Opinion
C087399
05-19-2021
ROGER GIFFORD, Plaintiff and Appellant, v. THE SUPERIOR COURT OF SISKIYOU COUNTY et al., Defendants and Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCSCCVPT171126)
Plaintiff by his own account files numerous actions in the Superior Court of Siskiyou County, in forma pauperis. In 2017, plaintiff began to receive notices from the court clerk's office indicating that his fax filings were rejected for failure to pay fax filing fees. Plaintiff commenced this separate action to challenge what he characterized as the policy established by a judge of the Superior Court of Siskiyou County to charge these fees even to indigent litigants and/or to lodge fee waiver requests for judicial review. The trial court sustained defendants' demurrer to the first amended complaint without leave to amend.
Plaintiff, appearing in propria persona, appeals. He contends, among other things, that he properly sought a writ of mandate to address the trial court's fax filing fee waiver policy.
We conclude that Code of Civil Procedure section 1085 does not authorize issuance of a writ of mandate by a court to the same court, or to another department of the same court. We further conclude that plaintiff cannot seek mandamus or injunctive relief from actions taken in cases before the superior court by challenging those actions in a separate action in the same court. We also conclude that there is no "actual controversy" here, and thus declaratory relief is not available to plaintiff.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Petition/Complaint
On October 1, 2017, plaintiff filed a petition/complaint seeking a writ of mandate (Code Civ. Proc., § 1084) and seeking declaratory and injunctive relief. Plaintiff named as defendants the Superior Court of Siskiyou County, Judge Laura J. Masunaga, and the clerk's office of the Superior Court of Siskiyou County.
Further undesignated statutory references are to the Code of Civil Procedure.
Plaintiff alleged that, for approximately two years, he had been filing cases in the Superior Court of Siskiyou County, and that he had proceeded in these cases in forma pauperis. In connection with these cases, he had occasionally filed documents in the clerk's office by fax and relied on his fee waiver to avoid charges for this service. However, beginning in September 2017, plaintiff began to receive notices that his fax filings were rejected for failure to pay the fax filing fees. According to plaintiff, this action resulted from an order issued by Judge Masunaga in another case which was being applied to a number of indigent plaintiffs. When plaintiff went to the clerk's office to refile documents, the clerk told him that a new policy was in effect requiring an additional fee waiver to be filed every six months. Plaintiff alleged that he completed new fee waiver forms, only to have the clerk "lodg[e]" the forms for review by a judge.
Plaintiff sought a writ of mandate, among other things, compelling defendants to comply with the fee waiver provisions of Government Code section 68630 et seq., "and to require that any fee waiver granted to an indigent person attempting to file documents with the Court also be determined to apply to the waiver of any 'fax filing fee' imposed thereby by the plain language of the fee waiver statutes." Plaintiff also sought a writ prohibiting defendants from refusing to provisionally grant a facially valid fee waiver application and refer such to a hearing, and from requesting any supplemental fee waiver application after a fee waiver had been granted. Plaintiff also sought a writ compelling the county clerk to immediately file facially valid fee waiver requests rather than lodging such requests for judicial review. The writ petition/complaint also sought declaratory and injunctive relief.
Demurrer
Defendants filed a demurrer to plaintiff's petition/complaint on the grounds that (1) plaintiff lacked standing to challenge the denial of a fee waiver of fax charges because he was effectively granted the waiver, (2) mandamus was not the appropriate mechanism to challenge a fax filing fee waiver request determination, (3) injunctive and declaratory relief were not available to challenge the court's determination with regard to a fax filing fee waiver request, and (4) all claims against Judge Masunaga were barred by judicial immunity.
Defendants asserted that, in a prior lawsuit, plaintiff requested a waiver of filing fees, but failed to fully complete the form. Plaintiff completed a new form and thereafter received an order granting a fee waiver. In another prior lawsuit, plaintiff was granted a waiver of filing fees and he sought to use fax services to file his pleadings without paying any fax filing fees. Plaintiff was given notice that he owed $4.00 for fax services. Plaintiff then filed this action. The trial court subsequently issued an order accepting plaintiff's amended complaint for filing without paying the fax filing fees.
