Opinion
G062636
04-25-2024
ZVI KRIPLE, Plaintiff and Appellant, v. ED ALLRED et al., Defendants and Respondents.
Zvi Kriple, in pro. per., for Plaintiff and Appellant. Couto &Associates and Drew J. Couto; Law Office of Leif Kleven and Leif H. Kleven for Defendants and Respondents.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 30-2018-00998884 Glenn R. Salter and Sheila Recio, Judges. Affirmed.
Zvi Kriple, in pro. per., for Plaintiff and Appellant.
Couto &Associates and Drew J. Couto; Law Office of Leif Kleven and Leif H. Kleven for Defendants and Respondents.
OPINION
O'LEARY, P. J.
Zvi Kriple appeals from a judgment after a bench trial where the trial court granted a motion for judgment in favor of Los Alamitos Race Course (LARC) and Ed Allred (collectively referred to as defendants). Kriple argues the following: the court erred by denying his motion for summary judgment; the court erred by sustaining defendant's demurrer to his third amended complaint without leave to amend; the court denied Kriple his right to a jury trial; and the court erred by preventing him from calling a witness. Kriple has not carried his burden of establishing prejudicial error requiring reversal. We affirm the judgment.
FACTS
Much of Kriple's factual statement is irrelevant to the limited legal issues on appeal. We note proceedings in the trial court were not reported.
Suffice it to say, Kriple trained horses. A trainer has to submit a stall application to obtain a stall to race. Kriple last trained horses at LARC sometime prior to 2005. In 2008, Kriple was convicted of animal cruelty. In 2009, the California Horse Racing Board suspended Kriple's training license. Kriple did not submit a stall application or race/stakes entry form to LARC in 2015, 2016, 2017, or 2018.
In 2018, Kriple filed a complaint in propria persona against LARC and Allred, owner and chairman of LARC, for an intentional tort, i.e., intentional interference with contractual relations, and general negligence, i.e., negligent interference with prospective economic relations. Kriple alleged defendants wrongfully denied him the opportunity to enter his horse in a race on August 29, 2017, in breach of "an implied contract" he had entered into with another horse trainer, Duff Shidaker, based on his race and nationality. The trial court sustained defendants' demurrer with leave to amend.
In his complaint, Kriple states Duff's last name is "Shaldecker." Duff's last name is "Shidaker."
Kriple filed a first amended complaint. The trial court sustained defendants' demurrer with leave to amend and encouraged Kriple to seek counsel.
On August 5, 2019, after chambers work, the trial court issued a minute order advising Kriple to post $150 in jury fees and that failure to pay the fees would result in waiving a jury trial. The order was served on Kriple by both mail and e-mail.
Kriple eventually filed a second amended complaint. Defendants filed an answer.
Kriple filed a motion for summary judgment or, alternatively, summary adjudication, and separate statement. He supported his motion with two declarations and three requests for judicial notice.
Defendants filed their own motion for summary judgment or, alternatively, summary adjudication, and separate statement. Defendants supported their motion with declarations from Shidaker and their attorney, voluminous exhibits, and a request for judicial notice. The trial court accepted the parties' stipulation to consolidate the motions. Both Kriple and defendants filed opposition and replies. The trial court heard argument on the motions and took the matter under submission.
Later, by minute order, the trial court, Judge Glenn R. Salter, denied both Kriple's and defendants' motion for summary judgment/adjudication. As to Kriple's motion, the trial court reasoned it suffered from procedural defects because he failed to produce admissible evidence to support the elements of his causes of action. The court stated it tried to "push past the procedural errors and focus on the merits of the case" and cited to Shidaker's declaration as it related to the "intentional" interference with contractual relations cause of action. But the court ultimately opined, "[T]he procedural errors committed by both cannot simply be ignored." The court concluded, "The court recognizes that [Kriple] is self-represented. But the rules require the court to hold him to the same standards that apply to attorneys."
About one month before trial, Kriple filed a motion for leave to file a third amended complaint alleging four new employment-related claims. Over defendants' opposition, the trial court granted Kriple's motion and continued trial to March 13, 2023.
