. Rules of Court, rule 8.104(a).) As discussed above, defendants North Orange County Community College District, Pellegrino, Stokes, Olivas, Fenner, Hodge and Jones served written notice of entry of judgment on July 27. Plaintiff had until September 25 to file a notice of appeal as to these defendants. Defendants Lynch and Declues, Burkett & Thompson, LLP served written notice of entry of ruling on July 30. Plaintiff had until September 28 to file a notice of appeal as to Lynch and Declues, Burkett & Thompson, LLP. Defendant POST served written notice of entry of judgment on August 13. Plaintiff had until October 12 to file a notice of appeal as to POST. Because plaintiff did not file a notice of appeal until October 15, the appeal is untimely as to the foregoing defendants and we are required to dismiss it with respect to them. (Cal. Rules of Court, rule 8.104(b) [If a notice of appeal is filed late, the reviewing court must dismiss the appeal]; see also Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985 [mere self-representation is not a ground for exceptionally lenient treatment. Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation]; Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1056 [propia persona status does not exempt litigant from rules of procedure].)[5]

Plaintiffs complaint against McKenzie was untimely under Government Code sections 945.6 and 950.6.

In his first amended complaint, plaintiff alleged he was advised that McKenzie was the dean in charge of the academy and technology department. McKenzie, identifying himself as a public entity employee, demurred to the first amended complaint, inter alia, because it was untimely under Government Code sections 945.6 and 950.6, and plaintiff had improperly added McKenzie as a Doe defendant. The court sustained, without leave to amend, McKenzies demurrer on the alternative ground plaintiff failed to comply with the provisions of Government Code sections 945.6 and 950.6 [when] he failed to bring this action against McKenzie, a public entity employee, within six months from the rejection of his tort claim.

Under Government Code section 950.6, subdivision (b), a suit against a public employee must be commenced within the time prescribed by Section 945.6 for bringing an action against the employees employing public entity. Under Government Code section 945.6, subdivision (a)(1), such a suit must be commenced not later than six months after written denial of the claim is personally delivered or mailed to the claimant.

North Orange County Community College District mailed a notice of rejection of claim to plaintiff on June 20, 2006.[6] Almost 11 months later, on May 15, 2007, plaintiff amended his original complaint to add McKenzie as a defendant.[7] Because plaintiff failed to sue McKenzie within six months of the districts notice of rejection, the court properly sustained, without leave to amend, McKenzies demurrer to the first amended complaint.

The court did not err by sustaining, without leave to amend, the City of Los Angeless demurrer.

On appeal plaintiff asks this court to [i]ssue mandate reinstating all causes of action and including . . . City of Los Angeles . . . in [the] suit. He contends the court erred by dismissing the city as a defendant since he could have . . . substituted [the city] for Los Angeles Police Department under Code of Civil Procedure section 475. But the court expressly allowed plaintiff to amend his original complaint to substitute the City of Los Angeles as a defendant in place of the Los Angeles Police Department. And plaintiffs first amended complaint named the City of Los Angeles as a defendant from the outset. Thus, this is a nonissue.

In his opening brief, plaintiff raises no other contentions expressly targeted at the City of Los Angeles.[8] But, without specification, he contends the court erred in sustaining demurrers of defendants (presumably any and all defendants to the action).

The court sustained the City of Los Angeless demurrer to plaintiffs first amended complaint, inter alia, on the following grounds: Plaintiffs state law claims were untimely because he filed his complaint over six months after the city denied his claims, in contravention of Government Code section 945.6, subdivision (a)(1).[9] As to plaintiffs Fair Employment and Housing Act claim, the court ruled no cause of action existed because plaintiff was a student[,] not an Employee of the City. As to plaintiffs federal civil rights claims under section 1981 of title 42 of the United States Code, the court ruled the city was not involved in this case and plaintiff could not allege such with any factual specificity required by the cause of action. As to plaintiffs age discrimination claims, the court ruled Title VI and Title VII do not apply to age discrimination. Finally, as to plaintiffs request for injunctive relief, the court stated the cause of action was only asserted in the caption and injunctive relief is only available when there is a real or immediate threat the Plaintiff will be wronged again.