Defendants noted that plaintiff sought declaratory and injunctive relief on behalf of himself as well as all other parties appearing in forma pauperis using the services of the court and asserted that plaintiff lacked standing to obtain relief on behalf of others. Defendants noted that a person who is not an attorney may not represent others. Thus, he could not seek relief on behalf of anyone other than himself. Additionally, defendants asserted that plaintiff lacked standing to pursue declaratory and injunctive relief on his own behalf because he had not alleged that he was suffering any current injury by denial of access to the courts or entitlement to participate as a party to any action, and he could not assert that he was or would be required to use fax services to obtain access to the courts or participate as a party to an action.
As for the claims asserted against Judge Masunaga, defendants argued they were barred by judicial immunity. According to defendants, if plaintiff was dissatisfied with an order or judgment issued by a judge, the remedy was to directly appeal, not to file a separate lawsuit collaterally attacking the judge's actions.
Request for Judicial Notice
Defendants filed a request for judicial notice in support of their demurrer. Defendants requested that the court take judicial notice of: (1) plaintiff's request to waive fees filed in superior court case number SCCVCV 16-1292 on September 28, 2017, (2) the trial court's order on that request filed on September 28, 2017, (3) plaintiff's request to waive fees filed in the same case on October 4, 2017, (4) the trial court's order on that request entered October 4, 2017, (5) the trial court's order on court fee waiver entered on May 18, 2017, in superior court case number CVPO-2017-561, (6) the clerk's notice of failure to pay fax filing charges filed on September 18, 2017, (7) the trial court's order entered on October 19, 2017, in superior court case number CVPO-2017-561, stating that plaintiff's amended complaint should not have been "unfiled," directing the clerk to file the amended complaint, and denying the request for additional fax filing fees, and (8) the trial court's order entered on December 5, 2017, in superior court case number SC CV CV 17-0961, declaring plaintiff a vexatious litigant subject to a prefiling order.
There is no indication in the record that the trial court ruled on defendants' request for judicial notice. On appeal, defendants requested that we take judicial notice of items listed ante as numbers (2), (4), (5), (6), (7), and (8) in the request for judicial notice made in the trial court. Additionally, defendants requested that we take judicial notice of Superior Court of Siskiyou County, Local Rules, rules 2.15, addressing fax filing in civil actions and 2.16, addressing fee waivers. Decision on defendants' request for judicial notice was deferred pending calendaring and assignment of the panel. We grant defendants' request for judicial notice except as to item (8), which indicates plaintiff was declared a vexatious litigant on December 5, 2017, two months after the October 1, 2017 original pleading in this case was filed. While this court granted plaintiff's request to file new litigation by a vexatious litigant, allowing plaintiff's appeal to this court to proceed, we decline to take judicial notice of the order declaring defendant a vexatious litigant because it is not relevant or necessary to our analysis. (Appel v. Superior Court (2013) 214 Cal.App.4th 329, 342, fn. 6 [judicial notice denied where materials are not "relevant or necessary" to the court's analysis].)
First Amended Petition/Complaint
On January 25, 2018, plaintiff filed a first amended petition/complaint containing the same titled causes of action as set forth in his original complaint and expanding on his discussion of the statutory scheme governing fee waiver applications and the right to access the courts as an indigent litigant. In a noteworthy change from his original petition/complaint, in which he described Judge Masunaga as "acting within her official capacity," plaintiff described Judge Masunaga in the first amended petition/complaint as "acting in an administrative and/or executive capacity." Plaintiff also acknowledged in his first amended petition/complaint that he "does not seek review of any specific action concerning any fee waiver he may have submitted, or had approved or denied in any particular case."
