Filed 2/22/18 Williford v. King CA5






NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

RICHARD WILLIFORD,

Plaintiff and Appellant,

v.

THOMAS KING et al.,

Defendants and Respondents.

F073650

(Super. Ct. No. BCV-15-100224)


OPINION

APPEAL from a judgment of the Superior Court of Kern County. Lorna H. Brumfield, Judge.
Richard Williford, in pro. per., for Plaintiff and Appellant.
Clifford & Brown, Arnold J. Anchordoquy and Nicholas J. Street for Defendants and Respondents.
-ooOoo-


Plaintiff appealed after the trial court sustained defendants’ demurrer to his second amended complaint without leave to amend and dismissed his action. Plaintiff challenges the ruling on the demurrer and various other prejudgment orders. We conclude the demurrer was properly sustained, plaintiff has not demonstrated the trial court abused its discretion by denying him leave to amend again, and plaintiff has not established any error in the other orders. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Representing himself, plaintiff filed his original complaint. The demurrer of defendants, Thomas and Laurie King, to the original complaint was sustained with leave to amend. Plaintiff filed a first amended complaint, apparently naming the Kings, the Mountain Meadows Community Services District (the district), and five other individuals as defendants; the Kings again demurred. Plaintiff filed opposition, conceding the merit of the demurrer and requesting leave to amend. Before the hearing of the demurrer to the first amended complaint, plaintiff also filed an ex parte application for leave to file a second amended complaint. The trial court denied the ex parte application and again sustained the demurrer with leave to amend.
Plaintiff filed a second amended complaint. Defendants demurred, and the trial court sustained the demurrer to the second amended complaint without leave to amend. The trial court entered judgment in favor of defendants. Plaintiff filed a notice of appeal from the court’s March 29, 2016, order, which was the minute order sustaining defendants’ demurrer to the second amended complaint without leave to amend.
DISCUSSION
I. Appealability
The notice of appeal indicates plaintiff is appealing from the order sustaining defendants’ demurrer to the second amended complaint. That order, however, is nonappealable. (Los Altos Golf & Country Club v. County of Santa Clara (2008) 165 Cal.App.4th 198, 202.) Because a judgment has been entered as a result of the sustaining of that demurrer, we will liberally construe the appeal to have been taken from the judgment. (Ibid.; Code Civ. Proc., § 904.1, subd. (a)(1) ; Cal. Rules of Court, rule 8.100(a)(2).)
II. Motion to Dismiss Appeal
Defendants have moved to dismiss the appeal, arguing that the assignments of error in plaintiff’s briefs addressed orders other than the order identified in the notice of appeal, and it is beyond this court’s jurisdiction to consider separately appealable orders not mentioned in the notice of appeal. Defendants’ motion appears to be premised on their conclusion plaintiff is not challenging the judgment dismissing the action or the underlying order sustaining the demurrer without leave to amend. Although plaintiff’s briefs are far from a model of pleading, they do indicate he is challenging the ruling on defendants’ demurrer to the second amended complaint.
Further, one of the orders plaintiff challenges is an order imposing a discovery sanction of less than $5,000. While an order imposing sanctions in excess of $5,000 is a separately appealable order (§ 904.1, subd. (a)(12)), section 904.1, subdivision (b), expressly provides: “Sanction orders or judgments of five thousand dollars ($5,000) or less against a party . . . may be reviewed on an appeal by that party after entry of final judgment in the main action.” Thus, this postjudgment appeal of the sanctions order is expressly authorized.
Defendants assert: “ ‘[W]here several judgments and/or orders occurring close in time are separately appealable (e.g., judgment and order awarding attorney fees), each appealable judgment and order must be expressly specified—in either a single notice of appeal or multiple notices of appeal—in order to be reviewable on appeal.’ ” (DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43.) Defendants have not established that the orders challenged here are “separately appealable.” (Ibid.) Section 904.1 lists appealable orders. The list includes “a judgment,” “an order made after a judgment,” and “an order granting a new trial.” (§ 904.1, subd. (a)(1), (2), (4).) The cases defendants cite as establishing the rule requiring separate or specific notices of appeal involved separately appealable orders or judgments, or separate portions of the judgment, such as the judgment in a cross-complaint. (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239 [notice of appeal from the judgment only; attempt by the appellant to challenge a posttrial order granting a new trial failed]; Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 173 [notice of appeal from the judgment on the cross-complaint; briefs by the appellants that challenged the judgment on the complaint, which the appellants had not appealed, were improper]; DeZerega, at p. 43 [notice of appeal from the judgment only; the appellant improperly attempted to challenge a postjudgment order awarding attorney fees]; Glassco v. El Sereno Country Club, Inc. (1932) 217 Cal. 90, 91–92 [notice of appeal from the portion of the judgment denying relief against a particular defendant; challenge to a separate portion of the judgment denying a mechanic’s lien was not properly before the court].) “ ‘The rule favoring appealability in cases of ambiguity [in the notice of appeal] cannot apply where there is a clear intention to appeal from only part of the judgment or one of two separate appealable judgments or orders.’ ” (Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 625.) Here, however, defendant has not demonstrated plaintiff is appealing from a specific portion of the judgment or from one of two separate appealable judgments or orders. Rather, he appeals from the judgment, and challenges various prejudgment orders that are not separately appealable.
