Filed 10/6/26 Fryer v. Farroq CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
LEROY JAMES FRYER,
Plaintiff and Appellant, E085745
v. (Super.Ct.No. CIVSB2220171)
MOHAMMED FARROQ et al., OPINION
Defendants and Respondents.
APPEAL from the Superior Court of San Bernardino County. Kory E.
Mathewson, Judge. Affirmed.
Leroy James Fryer, in pro per, for Plaintiff and Appellant.
Rob Bonta, Attorney General, R. Lawrence Bragg, Acting Senior Assistant
Attorney General, Neah Huynh, Jaime M. Ganson, and Martha Ehlenbach, Deputy
Attorneys General, for Defendants and Respondents.
1
Plaintiff appeals a trial court order dismissing his civil action with prejudice,
following an order sustaining demurrer with leave to amend and the expiration of the
amendment period with no amendment having been filed. Plaintiff contends the trial
court should not have ruled on the demurrer because it was untimely and because
Plaintiff requested to have defaults entered against defendants prior to the filing of
defendants’ demurrer. Because plaintiff failed to carry his burden of demonstrating an
abuse of discretion, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, in pro per, filed his amended complaint against Mohammed Farroq and
Howard Chen (defendants) in January 2023. Six months later, plaintiff filed a proof of
service indicating that defendant Farroq was personally served with the amended
complaint in July 2023. Plaintiff contends Chen was also served in July 2023.1
On January 12, 2024, defendants filed and served a demurrer to plaintiff’s
amended complaint.2 Defendants generally demurred on government immunity grounds
(Gov. Code, §§ 820.2, 845.6) and specially demurred on the ground that the amended
1 The appellate record is remarkably sparse, and it includes no file-stamped proof
of service establishing proper service on Chen. However, the question to be decided in
this appeal is whether the trial court abused its discretion in dismissing plaintiff’s
amended complaint after his election not to amend in response to a sustained demurrer.
The answer to that question does not turn on the issues on which plaintiff focuses—when
and how Chen was served, the timing of service on defendants, and plaintiff’s
unsuccessful attempts to have default entered against them.
2 Defendants attempted to file an answer prior to demurring, but the answer was
rejected by the trial court because it was captioned as an answer to complaint, rather than
an answer to amended complaint.
2
complaint was uncertain (Code Civ. Proc., § 430.10, subd. (f).)
Although the minute order is not included in the appellate record, the trial court
sustained defendants’ demurrer to plaintiff’s amended complaint with 60 days leave to
amend on July 3, 2024.
On February 18, 2025, the trial court granted a motion to dismiss filed by
defendants. In its written order, the court explained that it had previously sustained
defendants’ demurer to plaintiff’s amended complaint with leave to amend, and had set a
60-day amendment deadline of November 18, 2024; because plaintiff never filed a
second amended complaint and because he did not file an opposition to the motion to
dismiss, the trial court granted the motion to dismiss and ordered the case dismissed with
prejudice.
Plaintiff filed this timely appeal of the trial court’s order granting the motion to
dismiss. Prior to filing his opening brief, plaintiff filed a motion to correct or augment
the record, which defendants opposed and this Court denied. Plaintiff has since filed two
separate requests for judicial notice, both which we now deny.3
3 Plaintiff requests judicial notice of a copy of a prison mail log and copies of two
proofs of service plaintiff contends establish that “both defendants were . . . served with
summons and complaint in July 2023.” There is no indication in the record that plaintiff
presented these documents to the trial court in connection with defendants’ demurrer or
subsequent motion to dismiss. Moreover, because the two proofs of service are dated
June 2, 2025, they could not have possibly been presented to the trial court prior to the
February 18, 2025 dismissal. Absent exceptional circumstances, “reviewing courts do
not take judicial notice of facts not presented to the trial court.” (Weiss v. City of Del Mar
(2019) 39 Cal.App.5th 609, 625.) Additionally, plaintiff has not demonstrated that the
subject documents are material to the disposition of this appeal. Appellate courts will not
take judicial notice of matters irrelevant to the dispositive point on appeal. (See Doe v.
[footnote continued on next page]
3
DISCUSSION
A fundamental rule of appellate review is that an appealed judgment or order “is
ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the
basis of the record presented to the appellate court, that the trial court committed an error
that justifies reversal of the judgment.” (Jameson v. Desta (2018) 5 Cal.5th 594, 609.)
Where a demurrer is sustained with leave to amend and plaintiff elects not to amend,
plaintiff may challenge the order sustaining the demurrer by appealing from the ensuing
judgment of dismissal. (Shaw v. Los Angeles Unified School Dist. (2023) 95 Cal.App.5th
740, 753.) Although our review of a demurrer in that scenario is de novo, “it is limited to
issues which have been adequately raised and supported in [the appellant’s] brief.”
(Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.) “ ‘Appellate briefs must provide
argument and legal authority for the positions taken. “When an appellant fails to raise a
point, or asserts it but fails to support it with reasoned argument and citations to authority,
we treat the point as waived.” ’ ” (Cahill v. San Diego Gas & Electric Co. (2010) 194
Cal.App.4th 939, 956.) “We treat a party who represents himself on appeal as we would
any other party or attorney.” (Denny v. Arntz (2020) 55 Cal.App.5th 914, 920.)