Plaintiffs opening brief (as well as his reply brief) provide no legal argument or citation of authorities as to why the courts grounds for sustaining the citys demurrer, without leave to amend, were erroneous. We therefore treat this issue as waived. (McComber v. Wells (1999) 72 Cal.App.4th 512, 522.)

The court did not err by awarding Lambrecht costs and sustaining, without leave to amend, his demurrer to the first amended complaint.

Plaintiff contends the court erred in allowing costs against Plaintiff for student[] . . . Lambrecht which violate the anti SLAPP and the US first amendment right to seek redress because . . . Lambercth [sic] [was defendants] agent[]. He argues it is against the law to tax plaintiff costs, and is in cloaked Retaliation against plaintiff, because . . . Lambrecht interfered with his use and enjoyment of the government facility, and service.

Plaintiffs opening brief (as well as his reply brief) provide no legal argument or citation of authorities as to why the courts award of costs was erroneous. We therefore treat this issue as waived. (McComber v. Wells, supra, 72 Cal.App.4th at p. 522.)

Although plaintiff, in his opening brief, raises no other contentions expressly targeted atLambrecht, he does contend the court erred in sustaining demurrers of defendants (presumably any and all defendants) to his various causes of action. The court sustained Lambrechts demurrer solely on the ground of res judicata, based on the limited jurisdiction case plaintiff filed in February 2006, which was, according to the respondents brief, the subject of a pending appeal at least as late as February 2008. Because a judgment subject to appeal is generally not final for purposes of res judicata (7 Witkin, Cal. Procedure (4th ed. 1997) Judgment,  307, p. 857), the lawsuit before us was not precluded under that doctrine. Nonetheless, we do not review the reasons for the courts order, but only whether it is correct on any theory. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 1997) 8:214, p.8-132.1.)

In his first amended complaint, plaintiff identified Lambrecht as a fellow student. Plaintiff alleged that a training officer named Fenner made the class run a quarter [mile] lap around the trac[k] for each alleged mistake[] by [plaintiff]. Plaintiff then made the following specific allegations against Lambrecht: As a probable result of the added lap or laps . . . , [p]laintiff experienced animosity by Chris Lambrecht. Chris Lambrecht would turn his head, cover his mouth, and make snide remarks to the class after plaintiff asked instructors questions on the subject matter in the class room. Chris Lambrecht told plaintiff on one Saturday before the hard Physical exercise session was to begin he had better not screw up or else he would commit a 240 on him.

Lambrecht demurred to plaintiffs first amended complaint, inter alia, on the basis plaintiff failed to state facts sufficient to constitute a cause of action against Lambrecht as to all of plaintiffs claims against Lambrecht.[10] Lambrecht argued the first amended complaint alleged no actionable conduct on his part. He argued plaintiff failed to specify how the facts pleaded . . . constitute the elements required in each cause of action and failed to separately plead the elements of each of these causes of action in the body of the complaint. Lambrecht asserted that several of [plaintiffs] causes of action do not even constitute a separate cause, while [o]thers are patently inappropriate on their face.

Plaintiffs opening brief (as well as his reply brief) provide no legal argument or citation of authorities as to why the court erred by sustaining Lambrechts demurrer without leave to amend. We therefore treat this issue as waived. (McComber v. Wells, supra, 72 Cal.App.4th at p. 522.)

DISPOSITION

The appeal as to defendants North Orange County Community College District, Pellegrino, Stokes, Olivas, Fenner, Hodge, Jones, POST, Lynch, and Declues, Burkett & Thompson, LLP is dismissed. The judgments as to defendants Lambrecht, McKenzie, and the City of Los Angeles are affirmed.

IKOLA, J.

WE CONCUR:

SILLS, P. J.

ARONSON, J.

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[1] The order appealable under Civil Code section 1714.10, subdivision (d)  is the courts July 27, 2007 denial of plaintiffs motion for leave to add defense counsel Lynch and Declues, Burkett & Thompson, LLP as defendants in the lawsuit pursuant to Civil Code section 1714.10. Civil Code section 1714.10, subdivision (a) provides: No cause of action against an attorney for a civil conspiracy with his or her client arising from any attempt to contest or compromise a claim or dispute, and which is based upon the attorneys representation of the client, shall be included in a complaint or other pleading unless the court enters an order allowing the pleading that includes the claim for civil conspiracy to be filed after the court determines that the party seeking to file the pleading has established that there is a reasonable probability that the party will prevail in the action.

