Opinion
D074734
02-26-2020
HERMAN LORNES, Plaintiff and Appellant, v. DAN McALLISTER, as County Treasurer-Tax Collector, Defendant and Respondent.
Herman Lornes, in pro. per., for Plaintiff and Appellant. Thomas E. Montgomery, County Counsel and Laura E. Dolan, Deputy County Counsel, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2017-00041239) APPEAL from a judgment of the Superior Court of San Diego County, Timothy Taylor, Judge. Affirmed. Herman Lornes, in pro. per., for Plaintiff and Appellant. Thomas E. Montgomery, County Counsel and Laura E. Dolan, Deputy County Counsel, for Defendant and Respondent.
Plaintiff Herman Lornes, appearing in propria persona, appeals from a judgment of dismissal entered after the court sustained with leave to amend the demurrer of defendant Dan McAllister, San Diego County Treasurer-Tax Collector (hereafter County), stemming from a dispute over the payment of property taxes. Lornes on appeal argues the trial court erred because his complaint was "not defective."
As we explain, because we independently conclude Lornes's complaint was insufficient as a matter of law, and thus the demurrer was properly sustained; and because the court properly exercised its discretion when it entered the judgment of dismissal about 70 days after the court sustained the demurrer, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Lornes filed his complaint in propria persona against County, alleging a single cause of action for breach of contract related to real property. The complaint was bereft of allegations, much less properly pleaded allegations. Lornes, however, attached to his complaint a letter from the County of San Diego, Office of County Counsel, Claims and Investigations Division, alerting him of unpaid property taxes and notifying him to pay his defaulted property taxes by a specified time to prevent the sale of his real property.
We note Lornes checked the box on the civil case cover sheet accompanying his complaint stating his action against County was for fraud. However, as shown by the record, Lornes neither asserted such a cause of action, nor did he seek leave of court to do so. In any event, we note there are no allegations in his complaint to support a fraud cause of action, and thus do not address this issue on appeal. (See Cox v. Griffin (2019) 34 Cal.App.5th 440, 450 [recognizing the general rule that a party may not adopt a new theory or cause of action on appeal].)
County in early December 2017 generally and specially demurred to the complaint, arguing in part that Lornes did not provide sufficient factual allegations to support his breach of contract claim, and also failed to identify the type of contract at issue. In papers in support of its demurrer, County surmised that Lornes was accusing it of committing some sort of breach of contract as a result of the sale at auction of his real property for unpaid and delinquent property taxes.
Lornes did not timely oppose the demurrer. However, the record shows he argued in a case management conference (CMC) statement and in other documents filed with the court that his complaint was "not defective." Two weeks later at the April 13, 2018 CMC, the court granted Lornes's request to continue the CMC after he represented he wanted to hire an attorney. The court set the CMC for June 8, and continued the hearing on County's demurrer to that same day. County in response on April 13 filed an "Amended Notice of Demurrer and Demurrer . . . and Notice of Continuance of Case Manage Conference."
On June 5, Lornes filed another request to continue the CMC/demurrer hearing, again claiming he needed to hire an attorney. Lornes failed to appear at the June 8 hearing. The court sustained County's demurrer with 10 days leave to amend; and denied Lornes's request for a continuance.
In its order sustaining the demurrer with leave to amend, the court noted that this was "one of those rare cases in which it is impossible to discern from the complaint exactly what the plaintiff claims the County Assessor/Tax Collector did wrong." Exercising its discretion, the court nonetheless gave plaintiff 10 days leave to amend. In so doing, the court also noted: "While the court cannot say today that there is absolutely no viable legal theory for plaintiff, it is equally true that the defendant is left to wonder why he is being sued. Plaintiff must promptly clear this up, or face dismissal of the claim."
County filed a notice of ruling on demurrer and served it on plaintiff on June 11. Lornes failed to file an amended pleading and, on County's motion, the court on August 23 dismissed the action with prejudice.
DISCUSSION
A. The Demurrer Failed as a Matter of Law to State any Valid Cause of Action
As noted, Lornes on appeal argues the court erred in concluding his complaint failed as a matter of law to state any valid cause of action.
1. Guiding Principles
We review de novo an order sustaining a demurrer. (Intengan v. BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1052 (Intengan).) "In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed." (McBride v. Boughton (2004) 123 Cal.App.4th 379, 384-385.) "In order to prevail on appeal from an order sustaining a demurrer, the appellant must affirmatively demonstrate error. Specifically, the appellant must show that the facts pleaded are sufficient to establish every element of a cause of action and overcome all legal grounds on which the trial court sustained the demurrer. [Citation.] We will affirm the ruling if there is any ground on which the demurrer could have been properly sustained." (Intengan, at p. 1052.)
A demurrer tests the legal sufficiency of a pleading and challenges only defects on its face. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A general demurrer alleges the complaint failed to state a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) A general demurrer must be denied if the complaint states any valid cause of action. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.) Thus, "it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory." (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)
All further statutory references are to the Code of Civil Procedure.
2. Analysis
County on appeal argues the court properly sustained its demurrer to Lornes's complaint because among other defects he did not indicate whether the alleged contract was "written, oral, or implied." It also argues that, because the complaint lacked properly pleaded factual allegations, the pleading failed to state any cause of action, including for breach of contract. We agree.
To state a cause of action for breach of contract, Lornes was required to allege "(1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff." (Oasis W. Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) In addition, Lornes was required to allege whether the contract was "written, . . . oral, or [was] implied by conduct." (See § 430.10, subd. (g).)
From our independent review of the complaint, we note Lornes did not allege any properly pleaded factual allegations to satisfy the required elements for a breach of contract cause of action. Moreover, because Lornes used a Judicial Council form to file his complaint, other than the one correspondence with County he included no allegations to establish any cause of action. We thus independently conclude that, because the complaint failed as a matter of law to state any valid cause of action, the demurrer was properly sustained under section 430.10, subdivision (e).
B. The Court Properly Exercised its Discretion in Dismissing the Complaint with Prejudice
A party that is in propria persona is held to the same pleading standards as other litigants. (Stokes v. Henson (1990) 217 Cal.App.3d 187, 198.) When a demurrer is sustained with leave to amend but no amended complaint is filed, we presume that the complaint states as "strong a case as is possible," and that the appellant cannot correct the defect in his or her complaint. (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 457 (Otworth).) Therefore, a judgment of dismissal following the failure to amend must be affirmed if the complaint remains "objectionable on any ground raised by the demurrer." (Soliz v. Williams (1999) 74 Cal.App.4th 577, 585.)
Section 581, subdivision (f) provides in relevant part that a "court may dismiss the complaint as to that defendant . . . [¶] (2) . . . after a demurrer to the complaint is sustained with leave to amend, [and] the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal."
As noted, Lornes in the instant case neither amended his complaint within 10 days, as provided in the order sustaining the demurrer, nor almost 70 days after the issuance of that order. Nor did Lornes provide any reason for his failure to do so. As such, we presume his complaint stated as strong a case as possible. (See Otworth, supra, 166 Cal.App.3d at p. 457.)
We "will not disturb the exercise of a trial court's discretion unless it appears that there has been prejudicial error. The burden is on the party complaining to establish an abuse of discretion." (Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1054.) An abuse of discretion is established when the court exceeds the bounds of reason in the exercise of its discretion. (In re Walker's Estate (1963) 221 Cal.App.2d 792, 796.) On this record, we conclude the court properly exercised its discretion when it dismissed Lornes's complaint with prejudice.
DISPOSITION
The judgment is affirmed. County to recover its costs of appeal.
BENKE, Acting P. J. WE CONCUR: HALLER, J. DATO, J.