Opinion
F077778
12-05-2019
JOSE CARRILLO, as Trustee, etc., Plaintiff and Appellant, v. ASLAN COLD STORAGE, LLC, Defendant and Respondent.
Jose Carrillo, in pro. per., for Plaintiff and Appellant. Kahn, Soares & Conway, Richard C. Conway and Rissa A. Stuart for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14CECG00774)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. Mark W. Snauffer, Judge. Jose Carrillo, in pro. per., for Plaintiff and Appellant. Kahn, Soares & Conway, Richard C. Conway and Rissa A. Stuart for Defendant and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Peña, J.
-ooOoo-
Plaintiff Jose Carrillo, as trustee of the Daniela M. Carrillo Trust (Carrillo), appeals in propria persona from an order denying his motion to vacate a prior trial court order striking his second amended complaint sua sponte because Carrillo filed it without leave of court. Carrillo contends the trial court erred in finding his due process rights were not violated when it struck the second amended complaint. Finding no reversible error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Carrillo instituted this action in March 2014, when he filed a complaint against J & J Ranch Produce, Inc. (J & J), Farmers Fresh Fruit Co. (Farmers Fresh), and Doe defendants, alleging defendants engaged in fraud on Carrillo by falsely representing they were ordering and would pay for a specific number of grapes at specific prices. Carrillo filed a first amended complaint (FAC) in November 2014. Farmers Fresh's default was entered in September 2015 on the FAC. In April 2016, Carrillo identified Doe 1 in the FAC as Aslan Cold Storage, LLC. The case proceeded to trial on the FAC solely as to J & J in July 2016. The trial court rendered judgment in J & J's favor in December 2016.
Neither the original complaint nor the first amended complaint is in the clerk's transcript.
We affirmed the judgment, which the trial court entered in J & J's favor, in Carrillo v. J & J Ranch Produce, Inc. (Mar. 20, 2019, F075215) [nonpub. opn.].)
On March 6, 2017, Carrillo filed a second amended complaint (SAC) without leave of court. Aslan subsequently filed a motion to dismiss the action against it on the ground Carrillo failed to serve the complaint on it within three years after commencement of the action. In November 2017, the trial court granted the motion, finding Aslan had never been properly served and the time for service ended on March 17, 2017, as the "new" allegations in the SAC necessarily arose out of the same nucleus of operative facts as the original complaint.
The second amended complaint is not in the clerk's transcript. Carrillo claims it added a new party, Jerry Huerta, and asserted claims against Huerta and Aslan for conversion and conspiracy for aiding and abetting Farmers Fresh to carry out the theft of Carrillo's grapes.
In December 2017, Carrillo filed a request for entry of Farmers Fresh's default on the SAC, which the clerk declined to enter, noting the entire action was dismissed on November 7, 2017. In January 2018, Carrillo filed a motion for default as to Farmers Fresh, asserting the clerk erred in refusing to enter default, as the case against Farmers Fresh remained active since only Aslan had been dismissed from the action.
Subsequent references to dates are to dates in 2018, unless otherwise noted.
On February 22, the trial court issued an order finding the motion to enter Farmers Fresh's default was moot. The trial court explained that Carrillo was correct the November 2017 dismissal was as to Aslan only; therefore, the entire case should not have been dismissed and the December 2017 request for default should not have been denied for the stated reason. The trial court corrected the case status to show the entire case was not dismissed. On February 20, the trial court had reevaluated the December 2017 request for default on the SAC and entered default. Upon review of the case, however, the trial court discovered the SAC was filed without leave of court; therefore, it struck the SAC sua sponte, leaving the FAC as the operative pleading, along with the April 2016 amendment. The trial court declared the corrected default entered on February 20 void, as it was based on the now stricken SAC, leaving the September 2015 default in effect.
On March 8, Carrillo filed a motion to vacate the February order striking the SAC on the grounds leave to amend was not required and the order was entered without notice or opportunity to oppose it and be heard. Carrillo argued that because Aslan neither answered nor demurred to the FAC, he was entitled to amend the complaint once as a matter of course without leave of court under Code of Civil Procedure section 472, subdivision (a). He further argued the order was void because the court struck the SAC without notice or opportunity to be heard. A hearing date on the motion was set for April 18.
