Pagtakhan v. Black Pants

Filed 12/30/09 Pagtakhan v. Black Pants CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

We consolidated these two appeals by plaintiff Marlon Estacio Pagtakhan, who has appealed from separate orders in favor of defendants Black Pants, Inc. and Chuck Witt dismissing his complaint for damages against them. The dismissals were entered on ex parte applications after plaintiff failed to file an amended complaint within the period granted by the trial court when it sustained demurrers to the complaint.

Plaintiff has at all times acted in propria persona while being lodged at Napa State Hospital. On December 9, 2008, he filed a complaint with 18 causes of action against seven defendants, including Black Pants and Witt. The specific causes of action and the alleged details supporting them are not germane to the issues before us, and thus need not be summarized at length. Suffice to say it appears that the claims stem from plaintiffs attendance at a wrestling camp conducted in a gym in Hayward, and what ensued thereafter, culminating in plaintiffs arrest by Witt, a police officer for the City of Burlingame. It further appears that Black Pants was also involved, although whether its role was supervisory or merely participatory cannot be established with certainty.

Witt and Black Pants filed separate demurrers. The trial courts March 18, 2009 order on Witts demurrer provided: The demurrer is sustained, with leave to amend, as to the twelfth, thirteenth, fourteenth, seventeenth, and eighteenth causes of action as alleged against Chuck Witt, as these causes of action do not state facts sufficient to constitute a cause of action. Plaintiff fails to plead compliance with the Tort Claims Act as to the twelfth, thirteenth, fourteenth, seventeenth, and eighteenth causes of action. Finally, the fourteenth cause of action does not allege that demurring defendant was acting as a public employee. [] . . . [] Plaintiff is to file and serve his first amended complaint no later than April 17, 2009.

The order on Black Pantss demurrer was also filed on March 18, 2009. It provided: As to the demurrer of Black Pants, Inc., sustained without leave to amend as to 3rd, 4th, and 6th causes of action. All are time barred. Sustained with leave to amend as to the 5th, 9th, 10th, 12th and 18th causes of action for failure to allege facts constituting a cause of action. [] . . . Plaintiff to file a first amended complaint no later than April 17, 2009.

On March 26, 2008, plaintiff filed applications to stay the demurrer orders. Both applications were denied on April 27, 2008 on the ground that there is no legal authority that exists for this type of relief.[1]

On April 29, 2008, Witt filed an Ex Parte Application For An Order Dismissing Plaintiffs Entire Action Against Chuck Witt and For Entry Of Judgment. The motion was made on the grounds that As of April 28, 2009, plaintiff has not filed an amended complaint, thereby entitling Witt to dismissal of the entire action against him and entry of judgment in his favor pursuant to the provisions of California Rule of Court 3.123(h) and Code of Civil Procedure 581(f)(2). Written notice was provided by overnight courier to plaintiff on April 28, advising him that the ex parte application would be made on May 1. In addition to a brief memorandum of points and authorities, Witts motion was supported by a declaration of counsel explaining how notice was provided to plaintiff. The court granted Witts application, and dismissed plaintiffs action in an order filed May 1, 2009. Plaintiffs timely appeal from this order was designated A125470.

On May 6, 2009, Black Pants filed its own Ex Parte Application To Dismiss Entire Action And Order Of Entry Of Judgment that was virtually identical to the one made by Witt. It too cited Code of Civil Procedure section 581, subdivision (f)(2) and rule 3.123(h) of the California Rules of Court, and plaintiffs failure to file an amended complaint. It also was sent to plaintiff by overnight courier, advising him that this application would be presented to the trial court on May 8. The court granted Black Pants application, and dismissed plaintiffs action in an order filed May 8, 2009. Plaintiffs timely appeal from this order was designated A125468.

Plaintiffs states in his briefs that he filed a first amended complaint on August 17, 2009, but this cannot be verified from either record on appeal, neither of which includes such a pleading.[2] Even if that pleading was a part of the record, it would be disregarded because it was not before the trial court when it made the rulings challenged by plaintiff. (Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal,  334, p. 385.) We also note that plaintiff does not attack the trial courts sustaining the original demurrers. All we have before us, and all we decide, is whether the dismissal orders are subject to a legal infirmity pointed out by plaintiff.