Kriple filed a third amended complaint. He added four causes of action, for unfair business practices (Bus. &Prof. Code, § 17200) (fifth and sixth causes of action), failure to pay overtime compensation (Lab. Code, § 200 et seq.; Cal. Code Regs., tit. 8, § 11090 ), and failure to provide properly itemized wage statements (Lab. Code, § 226).
Kriple did not name Allred as a defendant in paragraph 1 of the third amended complaint. However, he did refer to Allred as a defendant throughout the complaint.
We note California Code of Regulations, title 8, section 11090 governs wages and other issues related to the transportation industry. In his third amended complaint, Kriple refers to drivers several times.
Defendants filed a demurrer. As to the fifth through eighth causes of action, defendants demurred on the following grounds: insufficient facts to state a cause of action, statute of limitations, res judicata, and lack of jurisdiction. They also filed a request for judicial notice of various documents, including records from Kriple v. Santa Anita Race Track, et al., Los Angeles Superior Court case No. 21STCV25057 (the Los Angeles action). In the Los Angeles action, Kriple sued LARC and others, including Doe defendants, for employment-related claims. Four months before Kriple filed his third amended complaint, the trial court in the Los Angeles action granted defendants' motion for judgment on the pleadings (Code Civ. Proc., § 438, all further statutory references are to the Code of Civil Procedure) without prejudice because Kriple presented "no facts whatsoever" of an employment relationship.
The trial court overruled the demurrer in part and sustained it in part. The court overruled the demurrer as to Kriple's first and second causes of action. The court stated the third amended complaint did not include third and fourth causes of action and thus it did not need to rule. As to the fifth through eighth causes of action, the court sustained the demurrer without leave to amend because the claims were barred by the doctrine of res judicata. After granting judicial notice of documents from Kriple's Los Angeles action, the court explained res judicata prevented him from filing the claims that were dismissed in one county in another county.
Later, the trial court denied Kriple's motion for reconsideration. Defendants filed an answer to the third amended complaint.
The case was reassigned to Judge Sheila Recio. The trial court continued the jury trial to March 13, 2023.
Defendants filed an objection to a jury trial. Defendants stated that at a March 2022 issue conference, Kriple stated he did not want a jury trial, and defendants agreed. Defendants' counsel sent Kriple an e-mail addressing this and other issues. Kriple responded to the e-mail and did not dispute the agreement to waive the jury trial. Defendants explained that a week before trial, they e-mailed Kriple a stipulation for bench trial. In his declaration, defendants' counsel stated he prepared the stipulation because the superior court's online docket listed the matter as a jury trial. Kriple replied via e-mail, "Sorry but I will go as plan[ned] with a jury trial." Defendants stated that from March 2022 to March 2023 Kriple did not indicate he wanted a jury trial, did not pay the jury fee deposit, and did not exchange the required documents.
During a hearing, the trial court stated Kriple previously waived a jury trial. The court continued the bench trial to April 3, 2023.
At the bench trial, both sides answered ready. Kriple stated he subpoenaed witnesses but was unsure whether they would appear. He stated he intended to call Alan Balch, Ron Church, Shidaker, himself, and another witness whose name he could not remember. The court ordered Kriple to e-mail a witness list to defendants and include copies of subpoenas.
The following day, both sides answered ready. Kriple, Church, and Balch testified. Kriple advised the court he subpoenaed Shidaker but he did not appear. When Kriple produced a subpoena, defendants' counsel noted the appearance date was for three weeks earlier. Kriple stated that "there was another subpoena which was disregarded, but he does not have a copy." Kriple resumed testifying and rested.
Defendants moved for judgment pursuant to section 631.8. The trial court granted the motion (on the remaining first and second causes of action) because Kriple offered no evidence defendants "knew, or should have known, that any relationship would be disrupted" and they did not intend to disrupt any relationship.
