Mack v. City of
Filed 1/24/13 Mack v. City of Oakland CA1/4
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opinion has not been certified for publication or ordered published for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
RONALD A.
MACK, SR.,
Plaintiff and Appellant,
v.
CITY OF OAKLAND,
Defendant and Respondent.
A135856
(Alameda
County
Super. Ct.
No. RG11563787)
The
trial court sustained the demurrer of respondent City of Oakland
(city) to appellant Ronald A. Mack, Sr.’s (Mack)
leave to amend. A judgment dismissing
that complaint soon issued. Mack
appeals,
contending that the trial court erred by sustaining the demurrer. We affirm the judgment.
FACTS
On
March 29, 2010, Mack’s car
was booted and later towed by B&B Towing.
He learned that an electronic request from the city’s parking division
led to this action. On April 1, 2010, Mack met with city
officials, who advised him that the towing company’s action was proper because
he had 10 outstanding parking tickets.
only four were then owed by him; the other six had been paid, were under
administrative review,
name="_ftnref3" title="">[3] or
were not yet due.
According
to Mack, city officials admitted at the April
1, 2010, meeting that their records were in error. He also asserts that they entered into a
verbal agreement with him to correct their records and to release his car if he
paid certain sums that he owed. In the
next two weeks, Mack paid his remaining traffic tickets and he obtained a
release from the city authorizing B&B Towing’s return of his vehicle. When he went to reclaim his car, B&B Towing
told Mack that while he had settled his parking fines with the city, he was
required to pay them for storage fees before they would release his vehicle to
him.
In
March 2011, Mack sued the city,
name="_ftnref4" title="">[4]
claiming that it breached a verbal agreement that would have entitled him to
his vehicle without having to pay any fees beyond the outstanding parking
tickets. He alleged that city officials
tricked him into believing that by paying the parking fees, he would obtain a
release for his vehicle without being required to pay any additional sums to
B&B Towing. He alleges that the city
officials acted in a malicious manner, prompted by a desire to obtain city
revenue. He also alleges that the city’s
breach caused him emotional distress and resulted in a lengthy hospitalization.
On
April 4, 2011, the city
demurred to this complaint. On October 19, 2011, the trial court
sustained that demurrer with leave to amend.
The trial court found Mack’s initial complaint to be vague and unclear
about the specific material facts supporting each alleged claim. Mack was given until November 2, 2011, to file and serve an amended
pleading. The city would then have two
more weeks to respond.
Mack
attempted to file his first amended complaint on October 28, 2011.
Due to a clerical error, the first amended complaint was not filed, but
was inadvertently attached to another document that Mack filed that day. The trial court’s register of actions shows
no proof of service of the first amended complaint on the city in October or
November 2011. The city received a copy
of the unfiled complaint in October 2011, but it took no action on this
document.
In
January 2012, the city moved to dismiss Mack’s action on the ground that he
failed to amend the complaint within the time allowed by the trial court. (Code Civ. Proc., § 581, subd.
(f)(2).) A hearing on the motion was set
for April 18, 2012.
Meanwhile,
in February 2012, Mack’s first amended complaint was actually filed. In it, Mack alleged two causes of
action—fraud and breach of a verbal agreement.
In both causes of action, he alleged that the city was liable because
its employees acted with malice. He
alleged that city officials knew that they had no authority to waive storage
fees on behalf of B&B Towing and maliciously concealed this fact from
him. He prayed that his vehicle would be
released from B&B Towing, that the city would pay all fees owed for
storage, and requested damages—including car registration fees—in order to make
him whole. In all, Mack sought $215,000
in compensatory and punitive damages.
Proof of service of the filed first amended complaint was filed the same
day.
The
city’s motion to dismiss Mack’s action for failure to amend the initial
complaint was denied in April 2012. At
the hearing, the city admitted that it had received the unfiled first amended
complaint on October 28, 2011. The trial court ruled that Mack had attempted
to comply with the November 2, 2011
deadline and was prevented from compliance because of a clerical error. Thus, it determined that the first amended
complaint filed on February 2, 2012,
remained operative.
The
city was given until May 7, 2012,
to respond to the first amended complaint.
On May 7, 2012, the
city demurred to the first amended complaint, on two grounds—because Mack
failed to state facts sufficient to constitute a cause of action and because
the pleading was so uncertain as to be ambiguous and unintelligible. (Code Civ. Proc., § 430.10, subds. (e),
(f).)
Also,
in May 2012, Mack objected to the trial court allowing the city additional time
to respond to his first amended complaint, asserting that the city was in
contempt for failing to respond to his October 2011 attempt to file that
complaint. He asked the trial court to
grant him a default judgment against the city for $215,000. In June 2012, he formally moved for entry of
a $215,000 default judgment against the city for failure to respond to his
first amended complaint. The trial court
rejected this request for default judgment, in part because Mack failed to file
a proof of service showing valid service of the first amended complaint.