Plaintiff first contends that the trial court improperly granted [each] defendants ex parte application with judgment in favor of the defendant because the trial court wholly neglected the fact that the plaintiff requested a stay with intention to amend complaint and that prior pre-trial rulings [i.e., the demurrer rulings] were pending review in the Court of Appeal. The trial court neglected nothing. Plaintiffs requests for stays were made to the trial court and were denied bythe trial court.

Witt argues the effect of Code of Civil Procedure section 916, which governs automatic stays for certain types of appeals, but this authority is inapposite. Even if plaintiff did attempt to appeal from the orders sustaining demurrers, which in any event are not appealable, regardless of whether leave to amend was or was not granted (see 9 Witkin, Cal. Procedure, supra, Appeal,  154, pp. 230-231 and authorities cited), the statute would not automatically halt proceedings in the trial court. (See Mortgage Guarantee Co. v. Lee (1943) 61 Cal.App.2d 367, 373.) In this situation, a stay could only be had if plaintiff obtained a writ of supersedeas from this court. (Code Civ. Proc.,  923; 9 Witkin, Cal. Procedure, supra, Appeal,   279, pp. 333-334,  288, pp. 340-341.) Plaintiff did not do so.

Invoking the general principle that a plaintiff should be allowed reasonable opportunity to amend a pleading, plaintiff next contends the trial court should not have entered judgment because, again, the court neglected the plaintiffs intent to amend the complaint [and] the fact that related issues were pending in a higher court. Again, the trial court neglected nothing. The court provided plaintiff with the opportunity to amend his complaint by a specified date. Plaintiff simply chose not to do so, preferring other approaches. (See fn. 1, ante.) Plaintiffs attempt to file an amended complaint long after the period for doing so had elapsed, and after the unamended complaint was dismissed, will not bring plaintiff within the rule permitting liberal amendment.

The procedures employed by Black Pants and Witt are not unusual. The court may dismiss the complaint as to that 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. (Code Civ. Proc.,  581, subd. (f)(2).) Dismissal in such circumstances has long been established and accepted. (See Saddlemire v. Stockton Savings etc. Soc. (1904) 144 Cal. 650, 655-656; King v. Montgomery (1875) 50 Cal. 115, 116.) As is apparent from the permissive language used in the statute, dismissal is not mandatory, but is vested in the trial courts discretion, and the courts decision is reversible only upon a clear showing that discretion was abused. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613-614; Gitmed v. General Motors Corp. (1994) 26 Cal.App.4th 824, 827.)

Various court rules spell out how dismissal may be obtained by ex parte motion. A motion to dismiss the entire action and for entry of judgment after expiration of the time to amend following the sustaining of a demurrer may be made by an ex parte application to the court under Code of Civil Procedure section 581(f)(2). (Cal. Rules of Court, rule 3.1320(h).) A party seeking an ex parte order must notify all parties no later that 10:00 a.m. the court day before the ex parte appearance, absent a showing of exceptional circumstances that justify a shorter time for notice. (Id., rule 3.1203(a).)

When notice of an ex parte application is given, the person giving notice must: [] (1) State with specificity the nature of the relief to be requested and the date, time, and place for the presentation of the application; and [] (2) Attempt to determine whether the opposing party will appear to oppose the application. (Cal. Rules of Court, rule 3.1204(a).) An ex parte application must be accompanied by a declaration regarding notice stating: [] . . . that, within the applicable time under 3.1203, the applicant informed the opposing party where and when the application would be made. (Id., rule 3.1204(b)(1).)

Plaintiff argues that Black Pants and Witt failed to comply with the procedures for seeking an ex parte dismissal. Specifically, plaintiff argues that the notices provided by Black Pants and Witt were deficient in that: (1) he did not receive them until after the applications had been granted; and (2) neither advised the court of efforts to ascertain whether he would oppose the application. In this, plaintiff maintains, Black Pants and Witt took advantage of the plaintiffs disability and confinement to Napa State Hospital.