Code of Civil Procedure section 472, subdivision (a) provides, in relevant part: "A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed ...."
On April 18, the trial court issued an order denying Carrillo's motion. The trial court stated Carrillo failed to provide proper authority to support the motion to vacate a prior court order. The trial court agreed the due process clauses of the United States and California Constitutions require a party be given reasonable notice of a judicial proceeding, but found Carrillo had been given notice and an opportunity to be heard because: (1) Carrillo set the hearing on the motion for February 22; (2) the trial court issued a tentative ruling pursuant to California Rules of Court, rule 3.1308; and (3) Carrillo had the opportunity to see the proposed ruling and request oral argument, yet Carrillo neither requested argument nor appeared for the hearing. The trial court rejected Carrillo's argument he did not need to obtain leave of court because the SAC was a first amendment as to Aslan, as the SAC named another party, who was named in both the original complaint and the FAC, and the SAC amended allegations aimed at that defendant. The trial court also noted the SAC added an additional defendant, Jerry Huerta, without leave of court, which also was improper.
The trial court issued its tentative ruling on the motion on April 17, which became its order the following day, apparently because Carrillo did not request a hearing.
On June 19, Carrillo filed a notice of appeal from the April 18 "[o]rder denying motion to vacate prior order of dismissal."
DISCUSSION
In his opening brief, Carrillo only challenges the April 18 order. He argues the trial court erred in ruling the "one-hour notice to request a hearing on its tentative ruling was sufficient due process notice." He asserts the trial court posted its tentative ruling at 3:00 p.m., when he was farming his grapes, which under California Rules of Court, rule 3.1308(a), "constructively gave him one hour to demand an oral hearing, notice opposing counsel of it, and be prepared to argue against it." Carrillo asserts he set a motion to enter default against a defendant, not to have the court strike his SAC, and he could not have appeared at a hearing that was never held. Accordingly, he asks us to reverse the trial court's order striking the SAC.
"The constitutional guarantee of due process requires that a court give notice to a party and an opportunity to respond before sua sponte dismissing an action." (In re Marriage of Straczynski (2010) 189 Cal.App.4th 531, 538.) Thus, where a trial court fails to provide notice and an opportunity to respond before dismissing an action on its own motion, it violates the parties' due process rights. (Ibid.; see Bricker v. Superior Court (2005) 133 Cal.App.4th 634, 639 [superior court judge violated a party's due process rights by sua sponte dismissing an appeal from a small claims court judgment during a readiness conference without issuing an order to show cause].)
Here, the trial court did not provide Carrillo with notice that the propriety of filing the SAC would be at issue in the hearing on Carrillo's motion for default as to Farmers Fresh until the tentative ruling was made available the day before the hearing date. This gave Carrillo an hour to request oral argument and less than a day to prepare to address the issue. Although Carrillo did not review the tentative ruling or avail himself of the opportunity to request or appear for oral argument, he had no idea the trial court was going to raise this issue in the tentative ruling on a motion he brought simply to reinstate the case so he could take Farmers Fresh's default.
Even if Carrillo did not receive sufficient notice that the trial court intended to strike the SAC on February 22, Carrillo was given a second opportunity to contest the dismissal of the SAC through his motion to vacate. (See Ellis v. Roshei Corp. (1983) 143 Cal.App.3d 642, 647-648 [attorney had adequate notice and opportunity to be heard on sanctions motion where attorney was able to argue against the imposition of sanctions in his motion for reconsideration of sanctions order].) Carrillo obviously was aware of the trial court's decision to strike the SAC when he filed his motion to vacate, in which he argued the SAC should not have been stricken because leave to amend was not required. There is nothing in the record to indicate Carrillo was not given a full opportunity to persuade the trial court to reconsider whether the SAC should be stricken. The matter was submitted for the trial court's consideration and Carrillo's motion to vacate was denied, with the trial court directly addressing, and rejecting, Carrillo's argument that leave to amend was not required. Thus, any due process concerns were satisfied, as Carrillo ultimately was given his day in court and provided an opportunity to oppose the dismissal.