Kriple appealed from the trial court's minute order. On July 3, 2023, the trial court entered judgment. We filed an order stating we deem Kriple's appeal as having been taken from the July 3, 2023, judgment. (Cal. Rules of Court, rule 8.104(d)(2).)
DISCUSSION
We remind Kriple that in propria persona litigants are not exempt from procedural rules in the trial court or on appeal. An appellant has the burden of overcoming a presumption that the judgment is correct by affirmatively demonstrating prejudicial error. (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1207.) These rules of appellate procedure apply to plaintiffs even though they elected to represent themselves on appeal. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) The law affords in propria persona litigants "'the same, but no greater consideration than other litigants and attorneys. [Citation.]' [Citation.]" (Ibid.) We turn now to his contentions.
I. Motion for Summary Judgment
Kriple asserts the trial court erroneously denied his motion for summary judgment. We disagree.
Summary judgment is granted when a moving party establishes the right to entry of judgment as a matter of law. (§ 437c, subd. (c).) A plaintiff seeking summary judgment bears the burden of producing admissible evidence on each element of a cause of action entitling it to judgment. (§ 437c, subd. (p)(1); People ex rel. City of Dana Point v. Holistic Health (2013) 213 Cal.App.4th 1016, 1024.) This means that a plaintiff that would bear the burden of proof by a preponderance of evidence at trial "must present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851.) A plaintiff must produce evidence-affidavits, declarations, admissions, answers to interrogatories, depositions, or judicially noticed matters-establishing its right to the relief sought. (§ 437c, subd. (b)(1).) Only then does the burden shift to the defendant. (§ 437c, subd. (p)(1).) We independently review the evidence to determine whether the plaintiff produced evidence on each element of his causes of action. (Branco v. Kearny Moto Park, Inc. (1995) 37 Cal.App.4th 184, 189.)
Here, Kriple filed causes of action for intentional interference with contractual relations and negligent interference with prospective economic relations. An element of both causes of action is an economic relationship between plaintiff and a third party. (Pacific Gas &Electric Co. v. Bear Stearns &Co. (1990) 50 Cal.3d 1118, 1126 [intentional interference requires contract between plaintiff and third party]; Redfearn v. Trader Joe's Co. (2018) 20 Cal.App.5th 989, 1005 [negligent interference requires economic relationship between plaintiff and third party], overruled on another ground in Ixchel Pharma, LLC v. Biogen, Inc. (2020) 9 Cal.5th 1130, 1148.)
Kriple states the applicable jury instruction is CACI No. 400, "Negligence." The applicable jury instructions are in fact CACI No. 2201, "Intentional Interference With Contractual Relations-Essential Factual Elements," and CACI No. 2204, "Negligent Interference With Prospective Economic Relations."
The theory of Kriple's causes of action seems to be that defendants interfered in an economic relationship between him and Shidaker and "others." In his separate statement, Kriple makes no mention of any economic relationship between him and a third party. And in his own declarations, he makes no mention of any economic relationship between him and a third party. In fact, defendants submitted Shidaker's declaration in support of their motion for summary judgment, in which Shidaker stated he did not have any agreement with Kriple to train horses. Kriple did not present any evidence to contradict Shidaker's assertion. Indeed, Kriple essentially admits there was a material issue of disputed fact when arguing the trial court violated his constitutional rights by preventing him from calling Shidaker as a witness at trial, which we address below. The lack of evidence of an economic relationship between Kriple and a third party supports the trial court's denial of Kriple's motion for summary judgment.
Kriple criticizes the trial court for only mentioning his cause of action for intentional interference and not negligent interference. It is clear from the court's comments that it concluded Kriple failed to produce any evidence to support his motion. The court was simply musing that if it "push[ed] past" the procedural defects Kriple would also lose on the merits because defendants' evidence, i.e., Shidaker's testimony, refuted his contentions. The court's comments regarding Shidaker's testimony were applicable to both causes of action. Therefore, the court properly denied Kriple's motion for summary judgment because he produced no evidence on each element of his causes of action.
