Marbley v. Permanente Medical Group
Filed 6/28/12 Marbley v. Permanente Medical Group CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
SHARON A. MARBLEY,
Plaintiff and
Appellant,
v.
THE PERMANENTE MEDICAL GROUP,
INC.,
Defendant and
Respondent.
H036708
(Santa Clara
County
Super. Ct.
No. CV139824)
Plaintiff Sharon A.
Marbley sued defendant The Permanente Medical Group
for wrongful termination and other employment-related causes of action. The trial court granted defendant’s
demurrer was sustained and plaintiff failed to amend within the time
allowed. (Code Civ. Proc., § 518, subd.
(f)(2).)
dismissal. Finding no error, we shall
affirm.
I.
Factual and Procedural Background
Plaintiff filed a
complaint in state court in April 2009.
She alleged that she began working for defendant in 1991 and that
defendant terminated her employment on January
14, 2008. Because
plaintiff’s employment was governed by the terms of a collective bargaining
agreement, defendant maintained that federal
law was controlling and removed the case to federal court. The federal court dismissed three causes of
action and remanded the case to state court where plaintiff filed a
Back in state court,
defendant’s demurrers to the first and second amended complaints were sustained
with leave to amend. Plaintiff filed a
third amended complaint on June 14,
2010. Defendant again
demurred. Hearing on the demurrer was
set for October 21, 2010. Plaintiff filed opposition to the demurrer
noting the correct date for the hearing on her opposing papers. Nevertheless, she did not appear for the
hearing and later claimed she thought the hearing was supposed to be held on
October 27.
The trial court
sustained the demurrer to the third amended complaint on grounds plaintiff
failed to state a cause of action, granting leave to amend the first six of the
seven causes of action. The written
order explains how each cause of action is insufficient and as to each states
that the demurrer is sustained “with 20 days leave to amend.” On December
23, 2010, well after the 20 days had expired, plaintiff had not
filed a fourth amended complaint and defendant filed a motion to dismiss
pursuant to section 581, subdivision (f).
The hearing was set for February
10, 2011. Defendant mailed
its moving papers to plaintiff at her established address on December 22, 2010. On January
11, 2011, plaintiff filed papers titled “opposition” but which, in
substance, requested leave to file a fourth amended complaint. The hearing on the motion to dismiss took
place as scheduled on February 10,
2011. Again plaintiff did
not appear. The trial court granted the
motion and directed defense counsel to prepare the order. The written order was filed March 1, 2011.
Plaintiff attempted to
file a fourth amended complaint on February
15, 2011, five days after the motion to dismiss had been
heard. On February 16, 2011, she filed papers alleging that the
court “never mailed a scheduled Calendar hearing for Feb. 10th 2011.”
On March 3, 2011, the
trial court struck plaintiff’s fourth amended complaint, noting, “Dismissal has
ended the case.” Plaintiff filed a
motion for reconsideration but filed a notice of appeal on March 18, 2011, before the reconsideration motion
could be heard.
II.
Discussion
subdivision (f)(2), provides that the court may dismiss a complaint as to a
defendant 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.” We
review the trial court’s decision to dismiss an action under section 581,
subdivision (f)(2) for abuse of discretion.
(Leader v. Health Industries of
America, Inc. (2001) 89
Cal.App.4th 603, 612 (Leader).) As always, we begin our review of the trial
court’s decision by presuming it is correct.
We reverse it only if plaintiff affirmatively shows that the ruling was
wrong. (Denham v. Superior Court
(1970) 2 Cal.3d 557, 564.)
Much of plaintiff’s argument
concerns alleged deficiencies in the way the clerk’s office handled her
papers. No deficiencies are apparent in
the record before us. The clerk’s
transcript shows that plaintiff was given timely notice of all hearings as
required by law. The trial court’s order
sustaining the demurrer to the third amended complaint is clear and specific
about what plaintiff was required to do to correct her pleading. Indeed, plaintiff had been given three prior
opportunities to amend her pleading and managed to do so at those times.
Plaintiff also argues that she
should have received some response from the court to the opposition papers she
filed on January 11, 2011.
name="_ftnref3" title="">[3] Defendant’s motion to dismiss was on calendar
for February 10, 2011; plaintiff was entitled to come to court to be heard on
that date and argue any of the points she raised in her January 11 papers but
she did not appear. After the court
granted the motion to dismiss, the case was over; there was nothing more for it
to do.
We recognize that plaintiff, who is
not an attorney, has represented herself throughout this litigation. The rule in our courts is that when a
litigant acts as his or her own attorney the litigant is held to the same
restrictive rules of procedure and evidence as an attorney--no different, no
better, no worse. (Nelson v. Gaunt (1981)
125 Cal.App.3d 623, 638-639; Monastero v. Los Angeles Transit Co. (1955)
131 Cal.App.2d 156, 160-161.)
Notwithstanding the rule, the trial court took extra care to insure that
plaintiff understood what was required of her and gave her several
opportunities to correct her pleading so that her claims could be resolved by a
trial. The failure to amend when allowed
is, in effect, an admission that
plaintiff has stated the case as best she can.
(Cano v. Glover (2006)
failure to file a fourth amended complaint within the time allowed or, indeed,
at any time before the trial court heard defendant’s motion to dismiss. Since plaintiff has not made an affirmative
showing that the trial court abused its discretion in granting the dismissal
motion, we have no basis for reversal.
III.
Disposition
The order of dismissal
is affirmed.
Premo,
J.
WE CONCUR:
Rushing, P.J.
Elia, J.
Marbley v. The Permanente Medical Group, Inc.
H036708
Plaintiff’s complaint named three Kaiser entities. All amended complaints name only The Kaiser
Permanente Medical Group, Inc., or The Permanente Medical Group. According to defendant, the latter is its
correct name.
name="_ftn2" title=""> [2]
Further unspecified section references are to the Code of Civil Procedure.
