Liggins v. Tabalon
Filed 10/1/08 Liggins v. Tabalon CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
CLAUDE ALBERT LIGGINS, Plaintiff and Appellant, v. LERRY TABALON et al., Defendants and Respondents. | B203095 (Los Angeles County Super. Ct. No. BC358258) |
APPEAL from judgments of the Superior Court of Los Angeles County. Ann I. Jones, Judge. Dismissed in part; affirmed in part.
Claude Albert Liggins in propria persona for Plaintiff and Appellant.
Law Offices of Gerald K. Kitano, Gerald K. Kitano and Michael M. Hirotsu for Defendants and Respondents.
__________________________
The proprietor of a small business sued a commercial printer, several of its employees, its attorneys, and a subcontractor, attempting to recoup the $63,000 discount he was forced to accept under a contract for his services. In a series of orders, the trial court sustained demurrers without leave to amend to most of the causes of action alleged in the plaintiffs complaints and ultimately dismissed all but one defendant from the action. The plaintiff dismissed his action against the sole remaining defendant and a week later filed a notice of appeal challenging the earlier dismissals. We conclude the appeal from the first judgment of dismissal was untimely and thus this court lacks jurisdiction to entertain this appeal. We affirm a second judgment of dismissal.
BACKGROUND
The following factual background is based on the allegations of the complaints and on the exhibits attached to the complaints.
Respondent Koyo Graphic International, Inc. (Koyo Graphic) is a commercial printer. Appellant, Claude Albert Liggins, doing business as Classic Company, is in the printing finishing business. In March 2002 Liggins entered into a contract with Koyo Graphic to produce 100,000 book covers for Bandai Entertainment, Inc. for $385,000. The contract stated the required completion date was May 31, 2002.
Liggins encountered a variety of problems during the manufacturing process. By the May 31, 2002 delivery date, Liggins had delivered 75,000 of the 100,000 book covers called for in the contract. Liggins delivered the balance of the order by July 16, 2002.
The next day respondent Masayuki Takada, president of Koyo Graphic, called Liggins and demanded a discount on the outstanding balance of the amount still owed under the contract. Liggins refused to accept a discount. A few days later Koyo Graphics counsel wrote letters to Liggins to explain Koyo Graphic expected a discount of approximately $63,000 from the contract price to reimburse it for the over $17,000 it spent in replacing lost printed material and to compensate it for the late delivery. The parties had several discussions over the next few months. Finally, in September 2002, and in extreme economic distress, Liggins entered into a settlement agreement with Koyo Graphic in which Liggins agreed to the $63,000 discount in exchange for immediate payment of $221,383, the discounted balance due under the contract.
In October 2006 Liggins filed a first amended complaint against respondents Koyo Graphic, its president, Tanaka, its financial officer, Lerry Tabalon, its shipping manager, Jim Morack, its counsel William D. Johnson, and Johnson & Associates, and a subcontractor, Custom Displays, Inc. Ligginss complaint alleged causes of action for breach of contract, economic duress, breach of the covenant of good faith and fair dealing, fraud, conspiracy, negligence, intentional infliction of emotional distress and other claims.
On February 26, 2007, and with the exception of the breach of the settlement agreement cause of action against Koyo Graphic, the trial court sustained without leave to amend demurrers filed by Koyo Graphic, Tabalon, Morack, Takada, Bandai Entertainment, Inc., Johnson, and Johnson & Associates to all causes of action alleged in Ligginss first amended complaint. Among other grounds, the court found these claims barred by the statute of limitations, or found these defendants were not parties to the contracts alleged in the complaints. On March 19, 2007 the court signed a judgment dismissing Tabalon, Morack, Takada, Johnson, Johnson & Associates and Bandai Entertainment, Inc. from the action. These respondents served and filed a notice of entry of judgment a week later.