Defendants’ motion to dismiss is denied.
III. Burden on Appellant
“An appealed judgment is presumed correct, and the appellant must affirmatively demonstrate error.” (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1408.) “[T]he appellant must raise claims of reversible error . . . and ‘present argument and authority on each point made.’ ” (In re Sade C. (1996) 13 Cal.4th 952, 994 (Sade C.).) “This burden requires more than a mere assertion that the judgment is wrong.” (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.) The appellant must demonstrate that the error is prejudicial, by showing that “it appears ‘reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ ” (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 557 (Yield Dynamics).)
Further, an appellant is responsible for providing the reviewing court with a record adequate to address the issues raised on appeal and to demonstrate prejudicial error. (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416; Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) “ ‘A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.’ ” (Gee, at p. 1416.)
“ ‘When a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys. . . . Further, the in propria persona litigant is held to the same restrictive rules of procedure as an attorney.’ ” (Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125–1126.)
IV. Challenge to Ruling on Demurrer
Plaintiff appears to challenge the judgment against him on the ground the ruling on defendants’ demurrer to his second amended complaint was in error. To the extent plaintiff contends his second amended complaint adequately and properly pleaded legally cognizable causes of action against defendants, we conclude he has not established any error.
“On appeal from a dismissal after an order sustaining a demurrer, we review the order de novo, exercising our independent judgment about whether the complaint states a cause of action as a matter of law.” (Traders Sports, Inc. v. City of San Leandro (2001) 93 Cal.App.4th 37, 43.) “In doing so, we accept as true the properly pleaded material factual allegations of the complaint, together with facts that may be properly judicially noticed.” (Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497.) When the demurrer is sustained without leave to amend, we review for abuse of discretion. (Ibid.) “[W]e will only reverse for abuse of discretion if we determine there is a reasonable possibility the pleading can be cured by amendment.” (Id. at p. 1498.) The burden is on the plaintiff to show how the complaint may be amended and how the amendment will cure the defects. (Medina v. Safe-Guard Products, Internat., Inc. (2008) 164 Cal.App.4th 105, 112–113, fn. 8.)
In its ruling on the demurrer to the second amended complaint, the trial court noted that the bases of plaintiff’s causes of action were difficult to discern. It listed four causes of action that seemed to be included in the original complaint: general negligence, libel/slander, Penal Code sections 368 to 368.5, and a cause of action under section 2923.5 (no code cited). The trial court also listed the 12 causes of action mentioned in the first amended complaint. It found five causes of action in the second amended complaint: breach of contract, elder financial abuse, deprivation of civil rights (42 U.S.C. § 1983), declaratory and injunctive relief, and wrongful termination in violation of Labor Code section 1102.5.
The trial court noted: “After a demurrer is sustained with leave to amend, plaintiffs may add new claims involving legal theories, but only if based upon prior allegations. [Citation.] After the court grants leave to amend, the scope of the amendment is limited to the cause of action to which a demurrer was sustained. [Citations.] The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.” The trial court sustained the demurrer to the second amended complaint because it contained new allegations and causes of action, which plaintiff had not obtained leave to add. The trial court concluded: “This pleading contains no causes of action that were pleaded in the original Complaint and only one cause of action that could be interpreted from the uncertainty of the First Amended Complaint: breach of contract. However, that cause was improperly added in the last pleading . . . .”
We find no error in the trial court’s ruling. A trial court’s “granting of leave to amend must be construed as permission to the pleader to amend the cause of action which he pleaded in the pleading to which the demurrer has been sustained.” (People ex rel. Dept. Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785.) “The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.” (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)
The original complaint is not part of the record on appeal. In its ruling on the demurrer to the original complaint, the trial court noted the pleading included “five decipherable labels for causes of action recognized by California law, but fail[ed] to include sufficient facts to constitute any of the causes [of action] against Defendants.” Because of the absence of facts and other defects in the original complaint, the court concluded defendants were unable to respond to the pleading.
Plaintiff filed a form first amended complaint. In the section for identifying the attached causes of action, he identified only general negligence. In the general negligence attachment, plaintiff listed various claims, such as elder abuse, slander, and breach of contract, but did not include separate causes of action for those claims and did not allege any facts concerning any acts of defendants or any injuries to plaintiff which allegedly gave rise to any such claims. Plaintiff’s opposition to defendants’ demurrer to the first amended complaint admitted his pleading added nine new causes of action and six new defendants. It also admitted the merit of defendants’ challenge to the sufficiency of the first amended complaint.