II. Demurrer to Third Amended Complaint
Kriple argues the trial court erroneously sustained defendants' demurrer to his fifth, sixth, seventh, and eighth causes of action without leave to amend. We conclude the court properly sustained the demurrer without leave to amend but for a different reason than the one relied on by the court.
"'The doctrine of res judicata rests upon the ground that the party to be affected, or some other with whom he is in privity, has litigated, or had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction, and should not be permitted to litigate it again to the harassment and vexation of his opponent....' [Citation.] The doctrine applies when 1) the issues decided in the prior adjudication are identical with those presented in the later action; 2) there was a final judgment on the merits in the prior action; and 3) the party against whom the plea is raised was a party or was in privity with a party to the prior adjudication. [Citation.] . . . [Citation.] To determine whether to sustain a demurrer on res judicata grounds, judicial notice may be taken of a prior judgment and other court records. [Citations.]" (Citizens for Open Access etc. Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1065.)
Here, the trial court sustained defendants' demurrer to Kriple's fifth, sixth, seventh, and eighth causes of action based on the doctrine of res judicata. That was error.
Kriple alleged employment related claims in both the Los Angeles action and the instant action against defendants. The trial court in the Los Angeles action granted defendants' motion for judgment on the pleadings with respect to Kriple's entire complaint without prejudice. As a general rule, a dismissal without prejudice is not an adjudication on the merits and has no res judicata effect. (Shuffer v. Board of Trustees (1977) 67 Cal.App.3d 208, 216; 6 Witkin, Cal. Procedure (6th ed. 2021) Proceedings Without Trial, § 355, p. 853.) The record before us does not demonstrate the trial court entered a final judgment in the Los Angeles action and thus, the doctrine of res judicata is not applicable. That does not end our inquiry however.
"'"We will affirm if there is any ground on which the demurrer can properly be sustained, whether or not the trial court relied on proper grounds or the defendant asserted a proper ground in the trial court proceedings."' [Citation.] It is the trial court's ruling we review, not its reasoning or rationale. [Citation.]" (Kahan v. City of Richmond (2019) 35 Cal.App.5th 721, 730.) We must accept the facts pleaded as true and give the complaint a reasonable interpretation in determining whether the complaint states facts sufficient to constitute a cause of action. (Mathews v. Becerra (2019) 8 Cal.5th 756, 761-762.) At the same time, a plaintiff must "'"set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action."'" (Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099.) We do not assume the truth of the plaintiff's contentions or conclusions of law and fact. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126 (Zelig).)
The theory of Kriple's allegations in each of his complaints, including his third amended complaint, was that defendants interfered with an economic relationship between him and a third party, i.e., Shidaker. Kriple repeatedly alleged defendants improperly denied him access to LARC because of his race and nationality. Four months after the Los Angeles trial court dismissed his complaint, Kriple added his fifth through eighth causes of action in this case. In these causes of action, he switched gears. The theory of each of these causes of action was that Kriple was defendants' employee (he was not an independent contractor) and defendants improperly withheld wages and other benefits.
Although the trial court erroneously sustained the demurrer without leave to amend based on the doctrine of res judicata, the fifth through eighth causes of action were flawed for another reason. Kriple's allegations in these causes of action are rambling, vague, and conclusory. In each cause of action, he refers to himself as an employee or refers to his employment by defendants. But he failed to allege any facts to support his claims. His complaint is void of any facts he had an employment contract with defendants, worked for defendants during a specified time period, or was paid by defendants on specified dates for services performed. We do not assume the truth of Kriple's conclusion of law he was an employee of defendants without facts to support that conclusion. (Zelig, supra, 27 Cal.4th at p. 1126.) We have reviewed all of his complaints thoroughly. Based on an absence of any facts demonstrating an employment relationship, we conclude it is not reasonably possible he can cure the defects by amendment.
III. Jury Trial
Kriple argues the trial court erred by denying him a jury trial. Again, we disagree.