Plaintiff does not contend that the trial court erred in sustaining defendants’
demurrer to his amended complaint because he pleaded facts sufficient to state a cause of
action. Because his appellate brief is completely silent as to whether his amended
City of Los Angeles (2007) 42 Cal.4th 531, 544, fn. 4; Ross v. Seyfarth Shaw LLP (2023)
96 Cal.App.5th 722, 745 [“It is not sufficient that the evidence be relevant to an argument
made by its proponent. The evidence must be relevant to the disposition of the matter”].)
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complaint alleges facts sufficient to state a cause of action, we need not address that
issue. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [issues not raised
in appellant’s opening brief are forfeited].)
Plaintiff’s primary contention is that the trial court “should not have entertained
[the demurrer] in the first instance” because it was untimely. Plaintiff argues defendants
were required to file a responsive pleading by August 24, 2023 and, because defendants
filed their demurrer over four months later, it “should be ruled as void or invalid.”
Relatedly, plaintiff argues the trial court abused its discretion by rejecting his attempt to
file a request for entry of default in November 2023.4
Trial courts have discretion to consider untimely demurrers. (Jackson v. Doe
(2011) 192 Cal.App.4th 742, 750.) An abuse of discretion occurs only if “ ‘the trial
court’s decision exceeds the bounds of reason and results in a miscarriage of justice.’ ”
(Orange Catholic Foundation v. Arvizu (2018) 28 Cal.App.5th 283, 292.) It is not clear
from the record whether Chen was properly served with the amended complaint. But
even if defendants’ demurrer was filed roughly four months late, plaintiff cites no
authority, and none is apparent, supporting his argument that the trial court abused its
discretion by ruling on the untimely demurrer. Because default had not been entered
4 Notwithstanding plaintiff’s argument that both defendants were served with the
amended complaint in July 2023, plaintiff’s position is unclear as to whether default
could have been entered against Chen without a filed proof of service. On page 6 of his
brief, plaintiff acknowledges that the July 2023 proof of service was “filed for defendant
M. Farroq, but not for H. Chen.” On page 14, he argues he submitted a request for entry
of default “against both defendants” on November 30, 2023. He argues the trial court
“had full jurisdiction to render [default] judgment against M. Farroq, and leave the action
to proceed against H. Chen.”
5
against defendants, they were still permitted to file pleadings or motions. (Goddard v.
Pollock (1974) 37 Cal.App.3d 137, 141.)
There is no indication that plaintiff opposed defendants’ demurrer or their
subsequent motion to dismiss on grounds involving timeliness or entry of default. In fact,
there is no indication in the record that plaintiff opposed either motion at all.5 Plaintiff
argues he challenged the timeliness of the demurrer by “submitting” a request for entry of
defendants’ defaults a couple of months prior to the demurrer filing, and that defendants
filed an opposition to entry of default. However, neither of those trial court filings are
included in the appellate record. Even if they had been included, it is unclear how they
might alter the analysis given that default was never entered prior to the demurrer filing.
Under Code of Civil Procedure section 581, subdivision (f)(2), the trial court may
dismiss a complaint if “after a demurrer to the complaint is sustained with leave to
amend, the plaintiff fails to amend it within the time allowed by the court and either party
moves for dismissal.” Here, the trial court sustained defendants’ demurrer to the
amended complaint with 60 days leave to amend, but plaintiff did not file a second
amended complaint within that timeframe. The trial court thus properly exercised its
discretion by granting defendants’ motion to dismiss plaintiff’s complaint. (Leader v.
Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613-614.)
5 “Attachment B” to plaintiff’s opening brief is a document dated October 2024
captioned “Plaintiff’s Response to Tentative Demurrer Ruling.” That document is not
file-stamped, and there is no indication it was ever filed in the trial court proceeding. It is
not part of the appellate record, so attaching it to the opening brief was improper. (Cal.
Rules of Court, rule 8.204(d).)
6
The appellate record does not support plaintiff’s contention that the trial court
abused its discretion by ruling on a late-filed demurrer or that it abused its discretion by
failing to enter default against defendants prior to the filing of that demurrer. Thus,
plaintiff failed to carry his burden of demonstrating that the trial court committed an error
justifying reversal of the dismissal order.6
6 Plaintiff contends this court should defer its ruling based on his pending efforts
to have the trial court vacate its “rejection of” his November 2023 request for entry of
default as “void.” He argues the trial court scheduled an October 2025 hearing to address
his ongoing contentions regarding service of the amended complaint on defendants and
his contention that “the court abused its discretion by rejecting entry of default on both
defendants.” As discussed, plaintiff’s contentions regarding service of the amended
complaint are not material to the dispositive issue on appeal, which is whether the trial
court abused its discretion by ruling on an untimely demurrer; and because plaintiff’s
appeal involves his contentions regarding the trial court’s purported rejection of his
efforts to have default entered, “ ‘the trial court is divested of’ subject matter jurisdiction
over” that matter as it is “embraced in or affected by the appeal.” (Varian Medical
Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 196-197; Code Civ. Proc., § 916, subd.
(a).)
7
DISPOSITION
The trial court’s order dismissing plaintiff’s amended complaint is affirmed.
Defendants may recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) &
(2).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
LEE
J.
We concur:
CODRINGTON
Acting P. J.
FIELDS
J.
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