Plaintiff’s second amended complaint attempted to allege causes of action for breach of a written employment contract, elder financial abuse, violation of civil rights (42 U.S.C. § 1983), declaratory and injunctive relief related to wrongful expenditure of funds by the district and the individuals as officials of the district, and wrongful termination in violation of statute. The demurrer to the second amended complaint, the opposition to the demurrer, and any reply are not part of the record. A request for judicial notice is mentioned in the reporter’s transcript of the hearing of the demurrer, but that document also is not included in the record on appeal.
The trial court concluded the causes of action alleged in the second amended complaint were not within the scope of the leave given to amend the original or first amended complaint. Although plaintiff filed an ex parte application for leave to file a second amended complaint, the application was denied and the proposed second amended complaint presented with that application was not the same as the second amended complaint actually filed. No noticed motion for leave to add new causes of action in the second amended complaint was filed or granted.
Plaintiff has not demonstrated that the causes of action alleged in the second amended complaint were adequately alleged and were within the scope of the leave granted to amend. The original complaint is not before us. Therefore, we cannot effectively review the trial court’s determination that the second amended complaint exceeded the scope of the causes of action alleged in the original complaint. Plaintiff admitted the first amended complaint added nine causes of action not contained in the original complaint. Thus, a comparison of the first amended complaint and the second amended complaint is not dispositive of this issue.
We also note that, during oral argument, defendants argued plaintiff failed to comply with the requirement that a claimant present a claim to a government entity before filing suit against the entity or its officers or employees. (Gov. Code, §§ 905, 61119; Julian v. City of San Diego (1986) 183 Cal.App.3d 169, 175–176.) Plaintiff alleged in his second amended complaint that the district is a community services district under California law, and the individual defendants are officials of the district. Defendants cited Government Code section 61119, which requires presentation of a claim for money or damages against a community services district in accordance with Government Code section 905. The trial court also apparently granted defendants’ request for judicial notice of documents establishing that the district is a government entity, subject to the claim presentation requirement. The second amended complaint did not allege compliance with the claim presentation requirement or any excuse for failure to comply. “[A] plaintiff must allege facts demonstrating or excusing compliance with the claim presentation requirement. Otherwise, his complaint is subject to a general demurrer for failure to state facts sufficient to constitute a cause of action.” (State of California v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1243.)
Plaintiff has not submitted a record or argument sufficient to demonstrate that the trial court erred in sustaining the demurrer to the second amended complaint. He has not shown the causes of action alleged in that pleading fell within the scope of the leave to amend granted when the prior demurrers were sustained. He also has not identified each cause of action he attempted to allege, set out its essential elements, and shown how the facts alleged in the second amended complaint satisfied the requirement of alleging facts showing the existence of each of those elements.
Plaintiff also has not demonstrated an abuse of the trial court’s discretion in denying leave to amend. He has not identified any additional facts he could allege that would cure the defects in any causes of action he was permitted to amend and attempted to allege in the second amended complaint. Consequently, plaintiff has not shown that the trial court committed prejudicial error in sustaining the demurrer to the second amended complaint without leave to amend.
V. Discovery Sanctions
Plaintiff challenges the sanctions imposed against him in connection with a discovery motion filed by defendants. Defendants filed a motion to compel further responses to interrogatories and to a demand for production of documents. (§§ 2023.010, 2030.010, 2031.010.) The supporting declaration stated that defendants served on plaintiff a request for admissions, which included requests that he admit he had no evidence to support his claims. Defendants also served a set of form interrogatories that included interrogatory No. 17.1, which requested that he identify all facts, witnesses, and documents that supported his denial of any of the requests for admissions.
Initially, plaintiff failed to admit or deny any of the requests for admissions, and provided nonresponsive information to interrogatory No. 17.1. After the parties met and conferred, plaintiff served a further response to the request for admissions in which he denied every statement; he failed to provide any further response to interrogatory No. 17.1 or the demand for production, however. Defendants requested further responses to those items, but plaintiff did not provide any.
Defendants then moved to compel a further response to the form interrogatories and demand for production. They also requested monetary sanctions to reimburse them for their attorney fees incurred in making the motion. Plaintiff concedes in his opening brief that he filed no opposition to the motion to compel. The register of actions reflects that, although he filed no opposition to the motion, the trial court permitted him to orally argue the matter. The trial court ordered plaintiff to provide further responses and found good cause to impose sanctions on plaintiff.