Earlier, in January 2007, the trial court had granted Liggins leave to amend his complaint against his subcontractor, respondent Custom Displays, Inc. Liggins failed to timely file a second amended complaint and on April 11, 2007 the trial court granted Custom Displays, Inc.s motion to dismiss. On May 2, 2007 the court entered a signed judgment dismissing Custom Displays, Inc. from the action.
Ligginss case continued against Koyo Graphic as the sole remaining defendant with his sole remaining cause of action against it for breach/rescission of the settlement agreement. On September 20, 2007 Liggins filed a request for dismissal of his action against Koyo Graphic without prejudice. On September 27, 2007 Liggins filed a notice of appeal. His notice of appeal states he is appealing from the courts orders of dismissal entered February 26, 2007, April 11, 2007 and August 7, 2007.
DISCUSSION
February 26, 2007 Dismissal Order
In multi-party actions, such as this, a judgment or order that leaves no issue remaining to be determined as to one of the parties is considered final as to that party and is appealable. (Justus v. Atchison (1977) 19 Cal.3d 564, 567-568 [an exception to the one final judgment rule occurs in multi-party actions where a judgment is entered which leaves no issue to be determined as to one party]; Wilson v. Sharp (1954) 42 Cal.2d 675, 677 [The order granting the motion to strike operated to remove from the case the only cause of action alleged against the county counsel and to leave no issues to be determined between him and plaintiff, and it was appealable as a final judgment within the meaning of section 963 [now 904.1] of the Code of Civil Procedure].)
Under the general rule, an appeal must be filed on or before the earliest of the following dates:
(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. (Cal. Rules of Court, rule 8.104(a).)
Ligginss notice of appeal states he is appealing from the courts order entered on February 26, 2007 sustaining without leave to amend demurrers to all causes of action alleged in Ligginss first amended complaint against Koyo Graphic, Tabalon, Morack, Takada, Bandai Entertainment, Inc., Johnson and Johnson & Associates (except the breach of the settlement cause of action against Koyo Graphic). The court entered a signed judgment, dismissing these causes of action and respondents from the action on March 19, 2007. (Code Civ. Proc., 581d [All dismissals ordered by the court shall be in the form of a written order signed by the court and filed in the action and those orders when so filed shall constitute judgments of the court and be effective for all purposes].) On March 26, 2007 respondents served Liggins with a document entitled notice of entry of judgment. Liggins had 60 days thereafter, or until May, within which to appeal this judgment. Ligginss notice of appeal, filed September 27, 2007, was untimely.[1]
The time for appealing a judgment is jurisdictional; once the deadline expires, the appellate court has no power to entertain the appeal. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 674.) (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.) Because Ligginss notice of appeal is untimely, we lack jurisdiction and must dismiss the appeal from the March 2007 judgment of dismissal. (Cal. Rules of Court, rule 8.104(b) [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].)
In his reply brief, Liggins suggests he delayed filing his notice of appeal based on the courts comment he could appeal when all issues in the case had been resolved. Liggins claims he decided to voluntarily dismiss his last remaining cause of action against Koyo Graphic in order to finally dispose of the action and appeal the courts earlier rulings. Ligginss claim is in essence a type of estoppel argument, suggesting he reasonably relied on the courts advice in delaying his filing of a notice of appeal. The first problem with this argument is that it is unsupported by the record, as there is no reporters transcript included in the record on appeal. A second and more fundamental problem is that an appellate court is not authorized to excuse the late filing of a notice of appeal. This is true even where a party had been actively misled regarding the requirement of timely filing a notice of appeal. As our Supreme Court commented in Estate of Hanley (1943) 23 Cal.2d 120, it is immaterial whether the misrepresentations concerning the date upon which the order was filed were willful or inadvertent, whether the reliance thereon was reasonable or unreasonable, or whether the parties seeking to dismiss are acting in good faith or not. It may be assumed that the appellant has presented grounds for relief which would be sufficient if relief could be granted. But the requirement as to the time for taking an appeal is mandatory, and the court is without jurisdiction to consider one which has been taken subsequent to the expiration of the statutory period. [Citations.] (Id. at p. 122.)
