Opinion
B326987
10-30-2023
BOBBY GOSSAI, Plaintiff and Appellant, v. RAY GOLBARI, et al.. Defendants and Respondents.
Bobby Gossai, in pro. per., for Plaintiff and Appellant. Law Offices of Saul Reiss, Saul Reiss and Fay Pugh for Defendants and Respondents.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County No. YC071918, Gary Y. Tanaka, Judge. Affirmed.
Bobby Gossai, in pro. per., for Plaintiff and Appellant.
Law Offices of Saul Reiss, Saul Reiss and Fay Pugh for Defendants and Respondents.
ROTHSCHILD, P. J.
In March 2017, Bobby Gossai (Gossai) sued Ray Golbari, Golbari Properties, and United Capital Investment (collectively, Golbari) in connection with a 2013 real estate transaction. (See Gossai v. Golbari (May 1, 2019, B289494) [nonpub. opn.] (Gossai).) Gossai represented himself throughout the action, which involved years of litigation over the sufficiency of the pleadings. Eventually, the case reached the pretrial phase, and the trial court scheduled a final status conference for August 25, 2022.
Although Gossai filed a motion for summary judgment three days prior to the conference, he failed to appear at the August 25 hearing. The court therefore continued the final status conference to October 3, 2022, and issued an order to show cause regarding dismissal for Gossai's failure to appear, also set for hearing on October 3. Prior to the hearing, Gossai filed a written response to the order to show cause indicating that he did not intend to appear on October 3 due to a medical condition.
The court therefore conducted the October 3, 2022 hearing in Gossai's absence. It denied Gossai's summary judgment motion based in part on his failure to file a supporting separate statement of undisputed material facts. The court then dismissed the action without prejudice pursuant to Code of Civil Procedure section 575.2, which authorizes the promulgation of local superior court rules that permit a judge to dismiss an action in response to a party's failure to comply with those rules. (See § 575.2, subd. (a).)
All subsequent unspecified statutory references are to the Code of Civil Procedure.
Gossai now asks us to reverse the trial court's entry of judgment in favor of Golbari, urging that the court erred in denying him summary judgment and abused its discretion in dismissing his case. We conclude, however, that Gossai's failure to file a separate statement justified the court's decision to deny his summary judgment motion, and that the court acted within its discretion in dismissing Gossai's action without prejudice following his repeated failure to appear at the scheduled final status conferences. We therefore affirm.
FACTUAL SUMMARY AND PROCEDURAL HISTORY
We summarize here only the facts and procedural history relevant to our resolution of this appeal.
On March 8, 2017, Gossai-representing himself-filed a complaint against Golbari alleging that Golbari had failed to pay for services Gossai rendered in negotiating a $1.4 million real estate deal. (Gossai, supra, B289494.) Gossai alleged causes of action for breach of contract, intentional and negligent misrepresentation, fraud, and quantum meruit, among others. (Ibid.)
Over the next several years, the parties litigated the sufficiency of the pleadings. Gossai filed four amended complaints in total, and Golbari demurred to each one. Golbari also moved to strike portions of the second, third, and fourth amended complaints.
Although the trial court sustained Golbari's first two demurrers with leave to amend, the court sustained Golbari's demurrer to the second amended complaint without leave because it determined that the complaint constituted a sham pleading. (Gossai I, supra, B289494.) We reversed the trial court's order on appeal, concluding that the sham pleading doctrine did not apply because Gossai had provided a plausible explanation for the inconsistencies between his complaints. (Ibid.)
On remand, the trial court sustained Golbari's demurrer to Gossai's second amended complaint with leave to amend on grounds unrelated to the sham pleading doctrine. Gossai then filed a third amended complaint, in response to which Golbari again demurred and moved to strike.
On August 24, 2020-with Golbari's demurrer and motion to strike pending-Gossai attempted to file a fourth amended complaint. Nothing in the record, however, indicates that Gossai sought leave from the court to do so, and at the subsequent October 21, 2020 case management conference, the court struck the fourth amended complaint from the docket. The court then continued the case management conference to December 10, 2020, and set the hearing on Golbari's demurrer and motion to strike the third amended complaint for that same date.
Gossai failed to appear at the December 10, 2020 hearing. In Gossai's absence, the trial court sustained Golbari's demurrer to the third amended complaint with leave to amend. It also ordered that Gossai combine his second cause of action (promise made with no intention to perform), third cause of action (intentional misrepresentation), and fifth cause of action (fraud) into "a single cause of action for fraud." (Capitalization omitted.) In addition, the court issued an "order to show cause re[garding] dismissal for failure to prosecute," setting the hearing on the order for March 4, 2021. (Capitalization omitted.)
Prior to the March 4 hearing, Gossai filed his fourth amended complaint. Golbari again demurred and moved to strike certain of the complaint's allegations. When Gossai appeared on March 4, the court discharged the order to show cause and set a hearing on the demurrer and motion to strike for August 12, 2021.