Demurrer to First Amended Complaint
Defendants demurred to the first amended petition/complaint. Defendants emphasized that plaintiff, by his own admission, did not seek review of any specific action taken on any of his fee waiver requests. They again asserted plaintiff lacked standing to pursue this litigation, and asserted plaintiff had failed to advance any viable cause of action entitling him to relief. Defendants further asserted plaintiff lacked standing to pursue relief on behalf of other litigants. Additionally, particularly in light of plaintiff's admission, defendants asserted there was no actual justiciable controversy in which plaintiff had a real interest in the ultimate adjudication. Defendants repeated the argument that claims against Judge Masunaga were barred by judicial immunity and further asserted that she was immune under the Eleventh Amendment. Defendants also asserted that plaintiff was merely trying to avoid the doctrine of judicial immunity by describing Judge Masunaga in the first amended petition/complaint as acting in an administrative and/or executive capacity. Lastly, defendants argued plaintiff should not be granted leave to further amend his petition/complaint.
Order on Submitted Matter, Judgment, and Appeal
After plaintiff filed a notice of non-appearance, the trial court took the matter under submission. Thereafter, the court sustained defendants' demurrer to the first amended petition/complaint. In its written order, the court stated that the demurrer was sustained on the grounds that: (1) plaintiff lacked standing to challenge the process of granting or denying of a fee waiver on fax charges for other people, (2) plaintiff lacked standing to pursue any relief sought because he lacked a justiciable interest based on his express denial of any interest in challenging the process, granting, or denying his own fee waiver application, (3) mandamus was not the appropriate mechanism to challenge a fax fee waiver request, (4) injunctive and declaratory relief were not available to challenge the trial court's determination on a fax fee waiver request, and (5) all claims against Judge Masunaga were barred by judicial immunity and the Eleventh Amendment. Noting that plaintiff previously attempted to amend his petition/complaint, the court indicated it was not satisfied that plaintiff could cure the deficiencies in his pleading and sustained the demurrer without further leave to amend.
The trial court entered judgment in favor of defendants, dismissing plaintiff's first amended petition/complaint.
DISCUSSION
I. Standard of Review
A demurrer tests the sufficiency of the complaint as a matter of law, and it raises only questions of law. (§ 589, subd. (a).) "We review a trial court's decision to sustain a demurrer for an abuse of discretion." (Zipperer v. County of Santa Clara (2005) 133 Cal.App.4th 1014, 1019.) " ' " 'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the [complaint] a reasonable interpretation, reading it as a whole and its parts in their context." ' " (Finch Aerospace Corp. v. City of San Diego (2017) 8 Cal.App.5th 1248, 1251-1252 (Finch Aerospace Corp.).) "[T]he complaint must be liberally construed and survives a general demurrer insofar as it states, however inartfully, facts disclosing some right to relief." (Longshore v. County of Ventura (1979) 25 Cal.3d 14, 22; see also Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1162 [we decide "whether a cause of action has been stated under any legal theory when the allegations are liberally construed"].) "In reviewing an order sustaining a demurrer, we examine the operative complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory. [Citation.] Where the demurrer was sustained without leave to amend, we consider whether the plaintiff could cure the defect by an amendment. The plaintiff bears the burden of proving an amendment could cure the defect." (T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162.)
II. The Parties' Contentions
Plaintiff asserts that the trial court erred in sustaining defendants' demurrer to his first amended petition/complaint. Plaintiff goes into substantial detail in his briefing concerning the fee waiver statutory scheme (Gov. Code, § 68630 et seq.), although largely irrelevant to the grounds upon which the trial court relied in sustaining the demurrer without leave to amend. We discuss plaintiff's specific contentions in more detail post.
Defendants assert that the dispositive defect with plaintiff's first amended petition/complaint is that the superior court lacks jurisdiction over any lawsuit seeking to collaterally challenge its actions and rulings in a separate action, and that the judgment should be affirmed on this basis alone. Defendants assert that, to the extent plaintiff was dissatisfied with any ruling of the court, his recourse was direct appellate review in that case, not commencing separate litigation collaterally attacking the court's actions. Defendants assert that the superior court lacks jurisdiction to issue declaratory, injunctive, mandamus, or other relief against itself or any individual judge in the court. Defendants further maintain that this case presents no actual controversy, noting that plaintiff does not and cannot allege that any judge of the court has denied him a waiver of any fee, including a fax filing fee.
