Opinion
D073990
11-08-2019
LESZEK CZTERNASTY, Plaintiff and Appellant, v. COUNTY OF SAN DIEGO, Defendant and Respondent.
Leszek Czternasty, in pro. per., for Plaintiff and Appellant. Thomas E. Montgomery, County Counsel, Melissa M. Holmes, Roberto A. Ortiz and Yan Ren, Deputies 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 37-2016-00004159-CU-CR-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Joan M. Lewis, Judge. Affirmed. Leszek Czternasty, in pro. per., for Plaintiff and Appellant. Thomas E. Montgomery, County Counsel, Melissa M. Holmes, Roberto A. Ortiz and Yan Ren, Deputies County Counsel, for Defendant and Respondent.
I.
INTRODUCTION
Leszek Czternasty appeals from a judgment of dismissal entered after the trial court sustained the County of San Diego's demurrer to Czternasty's first amended complaint without leave to amend. On appeal, Czternasty claims the trial court erred in sustaining the demurrer without leave to amend because the County purportedly failed to comply with the meet and confer process specified in Code of Civil procedure section 430.41 before filing its demurrer. However, as the trial court noted, section 430.41, subdivision (a)(4) expressly provides that "[a]ny determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer." (§ 430.41, subd. (a)(4).) Accordingly, we conclude the trial court did not err in sustaining the County's demurrer without leave to amend. We affirm the judgment.
Section 430.41, subdivision (a) provides that, before filing a demurer, a party "shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer."
Unless otherwise specified, all subsequent statutory references are to the Code of Civil Procedure.
Czternasty does not cite or discuss this provision on appeal.
California Rules of Court, rule 8.204(a)(1), provides in relevant part: "(1) Each brief must . . . [¶] . . . [¶] (C) Support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." Czternasty's brief does not contain a single proper citation to the record.
We choose to exercise our authority under California Rules of Court, rule 8.204(e)(2)(C), to disregard such noncompliance because it is clear that his appeal is without merit and we do not wish to further delay the proceedings. (See Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 113 [lamenting failure to provide adequate record citations, but choosing to disregard noncompliance so as not to further delay the appeal].)
II.
FACTUAL AND PROCEDURAL BACKGROUND
While this appeal was pending, we granted the County's unopposed motion to augment the record to include many of the documents discussed in this section.
Czternasty filed a first amended complaint against the County containing a single cause of action for "Unlawful Search and Seizure for Civil Rights Violation."
Neither the complaint nor the first amended complaint are in the record. We base our description of the first amended complaint on the trial court's order sustaining the County's demurrer to the first amended complaint without leave to amend.
The County filed a demurrer to Czternasty's first amended complaint. In its brief in support of its demurrer, the County argued that Czternasty's first amended complaint failed to state the existence of any custom or policy giving rise to a violation of Czternasty's constitutional rights as would be required to state his claim against the County under 42 United States Code section 1983.
Along with its demurrer, the County lodged the declaration of Attorney Mark Day. In his declaration, Attorney Day stated in relevant part:
". . . California Code of Civil Procedure section 430.41[,] [subdivision] (a) requires parties to meet and confer to discuss their legal arguments before a demurring party may file a demurrer with this Court. The County is filing its demurrer to Plaintiffs First Amended Complaint and submits this declaration to establish that the meet and confer requirement has been satisfied.
". . . On September 15, 2017, I attended an ex parte hearing . . . . At that hearing, I explained to Mr. Czternasty the deficiency in his First Amended Complaint . . . . Mr. Czternasty and I also discussed his case before and after the hearing. We did not reach an agreement resolving the objections raised in the County's demurrer.
"I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this Declaration was executed on October 12, 2017 at San Diego, California."
The trial court sustained the demurrer without leave to amend. The court ruled that the first amended complaint failed to state an official policy or an unofficial custom that caused Czternasty to suffer a violation of his constitutional rights as would be required to properly state his cause of action against the County.