Although plaintiff purported to sue Fullerton College, no judgment was entered as to it. According to respondent North Orange County Community College District, the district was sued under its proper name and [also] named erroneously as Fullerton College.

[2] Shortly before oral argument, plaintiff filed two separate requests for judicial notice. On May 19, 2008, defendant requested we take judicial notice of related Unruh Act limited appeal AP15044 set for 06-28-08. On May 23, 2008, defendant requested we take judicial notice of new landmark federal and CA Supreme Court Cases. Both requests are denied. The May 19 request provides materials relating to an appeal plaintiff has apparently taken from a judgment in a limited jurisdiction case, and which appeal was apparently pending in the appellate division of the superior court at the time argument was heard in this appeal from judgments entered in the unlimited jurisdiction case in the superior court. Because our decision in this matter is not affected by proceedings in the limited jurisdiction appeal pending in the appellate division of the superior court, we find it unnecessary to consider the submitted materials. Moreover, their submission only days before oral argument did not allow adequate time for the defendants to respond. The May 23 request amounts to an unauthorized supplemental brief in the guise of a request for judicial notice. Again, because of the late submission, respondents were not provided an adequate opportunity to respond.

[3] All subsequent dates refer to the year 2007 unless otherwise stated.

[4] North Orange County Community College District, Pellegrino, Stokes, Olivas, Fenner, Hodge, Jones, and POST whose demurrers to the original complaint had already been sustained without leave to amend by the court made no motions or other court filings concerning plaintiffs first amended complaint.

[5] In November plaintiff moved to amend his notice of appeal to correct a typographical error in which he referred to September 16 judgments instead of September 6 judgments (the date of judgments in favor of Lambrecht, McKenzie, and the City of Los Angeles). In our February 6, 2008 order, we concluded an amendment was unnecessary since plaintiff submitted copies of the September 6 judgments with the civil case information statement and the motion to amend; we therefore construed the notice of appeal as identifying the September 6 judgments as the ones from which plaintiff appealed.

[6] The court took judicial notice of the June 20, 2006 rejection of claim and that McKenzie was a public employee.

[7] In his demurrer, McKenzie argued plaintiffs purported addition of McKenzie as a Doe defendant to the original complaint was improper under Code of Civil Procedure section 474 because plaintiff on December 20, 2006 when he filed his original complaint was aware of the existence of McKenzie and his role in the dismissal of plaintiff from the Fullerton Police Academy. As evidence of the foregoing, McKenzie asked the court to take judicial notice of a first amended complaint plaintiff filed on June 30, 2006 in a limited jurisdiction case (no. 06NL01594) involving the same set of facts, where plaintiff alleged McKenzie agreed to a hearing, but recanted after hiring counsel. The court took judicial notice of the court file of the limited jurisdiction case.

[8] In his reply brief, plaintiff suggests defendants Olivas and Stokes were Los Angeles police officers. A contention made for the first time in an appellants reply brief, unaccompanied by any reason for omission from the opening brief, may be disregarded. . . . (Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830.) In fairness to the City of Los Angeles, we disregard plaintiffs suggestion.

[9] The citys notice of denial of claim was dated April 6, 2006. The court granted the citys request for judicial notice of its Letter and Proof of Service of denial of Plaintiffs claim.

[10] Plaintiff attempted to allege causes of action against all defendants for violation of Civil Code sections 51.7 and 52.1 (Bane and Ralph Acts), false light, antitrust, violation of the False Claims Act (Bus. & Prof. Code, 17200, 17204, & 17500), Qui Tam (Gov. Code, 12650-12656; Civ. Code 12650), oppression (Civ. Code, 3294), violation of title 42 of the United States Code, sections 1981-1988, breach of contract/quantum meruit, misrepresentation/false pretenses, intentional infliction of emotional distress, age discrimination (title VI and VII), violation of the Fair Employment and Housing Act (Gov. Code, 12940 & 12941), attorney fees (Code Civ. Proc., 1021 & 1021.5), violation of special relationship/negligence, violation of Whistle Blower Act (Gov. Code, 8547.10), failure to provide police protection, and public/private nuisance (Civ. Code,  3495). Plaintiff alleged additional causes of action directed against other defendants not including Lambrecht.