At the August 12 hearing, the court heard argument from both parties on Golbari's demurrer and motion to strike and took the matter under submission. Later that day, the court issued a written ruling "not[ing] that [Gossai had] violated [its] order sustaining the demurrer to the third amended complaint" by failing to combine his second, third, and fifth causes of action into "one cause of action for intentional fraud." (Capitalization omitted.) Notwithstanding Gossai's violation of the court's order, the court overruled Golbari's demurrer to the fourth amended complaint and denied his motion to strike. The court also set a final status conference for July 6, which the court subsequently continued to July 19, 2022. The court's minute order memorializing the August 12 hearing advised the parties that "the purpose of the [final status conference] is to verify that the parties/counsel are completely ready to proceed with trial," and they therefore "must . . . be prepared to discuss all trial related issues" at the conference. The order further admonished the parties that "[t]he court has discretion to require any party/counsel who fails or refuses to comply with this standing order to show cause why the court should not impose sanctions." (Capitalization omitted.)
Gossai appeared at the July 19, 2022 final status conference. But during the hearing, he indicated that his defibrillator had malfunctioned, and paramedics transported him to the hospital. The court therefore vacated the existing July 26, 2022 trial date and continued the final status conference to August 25, 2022.
On August 22, 2022-three days prior to the rescheduled final status conference-Gossai filed a motion for summary judgment. He failed, however, to file any separate statement of undisputed material facts in support of the motion. Golbari opposed the motion, pointing to Gossai's failure to file the required separate statement and his failure to provide the requisite notice for the motion.
Gossai then failed to appear at the August 25, 2022 final status conference. The court therefore issued an "order to show cause re[garding] dismissal for failure to prosecute and for failure to appear" at the August 25 hearing. (Capitalization omitted.) It scheduled the hearing on the order to show cause, as well as the rescheduled final status conference, for October 3, 2022.
On September 13, 2022, Gossai filed a reply in support of his summary judgment motion in which he conceded that the motion was procedurally defective. He nonetheless urged the court to grant him summary judgment because his "constitutional rights [were] at stake" and the motion's procedural defects "should not hinder natural justice or right."
Also on September 13, 2022, Gossai filed a "response to the court's order to show cause" and "notice of waiver [of] appearance." (Capitalization omitted.) In the filing, Gossai explained that he had been hospitalized twice following the July 19, 2022 final status conference, and that he had failed to appear at the August 25, 2022 rescheduled final status conference because he had a conflicting medical appointment that day and had been "advised by his doctors not to engage in any stressful situation for at least 3-6 months."He noted further that he believed the August 25 conference "was moot or procedural," and that he "fe[lt] that the appeal court remittitur and the overruling on defendants' demurrer and motion to strike the fourth amended complaint and the evidence attached to the complaint and . . . those mentioned in the joint witness list [were] enough facts for [the] court to make a just and informed decision on the matter/issue before it." (Capitalization omitted.) Finally, Gossai stated that, "[b]ased upon the doctors' advice," he "waived his rights to appear and avoid oral arguments on October 3." (Boldface omitted.)
Gossai appended to his filing what appears to be a printout from his medical records reflecting his admission to the hospital from August 11 through August 14, 2022. The printout also indicates that he had a telephonic medical appointment on the date of the August 25, 2022 final status conference.
Gossai failed to appear at the October 3, 2022 hearing. The trial court denied summary judgment due to Gossai's failure to provide adequate notice for the motion and his failure to submit a supporting separate statement. The court then dismissed the case without prejudice "pursuant to . . . section 575.2." The court entered judgment in favor of Golbari on November 3, 2022.
Gossai has not provided us with transcripts of any of the proceedings before the trial court. In reviewing his arguments on appeal, we therefore are limited to examining the parties' filings and the trial court's written rulings.
We are not persuaded by Golbari's contention that Gossai's notice of appeal is "defective" because he purportedly checked the wrong box on the form notice identifying the statute authorizing his appeal. The face of the notice makes reasonably clear that Gossai intended to appeal from the judgment dismissing his action, and Golbari does not contend that the notice misled or otherwise prejudiced him. (See International Assn. of Firefighters, Local 230 v. City of San Jose (2011) 195 Cal.App.4th 1179, 1194, fn. 4 ["' "[i]t is and has been the law of this state that notices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced"' "].)
DISCUSSION
Gossai argues that the trial court erred by (1) denying his summary judgment motion on procedural grounds, and (2) dismissing his action pursuant to section 575.2. We reject both contentions and therefore affirm the judgment.
A. The Trial Court Properly Denied Summary Judgment
We disagree with Gossai's contention that we must reverse the trial court's order denying his summary judgment motion.
"A denial of a motion for summary judgment may be reviewed by post-judgment appeal in an appropriate case." (Bourgi v. West Covina Motors, Inc. (2008) 166 Cal.App.4th 1649, 1657, as modified on denial of rehg. Oct. 23, 2008 [noting conflicting authorities on the issue, but permitting de novo review of an order denying summary judgment that involved party's key trial defense].) Even assuming this is such an "appropriate case," Gossai is not entitled to relief.