The trial court noted that Czternasty's only argument in opposition to the County's demurrer was that the County had not engaged in the meet and confer process required by section 430.41. The trial court rejected this argument, reasoning, "Regardless of whether the County did or did not properly meet and confer, [section] 430.41 provides at [subdivision] (a)(4) that '[a]ny determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.' "
The trial court subsequently entered a judgment of dismissal. Czternasty appeals from the judgment.
III.
DISCUSSION
Czternasty is not entitled to reversal of the judgment on the ground that the County
failed to comply with the meet and confer process specified in section 430 .41
Czternasty contends that the trial court erred in sustaining the County's demurrer without leave to amend. In support of this contention, Czternasty raises a single argument, namely that the County purportedly failed to comply with the meet and confer process specified in section 430.41. Czternasty argues that Attorney Day "lied" and committed "perjury" in his declaration that the County offered to establish that it had complied with section 430.41 prior to filing its demurrer. A. Governing law
On page nine of its respondent's brief, the County improperly cited to an unpublished opinion of the Court of Appeal in contravention of California Rules of Court, rule 8.1115, subdivision (a). We do not rely on such unpublished authority in this opinion, and we admonish the County not to include such citations in its briefs in future litigation.
As noted in part I, ante, section 430.41, subdivision (a) provides that, before filing a demurer, a party "shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer."
Section 430.41, subdivision (a)(1) describes the nature of the meet and confer process and section 430.41, subdivision (a)(2) provides a timetable pursuant to which such process is to occur.
Section 430.41, subdivisions (a)(1) through (2) provide:
"(1) As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. The party who filed the complaint, cross-complaint, or answer shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.
"(2) The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the responsive pleading was previously due, and the demurring party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause."
Section 430.41, subdivision (a)(3) requires the demurring party to file a declaration describing the meet and confer process undertaken. The statute provides:
"The demurring party shall file and serve with the demurrer a declaration stating either of the following:
"(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer.
"(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith." (Ibid.)
Finally, section 430.41, subdivision (a)(4) expressly provides that any determination by the trial court as to the insufficiency of the meet and confer process shall not be a basis for overruling or sustaining a demurrer. The statute provides:
"Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer." (Ibid.)
In Olson v. Hornbrook Community Services Dist. (2019) 33 Cal.App.5th 502, 515 (Olson), the Court of Appeal discussed section 430.41, subdivision (a)(4) in concluding that a party's alleged failure to meet and confer prior to the filing of its demurrer did not cause the trial court to lose jurisdiction of the pleadings. The Olson court reasoned:
"[S]ection 430.41 does not contain any penalties for the failure to follow the meet-and-confer process set forth in subdivision (a)(1). . . . Thus, even if the District did not comply with the meet-and-confer requirements, we do not agree with plaintiffs that the consequence of that failure is for the court to lose jurisdiction over the pleadings."B. Application
Czternasty asserts that Attorney Day "lied" and committed "perjury" in stating that the parties had met and conferred prior to the County's filing of its demurrer. Czternasty requests that we reverse the judgment and the order sustaining the County's demurrer without leave to amend on the ground that the County failed to meet and confer with him prior to filing its demurrer.
As noted in part III.A, ante, section 430.41, subdivision (a)(4) provides that "[a]ny determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer." (Italics added; see Olson, supra, 33 Cal.App.5th at p. 515 [discussing section 430.41, subdivision (a)(4) and stating, "[E]ven if the District failed to meet and confer, that failure would not affect the court's ruling on the demurrer"].) Given the plain language of section 430.41, subdivision (a)(4), even assuming that Czternasty had established that the County failed to comply with the meet and confer process outlined in section 430.41, such failure would not have constituted a basis for the trial court to overrule the County's demurrer.
We emphasize that Czternasty did not establish, in either the trial court or this court, that the County failed to comply with the meet and confer process specified in section 430.41.
Accordingly, we conclude that Czternasty is not entitled to reversal of the judgment on the ground that the County failed to comply with the meet and confer process specified in section 430.41.
IV.
DISPOSITION
The judgment is affirmed. Czternasty is to bear costs on appeal.
AARON, J. WE CONCUR: HUFFMAN, Acting P. J. HALLER, J.