III. The Trial Court Properly Sustained the Demurrer Without Leave to Amend
A. Section 1085 Authorization of the Issuance of a Writ to an "Inferior Tribunal"
" ' "Under settled canons of statutory construction, in construing a statute we ascertain the Legislature's intent in order to effectuate the law's purpose. [Citation.] We must look to the statute's words and give them their usual and ordinary meaning. [Citation.] The statute's plain meaning controls the court's interpretation unless its words are ambiguous." [Citations.] If the words in the statute do not, by themselves, provide a reliable indicator of legislative intent, "[s]tatutory ambiguities often may be resolved by examining the context in which the language appears and adopting the construction which best serves to harmonize the statute internally and with related statutes. [Citation.]" [Citation.] " 'Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute . . . ; and if a statute is amenable to two alternative interpretations, the one that leads to the more reasonable result will be followed [citation].' [Citations.]" [Citation.] If the statute is ambiguous, we may consider a variety of extrinsic aids, including legislative history, the statute's purpose, and public policy.' " (People v. Lucero (2019) 41 Cal.App.5th 370, 394-395, quoting People v. Arias (2008) 45 Cal.4th 169, 177; accord, Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, 1183-1184.)
Section 1085 provides: "A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person." (§ 1085, subd. (a), italics added.)
The plain language of section 1085 makes clear that "[t]he superior court does not have the authority or jurisdiction to issue mandamus or prohibition against itself." (People v. Davis (2014) 226 Cal.App.4th 1353, 1371; accord, Haldane v. Superior Court of Los Angeles County (1963) 221 Cal.App.2d 483, 485.) " 'Mandamus or prohibition may be issued only by a court to another court of inferior jurisdiction.' " (Davis, at p. 1371, italics added; accord, Haldane, at pp. 485-486.)
Thus, the trial court lacked the authority to consider the merits of plaintiff's contentions insofar as he sought a writ of mandate pursuant to section 1085 from the Superior Court of Siskiyou County to be issued to itself or to another department of the same court.
Plaintiff notes that we may consider an appeal as a petition for a writ in the first instance, and he requests that we deem his appeal a petition for a writ in this court. " 'Under unusual circumstances, we may decide to treat an improper appeal as a petition for an extraordinary writ.' " (Concerned Citizens Coalition of Stockton v. City of Stockton (2005) 128 Cal.App.4th 70, 82.) We decline this request, which was made for the first time in plaintiff's reply brief. We see no unusual circumstances that weigh in favor of deeming plaintiff's appeal a writ petition.
B. Collateral Attacks in the Superior Court
Plaintiff sought injunctive relief in the superior court. " ' " 'A superior court is but one tribunal, even if it be composed of numerous departments . . . . An order made in one department during the progress of a cause can neither be ignored nor overlooked in another department . . . .' " [Citations.] This is because the state Constitution, article VI, section 4 vests jurisdiction in the court, " . . . and not in any particular judge or department . . . ; and . . . whether sitting separately or together, the judges hold but one and the same court. [Citation.] It follows, . . . where a proceeding has been . . . assigned for hearing and determination to one department of the superior court by the presiding judge . . . and the proceeding . . . has not been finally disposed of . . . it is beyond the jurisdictional authority of another department of the same court to interfere with the exercise of the power of the department to which the proceeding has been so assigned . . . . If such were not the law, conflicting adjudications of the same subject-matter by different departments of the one court would bring about an anomalous situation and doubtless lead to much confusion." ' " (Ford v. Superior Court (1986) 188 Cal.App.3d 737, 741-742 (Ford).)
Thus, "[o]ne department of the superior court cannot enjoin, restrain, or otherwise interfere with the judicial act of another department of the superior court." (Ford, supra, 188 Cal.App.3d at p. 742, italics added.) With exceptions not relevant here, "[a]ppellate jurisdiction to review, revise, or reverse decisions of the superior courts is vested by our Constitution only in the Supreme Court and the Courts of Appeal." (Ibid., citing Cal. Const., art. VI, § 11.)