The discovery statutes provide that, “[t]he court shall impose a monetary sanction . . . against any party . . . who unsuccessfully makes or opposes a motion to compel a further response to [a discovery request], unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (§§ 2030.300, subd. (d), 2031.310, subd. (h).) Plaintiff unsuccessfully opposed the motion to compel, and the trial court imposed sanctions as authorized by the discovery statutes.
We review the trial court’s order imposing discovery sanctions for abuse of discretion. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 401.) “We resolve all evidentiary conflicts most favorably to the trial court’s ruling [citation], and we will reverse only if the trial court’s action was ‘ “ ‘arbitrary, capricious, or whimsical.’ ” ’ [Citations.] ‘It is [appellant’s] burden to affirmatively demonstrate error and, where the evidence is in conflict, this court will not disturb the trial court’s findings.’ ” (Ibid.)
Defendants moved for further responses and made a showing to the trial court of the inadequacy of the responses given. The trial court granted the motion and imposed monetary sanctions. Plaintiff argues that he made a good faith attempt to provide the requested information, but he has not cited anything in the record that supports his assertion. He has not attempted to show that he acted with substantial justification when he denied the matters contained in the request for admissions, but failed to provide any supporting information in response to interrogatory No. 17.1. Further, he has not shown that any other circumstances made the imposition of sanctions unjust. We conclude the trial court’s ruling was consistent with the statutory authorization of sanctions and was not arbitrary, capricious, or whimsical.
Plaintiff seems to argue the sanctions were improper because the statute authorizing an award of attorney fees in an action for elder abuse is a “one-way statute,” presumably meaning it authorizes an award only in favor of a successful plaintiff. (See Welf. & Inst. Code, § 15657.) That statute authorizes an award of attorney fees to a successful plaintiff who establishes the liability of a defendant for elder abuse, in the form of physical abuse or neglect. (Ibid.) It is not a statute governing or affecting imposition of sanctions for discovery abuse. Thus, it has no application to the discovery sanctions imposed against plaintiff in connection with defendants’ successful discovery motion.
Plaintiff has not demonstrated any error in the trial court’s imposition of sanctions.
VI. Other Pretrial Orders
Plaintiff attempts to challenge other pretrial rulings or orders of the trial court. The challenges are without merit.
Plaintiff appears to challenge an extension of time, granted to the Kings, to respond to the original complaint. The Kings requested an extension to enable them to determine whether any insurance potentially covered their defense and to obtain counsel. The order on that request is not included in the record.
Plaintiff asserts the trial court did not follow the correct procedure in granting an extension. Section 1054 authorizes the trial court to grant an extension of time to respond to a complaint; plaintiff has not discussed that provision or specified any way in which the trial court failed to follow its procedures. Additionally, even if the trial court failed to follow the proper procedure, plaintiff has not demonstrated that any such error was prejudicial, i.e., that “it appears ‘reasonably probable that a result more favorable to [plaintiff] would have been reached in the absence of the error.’ ” (Yield Dynamics, supra, 154 Cal.App.4th at p. 557.)
Plaintiff attempts to challenge the denial of his motion for reconsideration of the order granting the Kings an extension of time to respond to the original complaint. He has not, however, specified what error the trial court purportedly committed in denying that motion. The appellant must raise claims of reversible error and present argument and authority on each point made. (Sade C., supra, 13 Cal.4th at p. 994.) “ ‘The appellate court is not required to search the record on its own seeking error.’ ” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) Plaintiff has not established any prejudicial error in the order on his motion for reconsideration.
Plaintiff appears to challenge the trial court’s order on defendants’ motion to quash plaintiff’s subpoenas and for issuance of a protective order. He seems to argue the trial court found service of his opposition to the motion defective, and refused to allow him to show certified mail receipts to prove proper service. The minute order states: “The Court notes service of the Opposition was defective. . . . The plaintiff also filed a Sur Reply. In the interest of justice the court considered both but in the future the court will not consider pleadings not filed in compliance with code.” Accordingly, even if service of the opposition was not defective, as the court stated, plaintiff has not demonstrated prejudicial error because the trial court nonetheless considered the opposition in making its decision.
Finally, plaintiff challenges the rulings on defendants’ demurrer to and motion to strike portions of the original complaint, and the demurrer to and motion to strike portions of the first amended complaint. If a plaintiff amends his complaint, however, the new complaint supersedes the prior pleading and the plaintiff waives any error in the ruling sustaining the demurrer to the prior pleading. (Sheehy v. Roman Catholic Archbishop (1942) 49 Cal.App.2d 537, 540–541.) Plaintiff elected to amend his complaint, and the second amended complaint superseded all prior complaints. Plaintiff is therefore barred from contending on appeal that the demurrers to the earlier complaints were sustained in error.
DISPOSITION
The judgment is affirmed. Defendants are entitled to their costs on appeal.



HILL, P.J.
WE CONCUR:



GOMES, J.



SMITH, J.