On
June 19, 2012, the trial
court issued a tentative ruling sustaining the city’s demurrer to Mack’s first
amended complaint without leave to amend.
It found that the city was immune from liability for the alleged fraud
and misrepresentation of the city employees.
It also found that Mack failed to plead sufficient facts to support his
claim that those employees entered into a valid verbal agreement with him on
the city’s behalf. The city was ordered
to prepare a judgment of dismissal for the trial court’s signature.
Mack
contested this tentative ruling, arguing inter alia that the city’s demurrer to
his first amended complaint should be deemed void as a sanction for failing to
respond to the unfiled version of it that the city admitted receiving in
October 2011. On June 25, 2012, the trial court issued a minute
order sustaining the city’s demurrer without leave to amend on the basis
asserted in its tentative ruling.
Judgment dismissing Mack’s action was entered on June 29, 2012.
TIMELY APPEAL FROM JUDGMENT
Our first task is to determine if we have jurisdiction to
consider this appeal. In his June 27, 2012 notice of appeal, Mack
purports to appeal from the June 25,
2012 minute order sustaining the city’s demurrer. This is not an appealable order. An order sustaining a demurrer is not
appealable. (See Beazell v. Schrader (1963) 59 Cal.2d 577, 579-580; see also 9
Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 154, pp. 230-231.) A minute order is not an appealable judgment,
but is merely a basis on which a judgment may be rendered. (Bianco
v. California
1113, 1121, fn. 3; see Code Civ. Proc., § 904.1, subd. (a)(1); see also 7 Witkin,
Cal. Procedure, supra, Judgment, § 8, pp. 552-553.) We have no jurisdiction to consider the merits of an appeal
from a nonappealable order. Typically,
we must dismiss an appeal brought from a nonappealable order on jurisdictional
grounds. (See, e.g.,
Cal.2d at pp. 579-580;
see also 9 Witkin, Cal. Procedure, supra,
Appeal, § 86, pp. 146-147.)
In
this matter, Mack was required to appeal from the judgment of dismissal issued
after the demurrer was sustained. (Code
Civ. Proc., § 904.1, subd. (a)(1).)
Mack—who represents himself in pro per—did not provide us with a copy of
the June 29, 2012
judgment. However, we obtained a copy of
this court record from the Clerk of the Superior
Court of Alameda
County on our own motion. We take judicial notice of it. (Evid. Code, §§ 452, subd. (d)(1), 459,
subd. (a).)
We
must liberally construe Mack’s June
27, 2012 notice of appeal.
(Cal. Rules of Court, rule 8.100(a)(2).)
Applying this rule of liberal construction, we deem that he intended to
appeal from the June 29, 2012
judgment rather than the cited order. As
the June 27, 2012 notice of
appeal was filed after the trial court announced its intended ruling on June 25, 2012, but before it rendered
its June 29, 2012 judgment,
we deem the notice of appeal to have been filed immediately after entry of
judgment. (
8.104(d)(2).) As thus construed, Mack
filed a timely notice of appeal from
the judgment of dismissal. (
8.104(a).)
LACK OF RECORD
Our
attempt to resolve the legal issue is hampered by Mack’s decision to proceed on
appeal without obtaining a reporter’s transcript of the oral proceedings. On appeal, we begin with the presumption that
the trial court’s decision was correct.
Mack, as the appellant, has an affirmative duty to demonstrate that it
was incorrect. This is not simply a
principle of appellate practice, but an ingredient of the constitutional
doctrine of reversible error. (See
557, 564; Shepherd v. Greene (1986)
185 Cal.App.3d 989, 994.) When, as here,
the relevant record on appeal consists solely of a clerk’s transcript,
the normal presumption that the trial court’s determination was correct takes
on special significance. In such
circumstances, we must conclusively presume
that the evidence in the missing reporter’s transcript would support the trial
court’s decision. (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154; see
1100, 1102; see also 9 Witkin, Cal. Procedure, supra, Appeal, § 628, pp. 704-706.) Mack has not met his obligation to provide
the necessary record on appeal to allow us to resolve the underlying issues in
his favor.
DEMURRER SUSTAINED
Despite
this defect, we consider the issue that Mack appears to raise—that the trial
court erred by sustaining the city’s demurrer.
He seems to argue that on the evidence before the trial court, it should
have found in his favor on the merits of his cause of action. The case was not then ready for trial, but
was at the preliminary demurrer stage to determine whether Mack’s complaint was
legally sufficient to warrant trial.
A
demurrer tests the legal sufficiency of the complaint. (City
of Morgan Hill v. Bay Area Air Quality Management Dist. (2004) 118
Cal.App.4th 861, 869 (City of Morgan Hill);
Hernandez v. City of Pomona (1996) 49
Cal.App.4th 1492, 1497; see Code Civ. Proc., § 430.10,
subd. (e).) On review from a
judgment dismissing an action after sustaining a demurrer without leave to
amend, we conduct an independent review of the complaint to determine if—as a
matter of law—it stated facts sufficient to constitute a cause of action. (Moore
v. Regents of University of California (1990) 51 Cal.3d 120, 125;
136 Cal.App.4th 1255, 1264 (Bardin);
Montclair (1999) 76 Cal.App.4th 784, 790.)