As was the case in Ford, to the extent that plaintiff challenges fax filing fee waiver determinations in other cases he filed in the superior court, "[t]he complaint states no cause of action. In reality, it seeks to have one department of the superior court review and restrain the judicial act of another department of the superior court. That cannot be done." (Ford, supra, 188 Cal.App.3d at p. 741.)
According to plaintiff's own representation, however, he "does not seek review of any specific action concerning any fee waiver he may have submitted, or had approved or denied in any particular case." Plaintiff insists that his pleading is addressed to "the overarching policies and procedures that are imposed against fee waivers and fax-filing in all instances . . . ."
"An "[i]njunction is an equitable remedy available to a person aggrieved by certain torts or other wrongful acts . . . ." [Citation.] . . . [Citation.] To obtain an injunction, a party must show injury as to himself. 'To have standing, a party must be beneficially interested in the controversy; that is, he or she must have "some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large." ' " (Connerly v. Schwarzenegger (2007) 146 Cal.App.4th 739, 748.) At most, plaintiff claims to be potentially aggrieved by the possible future application of a fax filing fee waiver policy implemented in the Superior Court of Siskiyou County to him. Assuming, without deciding, this could constitute a sufficient allegation that he will suffer particularized injury as a result of the threatened enforcement of the superior court's policy (see id. at pp. 748-749), plaintiff nonetheless sought an injunction in the superior court against the superior court. As stated ante, "[o]ne department of the superior court cannot enjoin, restrain, or otherwise interfere with the judicial act of another department of the superior court." (Ford, supra, 188 Cal.App.3d at p. 742, italics added.) Thus, plaintiff cannot establish entitlement to injunctive relief.
"[E]very right must have a remedy." (People v. Picklesimer (2010) 48 Cal.4th 330, 339.) However, a petition for writ of mandamus or a request for injunctive relief filed in the Superior Court of Siskiyou County was not the proper vehicle for plaintiff to challenge fax filing fee waiver determinations in other actions in that court, or to challenge the blanket policy that plaintiff alleges exists in that court.
The fact that plaintiff named Judge Masunaga and the court clerk as defendants in addition to the Superior Court of Siskiyou County does not change this result. With respect to Judge Masunaga, plaintiff is simply seeking relief from one judge of the superior court through another judge of the same court. This avenue for relief is not available. (Ford, supra, 188 Cal.App.3d at p. 742.) Claiming that he is seeking relief against Judge Masunaga solely in her administrative or executive capacity does not change the result. First, while we treat a demurrer as admitting all material facts properly pleaded, the same is not true for " ' " 'contentions, deductions or conclusions of fact or law.' " ' " (Finch Aerospace Corp., supra, 8 Cal.App.5th at pp. 1251-1252.) Second, plaintiff alleges in his own pleadings that the source of the policy he challenges is an order issued by Judge Masunaga in another case. Specifically, he alleges that, once he began receiving notices rejecting his documents filed by fax for failure to pay the fax filing fee, he "learned that this action was being undertaken due to reliance upon an Order issued by the Hon. Laura Masunaga on August 31, 2017 in another case involving a different plaintiff . . . ." Thus, contrary to his representations, his first amended petition/complaint plainly seeks to review this alleged order and its alleged application throughout the Superior Court of Siskiyou County.