We accordingly dismiss the appeal from the March 2007 judgment.
April 11, 2007 Dismissal Order
The only cause of action alleged against respondent Custom Displays, Inc. in Ligginss first amended complaint was the sixth cause of action for negligence. On December 6, 2006 Custom Displays, Inc. demurred to the negligence cause of action on the grounds (1) the claim was barred by the statute of limitations, (2) the complaint failed to allege any legal duty owed to Liggins, and (3) the allegations of the complaint were uncertain and ambiguous.
On January 23, 2007 the trial court sustained Custom Displays, Inc.s demurrer to the negligence cause of action and granted Liggins 10 days leave to amend. Custom Displays, Inc. served Liggins with a notice of ruling on the demurrer on January 24, 2007.
Liggins failed to file a second amended complaint within 10 days and on February 14, 2007 Custom Displays, Inc. moved to dismiss Ligginss action against it. On April 11, 2007 the trial court granted Custom Displays, Inc. motion to dismiss. The court signed and entered a judgment of dismissal of Custom Displays, Inc. from the action on May 2, 2007. (Code Civ. Proc., 581d.)
Apparently, no one mailed a file-stamped copy of the judgment to any of the parties. In addition, no one mailed a document entitled notice of entry of judgment to any of the parties.[2] Thus, under California Rules of Court, rule 8.104(a) Liggins had 180 days from the May 2, 2007 judgment of dismissal to file a notice of appeal. Ligginss September 27, 2007 notice of appeal from the judgment dismissing Custom Displays, Inc. from the action is within this period and is thus timely.
We now turn to the merits of the dismissal order. Code of Civil Procedure section 581 governs the dismissal of parties and actions. This section authorizes a trial court to dismiss a complaint as against a party when 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. (Code Civ. Proc., 581, subd. (f)(2).) This is precisely what occurred in the case at bar. The trial court granted Liggins 10 days leave to amend his negligence cause of action against Custom Displays, Inc. Liggins failed to do so and Custom Displays, Inc. moved to dismiss Ligginss action against it for failing to timely file an amended complaint. In these circumstances, the trial court acted within its discretion in dismissing Ligginss complaint as against Custom Displays, Inc. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613 [plaintiffs failure to file an amended complaint within the time specified subjected their entire action to dismissal in the courts discretion under section 581, subdivision (f)(2)].)
Liggins refutes this conclusion. He claims he in fact filed an amended complaint on February 2, 2007, and thus within the prescribed 10 day period. We granted Ligginss request to augment the record to include the document he claimed he filed on this date. Our review of this document shows that it is not the required second amended complaint against Custom Displays, Inc. which the trial court granted Liggins leave to file. It is instead an amended opposition to demurrers filed by the other respondents. That Liggins did not file a second amended complaint in February is confirmed by the record showing he instead filed his second amended complaint on June 5, 2007.
DISPOSITION
The appeal of the March 2007 judgment incorporating the February and August 2007 orders of dismissal is dismissed. The May 2007 judgment is affirmed. Each side to bear its own costs on appeal.
NOT TO BE PUBLISHED.
HASTINGS, J.*
We concur:
MALLANO, P. J.
ROTHSCHILD, J.
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[1] Liggins also purports to appeal from the courts August 7, 2007 dismissal order sustaining Koyo Graphics demurrer without leave to amend to causes of action alleged in Ligginss second amended complaint. The court did so because they were the identical causes of action the court had already dismissed in its February 26, 2007 order when sustaining Koyo Graphics demurrer to Ligginss first amended complaint without leave to amend. The courts August dismissal order was not a new ruling but a reiteration of its February order and subsumed within it.
[2] We take judicial notice of the Superior Court file in this case. (Evid. Code, 459, subd. (a), 452, subd. (d).)
* Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
