Gribovszki v.
Filed 7/11/13 Gribovszki v. Stanford University 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opinion has not been certified for publication or ordered published for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
THOMAS GRIBOVSZKI,
Plaintiff and
Appellant,
v.
STANFORD
UNIVERSITY,
Defendant and
Respondent.
H037663
(Santa Clara
County
Super. Ct.
No. CV110340)
Thomas
Gribovszki, proceeding in pro per, appeals a judgment entered following the
trial court’s denial of his motion for leave to amend and dismissal of his
complaint against defendant Stanford University
(Stanford) with prejudice.
Statement of the Facts and Case
This case
is based on plaintiff’s enrollment in 1996, and subsequent removal in 2002 for
failing to meet minimum academic progress from Stanford’s PhD program in the
Department of Aeronautics and Astronautics.
Plaintiff
brought his first two actions against Stanford in 2006, alleging he was
entitled to a Master’s Degree. The trial
court dismissed these actions, and plaintiff did not appeal.
Plaintiff brought the current
action in 2008 against Stanford, its Department of Aeronautics and
Astronautics, Brian Cantwell, and 10 other individuals.
Defendants
demurred to plaintiff’s initial complaint.
The court sustained the demurrer with leave to amend.
Plaintiff
filed a first amended complaint in
December 2008, naming Stanford as the sole defendant. In it, plaintiff alleged arbitrary and
capricious stonewalling, delay and denial of master degree application, breach
of contract, business tort, and other causes.
Stanford
demurred to the first amended complaint, joined by the other defendants named
in the initial 2008 complaint. Following
a hearing in March 2009, the trial court sustained the demurrer to the first
amended complaint, without leave to amend, on the ground that the action was
barred by the doctrine of res judicata.
The court entered a judgment of dismissal, and plaintiff appealed.
In November
2010, this court affirmed the trial court as to six of the seven causes of
action in the first amended complaint.
Specifically, the first six causes of action of plaintiff’s first
amended complaint challenged Stanford’s denial of a master’s degree. The doctrine of res judicata bared those
causes of action, because plaintiff’s degree conferral claims were the subject
of a prior judgment on the merits.
However, the seventh cause of action of Plaintiff’s first amended
complaint (“business tort—unfair business practicesâ€) challenged Stanford’s
withholding of student transcripts.
Because plaintiff did not assert this claim in his prior actions, it was
not barred by the doctrine of res judicata.
This court stated: “Upon independent
review, we conclude that res judicata bars all of the claims asserted in
this action, except the seventh cause of action alleging ‘business tort.’ Because the pleading defects in that cause of
action may be curable, we reverse and remand, directing the trial court to give
plaintiff an opportunity to amend as to the seventh cause of action only.â€
Plaintiff filed a petition for
rehearing that this court denied in December 2010, and in February 2011, the
California Supreme Court denied plaintiff’s petition for review. On February
18, 2011, this court issued the remittitur, certifying that the
opinion had become final.
In July 2011, plaintiff filed a
motion for leave to amend the complaint.
In it, he requested that he be allowed to “re-include†the causes of
action as to which the trial court had previously sustained defendant’s
demurrer without leave to amend, and this court had affirmed the trial court’s
order. Following a hearing in September
2011, the trial court denied plaintiff’s motion and dismissed the action with
prejudice. The trial court concluded
that plaintiff’s requested motion to “re-include†causes of action was in
direct contravention of this court’s opinion in the prior appeal. In addition, the trial court found plaintiff
failed to file an amended complaint within 30 days of the remittitur as
required by Code of Civil Procedure section 472b, plaintiff did not comply with
the California Rules of Court, Rule 3.1324, subdivision (a), and plaintiff
failed to timely serve the motion on defendant.
Plaintiff filed a notice of appeal.
Discussion
In this appeal, plaintiff attempts to
reassert the claims he made in his first appeal, arguing again that his first
six causes of action in the first amended complaint are not barred by res
judicata, because they were not adjudicated on the merits.
The standard of review for an order
denying leave to amend is abuse of discretion.
(Branick v.
235, 242.) Therefore, “there is a
presumption in favor of the actions of the trial court to the effect that its
discretion was properly exercised, and the burden and responsibility is on the
appellant to affirmatively establish an abuse of that discretion.†(Mesler
v. Bragg Management Co. (1990) 219 Cal.App.3d 983, 991.)
The trial court did not abuse its
discretion in denying Plaintiff’s motion for leave to amend. Plaintiff’s requested amendment of his first
amended complaint was to re-allege the first six causes of action that were
previously dismissed on the basis of res judicata. This proposal was in direct contravention of
this court’s opinion in the previous appeal, and did not comply with the
limited remand. The trial court’s denial
of plaintiff’s motion because the proposed amendment did not comply with this
court’s opinion was entirely proper, and not an abuse of discretion. (See In
re N.M. (2008) 161 Cal.App.4th 253,
264.)
Plaintiff’s motion was properly
denied for the additional reason that he did not file a proposed amended
complaint within 30 days of issuance of the remittitur, as required by Code of
Civil Procedure section 472b.
name="_ftnref1" title="">[1] Here, the clerk of this court issued the
remittitur and sent notice to the parties on February 18, 2011. Plaintiff filed his motion to amend his
complaint, without an accompanying proposed amendment, on July 13, 2011. The trial court’s decision to deny
plaintiff’s motion was proper based on plaintiff’s failure to comply with the
requirements of Code of Civil Procedure section 472b.
Finally, the trial court did not
abuse its discretion in denying plaintiff’s motion on the ground that plaintiff
violated California Rules of Court Rule No. 3.1324(a), by not attaching a copy
of the proposed amended complaint to his motion and not identifying the page,
paragraph and line number on the complaint where the amendments could be
found.
Finally, despite the trial court’s
admonishment to do so, and Stanford’s repeated requests, plaintiff did not
timely serve Stanford with the motion.
This was a violation of Code of Civil Procedure sections 1005, which
requires moving papers to be filed and served at least 16 court days before the
date of hearing, and 1010, which requires notices of motions and motions to be
served on the party or his or her attorney, and provided the trial court
additional grounds for denying plaintiff’s motion.
We find no abuse of discretion in
this case. The trial court’s decision to
deny plaintiff’s motion for leave to amend was based on numerous legitimate
grounds.
Disposition
The
judgment is affirmed.
______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
PREMO, J.
____________________________________
ELIA,
J.
provides: “When an order sustaining a demurrer without leave to amend is
reversed or otherwise remanded by any order issued by a reviewing court, any
amended complaint shall be filed within
30 days after the clerk of the reviewing court mails notice of the issuance of
the remittitur.†(Emphasis added.)