Carrillo does not argue on appeal that the trial court erred in finding leave to amend was required before filing the SAC. Moreover, he has not provided us with a record to review any such claim, as none of the complaints are in the appellate record. (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324 ["It is the burden of the party challenging a judgment on appeal to provide an adequate record to assess error."].) Therefore, Carrillo has not met his fundamental burden to show prejudicial error with respect to the trial court's April 18 order denying his motion to vacate. (Samara v. Matar (2018) 5 Cal.5th 322, 335 ["[A] trial court's judgment is presumed correct, and so ordinarily will not be set aside on appeal absent an affirmative showing of reversible error."].)
Carrillo asserts for the first time in his reply brief that he is also challenging the November 2017 order dismissing Aslan from the action. He argues the trial court lacked subject matter jurisdiction to enter that order due to his pending appeal of the judgment entered against J & J, and his notice of appeal was timely as to the November 2017 order. Carrillo asks us to re-open briefing as to the November 2017 Aslan-only dismissal order.
Carrillo's arguments in his reply brief appear to have been triggered by Aslan's arguments in its brief. Aslan asserted it was "very clear" from Carrillo's opening brief that this appeal concerns the February 22 order dismissing the SAC sua sponte and the trial court's denial of the April 18 motion to vacate that order. Aslan declined to take a position on the validity of these orders as it had no interest in them. Aslan further asserted that if we determined Carrillo also appealed its dismissal, the appeal was untimely.
This claim fails for several reasons. First, Carrillo failed to list the November 7, 2017 order dismissing Aslan from the action in his notice of appeal. A notice of appeal must specifically identify the order from which the appellant seeks appellate review (Cal. Rules of Court, rule 8.100(a)(2)), and when there is no reference to the order from which the party purports to appeal, we have no jurisdiction to review the propriety of that order (Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46-47).
Second, even if we construed the notice of appeal as being from the November 7, 2017 order, it is untimely. The superior court clerk served notice of the order on Carrillo by mail on November 8, 2017. Thus, the notice of appeal should have been filed and served within 60 days of service of the order—by January 8, 2018. (Cal. Rules of Court, rule 8.104(a)(1)(A).) Since the notice of appeal was not filed until June 19, 2018, it is untimely as to the November 7, 2017 order.
Finally, we need not consider the argument Carrillo raises, as appellate courts have concluded issues first raised in a reply brief will not be considered absent a showing of good cause for delay. "Consistent with well-established authority, absent justification for failing to present an argument earlier, we will not consider an issue raised for the first time in a reply brief." (Save the Sunset Strip Coalition v. City of West Hollywood (2001) 87 Cal.App.4th 1172, 1181, fn. 3; see American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453; Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.) Our Supreme Court declined to consider an argument raised for the first time in a reply brief, stating: "Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant." (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11.) There being no good cause shown, and in the interests of fairness, we do not consider the argument.
Even if we were to consider the argument, we would reject it. Carrillo contends the trial court lacked subject matter jurisdiction to enter the November 7, 2017 order due to his pending appeal from the judgment entered in J & J's favor following a bench trial on the FAC, as the interests of J & J and Aslan were identical. In support, Carrillo cites Stockton etc. Works v. Glen's Falls Ins. Co. (1893) 98 Cal. 557, 577, which expresses the one final judgment rule. This rule provides that "an order or judgment that fails to dispose of all claims between the litigants is not appealable under Code of Civil Procedure section 904.1, subdivision (a)." (Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 436.) This rule does not apply, however, " 'when the case involves multiple parties and a judgment is entered which leaves no issue to be determined as to one party.' " (Id. at p. 437.) Here, the judgment entered in J & J's favor was appealable, as it left no issue to be determined as to J & J, even though the case against Aslan had not been resolved. Carrillo's appeal from the judgment in J & J's favor did not divest the trial court of jurisdiction to resolve issues concerning Aslan's purported liability. While the automatic stay of Code of Civil Procedure section 916, subdivision (a), bars all proceedings that "directly or indirectly seek to 'enforce, vacate or modify [the] appealed judgment or order' " or "substantially interfere with the appellate court's ability to conduct the appeal" (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189-190), there is nothing in this record to suggest Carrillo's case against Aslan, and the trial court's subsequent dismissal of Aslan from the action, had any effect on the appeal of the judgment entered in J & J's favor. --------
DISPOSITION
The trial court's April 18, 2018 order is affirmed. The parties are to bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)