As for the notice, both Black Pants and Witt submitted proof that effort had been made to ensure that overnight courier service provided plaintiff with the requisite notice. Those proofs were accepted by the trial court as sufficient that plaintiff did have actual notice.[3] Plaintiff can point to nothing in the record to support the assertion in his briefs that he did not receive the notice until after the dismissals had been ordered.[4] Plaintiff thus fails to carry his burden of proving error on the face of the record. (See Schnabel v. Superior Court (1993) 5 Cal.4th 704, 718; Hughes v. Wheeler (1888) 76 Cal. 230, 234.) Put another way, plaintiff has not established that by granting either motion the trial court abused its discretion under Code of Civil procedure section 581. (Gitmed v. General Motors Corp., supra, 26 Cal.App.4th 824, 827.)

It is true that neither Black Pants nor Witt advised the court whether plaintiff would oppose their respective applications to dismiss. However, in the circumstances shown here, the omission cannot be regarded as prejudicial to plaintiff. Given the extensive efforts plaintiff had already expended, the trial court could reasonably assume that he would not concur with dismissing Black Pants and Wittor any defendantat this stage of the litigation. Why he did not make some kind of effort to communicate his opposition must remain a matter of speculation. But the point is not of significant importance because, by this point in the proceedings, any opposition by plaintiff would be unlikely to exceed the purely nominal. Assuming, as we do, that notice was properly given, the grounds on which such an opposition could be mounted are scant. It is undisputed that, whatever the reason, plaintiff had not filed an amended complaint by the deadline set by the trial court when it sustained the demurrers and gave him leave to amend. The reasons plaintiff now offers, had they been timely presented to the trial court, almost certainly would not have prevented granting the motions for dismissal. Thus, we conclude that the omissions do not furnish a ground for reversal. (Cal. Const., art. VI,  13.)

Plaintiffs final contention is that the trial court should not have made the dismissal with prejudice. Not so, because the process used here looks to a dismissal with prejudice. (See Cano v. Glover (2006) 143 Cal.App.4th 326, 329-330.)

The orders of dismissal are affirmed.

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Richman, J.

We concur:

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Kline, P.J.

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Lambden, J.

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[1] Plaintiff also made various unsuccessful efforts in the trial court and in this court to overturn the demurrer against Black Pants.

During March and April 2008, plaintiff was further occupied with unsuccessfully opposing another defendants effort to quash service of summons. We recently affirmed the order granting the motion to quash. (Pagtakhan v. Alexander (Nov. 24, 2009, A124628) [nonpub. opn.].)

[2] Assuming this representation is true, it is of no consequence. The dismissals having been entered and these appeals commenced, such a filing would be a nullity. (See Karp v. Dunn (1964) 229 Cal.App.2d 186, 194.)

[3] This conclusion has particular force as to Witt. The trial courts register for this action recites that at a case management conference held on April 28, 2009, defendant Witt to be requesting to be dismissed. Because the registers also shows that plaintiff was present, it is reasonable to presume that plaintiff knew that Witts request would be imminent.

[4] Witt attaches to his brief a September 2009 letter from the overnight courier purporting to show that Witts application was accepted and signed for at Napa State at 12:11 p.m. on April 29, 2009, the day after it was dispatched by Witt. As an attachment to his brief, plaintiff appends a copy of an internal administrative receipt showing that Napa State staff delivered Witts application to plaintiff on May 1. Attached to plaintiffs other opening brief are copies of documents purporting to show that plaintiff did not receive Black Pantss papers until May 8. For the same reason that we pay no heed to plaintiffs subsequent attempt to file an amended complaint, we take no cognizance of any of these documents. (Reserve Insurance Co. v. Pisciotta, supra, 30 Cal.3d 800, 813; 9 Witkin, Cal. Procedure, supra, Appeal,  334, p. 385.)