Section 437c, subdivision (b)(1) provides, in relevant part, that a summary judgment motion's "supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed.... The failure to comply with this requirement of a separate statement may in the court's discretion constitute a sufficient ground for denying the motion." (§ 437c, subd. (b)(1).)
Gossai does not dispute that he failed to file a separate statement in support of his motion for summary judgment. Instead, he urges that the trial court should have overlooked this procedural defect because Golbari engaged in an "abuse of process" by filing "excessive demurrers and motions to strike" in response to the five iterations of the complaint. Gossai, however, offers no authority supporting the proposition that a party engages in abuse of process by challenging each new pleading a plaintiff files. (Contra Berg &Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1035-1035 ["when a plaintiff files an amended pleading in response to an order sustaining a prior demurrer to a cause of action with leave to amend, the amended cause of action is treated as a new pleading and a defendant is free to respond to it by demurrer on any ground"].) Nor does Gossai explain why Golbari's purported abuse of the demurrer process requires that we reverse the court's order denying his motion at the summary judgment stage. Accordingly, we conclude that the trial court properly denied Gossai's motion for summary judgment.
We premise our conclusion solely on Gossai's failure to file a separate statement. As a result, we need not address Gossai's arguments that (1) the trial court erred in denying his summary judgment motion for failure to provide proper notice, and (2) the court should have continued the hearing on the motion sua sponte to afford Golbari adequate notice.
B. The Court Did Not Abuse Its Discretion in Dismissing the Action Pursuant to Section 575.2
We also are unpersuaded that the trial court abused its discretion by dismissing Gossai's action pursuant to section 575.2. (See Osborne v. Todd Farm Service (2016) 247 Cal.App.4th 43, 54 (Osborne) [" 'our task is not to supplant our own judgment for that of the trial court, but to ascertain whether the trial court abused its discretion by imposing a terminating sanction' "].)
Section 575.2 provides, in relevant part, that "[l]ocal rules promulgated pursuant to [s]ection 575.1 may provide that if . . . a party . . . in pro se . . . fails to comply with any of the requirements thereof, the court . . . on its own motion may . . . dismiss the action or proceeding" so long as the party first is provided "prior notice . . . and an opportunity to be heard." (§ 575.2, subd. (a).) Rule 3.10 of the Los Angeles Superior Court, Local Rules, in turn, authorizes a trial court to "impose appropriate sanctions [against a party or counsel for that party] for the failure or refusal to comply with the [civil division local] rules." (Super. Ct. L.A. County, Local Rules, rule 3.10.)
Section 575.1 sets forth certain procedures governing the drafting and adoption of local superior court rules "designed to expedite and facilitate the business of the court." (§ 575.1, subd. (a).)
Here, Gossai does not dispute that he failed repeatedly to comply with rule 3.25(f) of the Los Angeles Superior Court, Local Rules, which requires "counsel"-a defined term that includes self-represented litigants (see Super. Ct. L.A. County, Local Rules, rule 1.1(h))-to "attend a final status conference." (Id. at rule 3.25(f).) Nor does he dispute that (1) the court's August 25, 2022 order to show cause afforded him notice that the court might dismiss his action for failure to appear, (2) the court afforded him an opportunity to be heard on the issue at an October 3, 2022 hearing, and (3) he responded to the order to show cause by filing a document stating that he did not intend to appear at the October 3 hearing.
We recognize that terminating sanctions are a drastic measure. On this record, however, we cannot conclude that the court abused its discretion in dismissing Gossai's action without prejudice. (See Osborne, supra, 247 Cal.App.4th at p. 54.)
Gossai's remaining contentions do not alter our conclusion. His arguments regarding sections 583.130 and 583.410 through 583.430, as well as California Rules of Court, rule 3.1342-all of which relate to a trial court's authority to dismiss an action for failure to prosecute-are inapposite because the court dismissed Gossai's case pursuant to section 575.2.
And his insistence that "the fruit of the poisonous tree" and "invited error" doctrines compel the reinstatement of his action similarly is unpersuasive, as neither doctrine has any application here. (See People v. Navarro (2006) 138 Cal.App.4th 146, 157, fn. 6 ["[t]he fruit of the poisonous tree doctrine is an exclusionary rule that prohibits the introduction of evidence that is casually connected to an unlawful search"]; Diaz v. Professional Community Management, Inc. (2017) 16 Cal.App.5th 1190, 1203-1204 [" '[u]nder the doctrine of invited error, when a party by its own conduct induces the commission of error, it may not claim on appeal that the judgment should be reversed because of that error' "].)
Accordingly, we conclude that the trial court did not abuse its discretion in dismissing Gossai's action without prejudice.
DISPOSITION
The November 3, 2022 judgment is affirmed. Respondents are awarded their costs on appeal.
We concur: CHANEY, J., WEINGART, J.