If we conclude that Mack stated a cause of action under any possible
legal theory, the demurrer must be overruled.
(See Aubry v. Tri-City Hospital
Dist. (1992) 2 Cal.4th 962, 967; City
of Morgan Hill, supra, 118 Cal.App.4th at p. 870; see also
41 Cal.4th 859, 870.) However, if we
find that the facts alleged do not state a cause of action as a matter of law,
then we must find that the trial court properly sustained the demurrer. (See City
of Morgan Hill, supra, 118 Cal.App.4th at p. 870; Smith v. City and County of San Francisco (1990) 225 Cal.App.3d 38,
55.)
A
demurrer raises no factual issues,
but assumes the facts alleged in the complaint to be true. On appeal, we interpret the complaint in a
reasonable manner. (Blank v. Kirwan (1985) 39 Cal.3d 311, 319; Morgan v. AT&T Wireless Services, Inc. (2009) 177 Cal.App.4th
1235, 1252.) We deem the demurrer to
admit all material facts that are properly pled. (Aubry
v. Tri-City Hospital Dist., supra, 2 Cal.4th at p. 967;
365, 374-375; see Moore v. Conliffe
(1994) 7 Cal.4th 634, 638.) We accept as
true those facts that may be implied or inferred from those expressly
alleged. (City of Morgan Hill, supra, 118 Cal.App.4th at p. 869;
(1995) 37 Cal.App.4th 1397, 1403.) We
may consider facts that are subject to judicial notice. (Moore
v. Conliffe, supra, 7 Cal.4th at p. 638; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) We do not assume the truth of any
conclusions set out in the complaint. (
Cal.4th at p. 967; Bardin, supra, 136
Cal.App.4th at p. 1263; City of Morgan
Hill, supra, 118 Cal.App.4th at p. 870.)
Mack purported to allege two causes
of action against the city. On the cause
of action alleging that its employees committed fraud and misrepresentation in
a malicious manner, the city was immune from liability. A city is not liable for an injury caused by
an employee’s misrepresentation, even if that misrepresentation is
intentionally made. (Gov. Code,
§ 818.8; Harshbarger v. City of
Colton (1988) 197 Cal.App.3d 1335, 1339-1344.) Mack alleges in his pleading that the city is
not immune, but this is a legal conclusion, not a factual allegation that binds
on a demurrer. (See, e.g.,
Cal.4th at p. 967; Bardin, supra, 136
Cal.App.4th at p. 1263.)
On the second cause of action for
breach of a verbal agreement, Mack did not plead any facts showing that the
employees had the authority to enter into an enforceable contract on the city’s
behalf or that they actually entered into a valid agreement. Without the authority to enter into a binding
verbal agreement with Mack, he cannot establish that the action of the
employees can be imputed to the city.
(See, e.g., Jeewarat v. Warner
Bros. Entertainment Inc. (2009) 177 Cal.App.4th 427, 434 [no vicarious
liability unless employee acting within scope of employment].)
V. LEAVE TO AMEND
Mack may also be deemed to contend
that he should have been allowed leave to amend his amended complaint. Even if the demurrer was properly sustained,
a trial court has discretion to grant or deny leave to amend. (Montclair
Parkowners Assn. v. City of Montclair, supra, 76 Cal.App.4th at p.
790.) If there is a reasonable
possibility that a defect in the pleading can be corrected by amendment, the
trial court abuses its discretion if it denies leave to amend. (Aubry
v. Tri-City Hospital Dist., supra, 2 Cal.4th at p. 967;
Cal.App.4th 629, 637.)
As
the plaintiff, Mack must bear the burden of proving that another amended
complaint could reasonably state facts sufficient to survive a demurrer. (See Hendy
v. Losse (1991) 54 Cal.3d 723,
742.) He has not done so. There is no evidence that he sought leave to
amend in the trial court. On the record
before us, we must conclusively assume that he did not so do. (See pt. III, ante.) More importantly, his
briefs do not cite any additional facts that he could allege to overcome the
defects in his amended complaint. Instead,
he asserts that the facts in that complaint were sufficient to allow the trial
court to find in his favor on the merits.
Under these circumstances, we conclude that the trial court properly
sustained the city’s demurrer without leave to amend.
The
judgment is affirmed.
_________________________
Reardon,
J.
We concur:
_________________________
Ruvolo, P.J.
_________________________
Rivera, J.
part II., post.
a vehicle may be booted, the owner must have at least five outstanding parking
tickets. (Veh. Code, § 22651, subd.
(i)(1).)