Section 631, subdivision (a), codifies the constitutional right to a jury trial in civil cases as set forth in California Constitution, article I, section 16. Section 631, subdivision (b), requires a party demanding a jury trial to pay a nonrefundable fee of $150, subject to time limitations in subdivision (c) of that section. Section 631, subdivision (g), authorizes a trial court to grant relief from a waiver of the right to a jury trial.
TriCoast Builders, Inc. v. Fonnegra (2024) 15 Cal.5th 766, is not implicated here because Kriple did not request relief from default.
Here, Kriple states he filed at least four case management statements, all requesting a jury trial. True. But after he filed three of them, the trial court advised Kriple that he must deposit the jury fee or risk waiving a jury trial. On appeal, Kriple admits he did not deposit the $150 jury fee. The trial court satisfied its obligation to ensure that written instructions to an in propria persona litigant were clear and understandable. (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284.) Thus, Kriple waived his right to a jury trial. He asserts, however, the trial court should have granted him relief pursuant to section 631, subdivision (g).
A party may seek relief from a jury trial waiver by written or oral motion. (Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2023) §2:313, p. 2-70.) The party must clearly state the grounds for relief and support the request with a sufficient evidentiary showing. (Ibid.)
The record does not establish Kriple requested relief from his jury trial waiver. In his reply brief, he states, "It appears that the request for relief was made by [Kriple] because the record before this court shows the respondent actually filing a written opposition." (Italics added.) As Kriple was the in propria persona litigant, he should know whether he sought relief. He either did or he did not-he should not have to rely on appearances. Additionally, defendants filed their objection to a jury trial because Kriple would not sign the stipulation, not because he requested relief from waiver. The proceedings were not reported. The minute order from the day in question does not indicate Kriple requested relief from waiver. Therefore, Kriple has not established his right to a jury trial was violated.
IV. Witness Testimony
Kriple contends his constitutional rights were violated because Shidaker did not testify. Kriple has not established the court erred.
Section 1993, subdivision (a)(2), provides the procedures for a trial court to issue a "'failure to appear' notice" before issuing an arrest warrant. As a prerequisite, a party must provide the court with "proof of the service of the subpoena." (§ 1993, subd. (a)(1).)
Before trial started, Kriple stated he had five witnesses-himself, Balch, Shidaker, Church, and another witness who was unidentified. The trial court ordered Kriple to e-mail defendants' counsel a list of his witnesses and include a copy of the subpoenas. The court informed him that failure to do so may preclude the witnesses from being allowed to testify.
The next day at trial, Kriple, Church, and Balch testified. Kriple informed the court Shidaker was not present. The court requested Kriple show the subpoena to defendants' counsel. Defendants' counsel advised the court the subpoena was for the wrong day. Kriple stated there was another subpoena, but he did not have it. After Kriple provided additional testimony, he rested. The court granted defendants' motion for judgment. The next day, Kriple filed a proof of service for Shidaker.
At trial, Kriple did not produce any document demonstrating a subpoena had been issued to Shidaker compelling his attendance at trial. Absent a showing that a valid subpoena had been served on Shidaker, the trial court did not have any lawful grounds to issue a failure to appear notice or arrest warrant for the disobedience of a subpoena.
Kriple asserts the trial court failed to review the court file to determine whether Shidaker had been served with a subpoena for trial. It does not appear that would have been helpful because Kriple had not filed the proof of service. Additionally, an in propria persona litigant is entitled to no greater consideration than other litigants and attorneys. An in propria persona litigant, like attorneys, must follow the rules of procedure. (Nwosu v. Uba, supra, 122 Cal.App.4th at p. 1247.)
Kriple also claims the trial court should have "postponed [the trial] until the witness was brought into court." But it was incumbent on Kriple to adequately prepare for trial. Had Kriple needed more time to secure Shidaker's testimony, he should have requested a continuance. He did not. Instead, he rested his case. Kriple cannot now complain when he did not adequately prepare or request more time. (Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1685-1686 [litigant's inaction before trial court may be deemed an acquiesce to later asserted error and loses the right to attack it].) Thus, Kriple's constitutional rights were not violated.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
WE CONCUR: BEDSWORTH, J. GOODING, J.