With respect to the clerk here, the plaintiffs in Ford also named the clerk of the superior court as a defendant. (Ford, supra, 188 Cal.App.3d 737.) Like plaintiff here, the plaintiffs in Ford sought an order addressing actions of both the superior court and the superior court clerk. (Id. at p. 741.) Like the Ford court, we conclude that relief is not available to plaintiff through this proceeding. (Id. at pp. 741-742.) If plaintiff were aggrieved by a particular action by the court clerk, his possible recourse could include seeking review in the superior court in that same action (Wolf v. Mulcrevy (1917) 35 Cal.App. 80, 81 [if the petitioner seeks to address action taken or not taken by the court clerk in connection with the filing of his petition, the petitioner's remedy is in the superior court by an application there to have his paper filed, numbered, and indexed by the clerk]), or filing for a writ of mandate in the Court of Appeal for such writ to issue to the superior court, an "inferior tribunal" within the meaning of section 1085, subdivision (a). (Voit v. Superior Court (2011) 201 Cal.App.4th 1285, 1287-1288 [petitioner filed petition for writ of mandate in Court of Appeal directing superior court to file his motion after clerk refused to file it; peremptory writ of mandate issued directing court to file motion and rule on its merits].) Plaintiff's potential remedies did not include a separate action in the superior court, seeking a writ of mandate and injunctive and declaratory relief against that court or its clerk.
C. No "Actual Controversy" to Support Declaratory Relief
Section 1060 authorizes a cause of action for declaratory relief. That section provides, in pertinent part: "Any person . . . who desires a declaration of his or her rights or duties with respect to another, . . . may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court . . . ." (Italics added.) " 'The "actual controversy" requirement concerns the existence of present controversy relating to the legal rights and duties of the respective parties pursuant to contract [citation], statute or order.' " (Sweetwater Union High School Dist. v. Julian Union Elementary School Dist. (2019) 36 Cal.App.5th 970, 984, quoting Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410 (Brownfield).) "Where the allegations of the complaint reveal the controversy to be conjectural, anticipated to occur in the future, or an attempt to obtain an advisory opinion from the court, the fundamental basis of declaratory relief is lacking." (Brownfield, at p. 410.)
Plaintiff maintains that he is "being subjected to actions concerning his fee waivers which are contrary to law, and that he intends to attempt to use fee waivers, and associated court services, in the future."
As emphasized by defendants, however, plaintiff acknowledged in his first amended petition/complaint that he "does not seek review of any specific action concerning any fee waiver he may have submitted, or had approved or denied in any particular case." Plaintiff's allegations of harm are exclusively conjectural and anticipated to occur in the future. (Brownfield, supra, 208 Cal.App.3d at p. 410.) There is no "actual controversy relating to the legal rights and duties of the respective parties." (§ 1060.) In the absence of an "actual controversy," the first amended petition/complaint does not state a cause of action for declaratory relief. (Ephraim v. Metropolitan Trust Co. of Cal. (1946) 28 Cal.2d 824, 836 ["since no present legal controversy exists, a cause of action for declaratory relief is stated"].)
In light of our determinations in parts III.A through III.C., we need not address plaintiff's additional contentions that he has standing to advance a writ petition and to seek declaratory relief.
D. Leave to Amend
In his reply brief, plaintiff asserts that the trial court erred in sustaining the demurrer without leave to amend, asserting that the defects in his pleading can be cured by amendment. A plaintiff may assert, for the first time on appeal, that the trial court abused its discretion in sustaining a demurrer without leave to amend even though the plaintiff did not seek to amend the pleading in the trial court. (§ 472c, subd. (a); Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 970-971.) However, on appeal, the plaintiff has the burden to show that amendment could cure the defects. (T.H. v. Novartis Pharmaceuticals Corp., supra, 4 Cal.5th at p. 162.)
Beyond setting forth the standard of review, plaintiff failed to raise the contention in his opening brief on appeal that amendment could cure the defects in his pleading, and he did not offer proposed theories he would employ if granted the opportunity to amend his pleading. Additionally, plaintiff offers no good cause for these failures. We ordinarily do not consider contentions raised for the first time in reply. (Shimmon v. Franchise Tax Bd. (2010) 189 Cal.App.4th 688, 694, fn. 3 [appellants' assertion that they should have been granted leave to amend, raised for the first time in reply and without good cause shown for failing to raise the point earlier, rejected]; accord, Citizens for Positive Growth & Preservation v. City of Sacramento (2019) 43 Cal.App.5th 609, 630, fn. 9, quoting Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52 [" '[w]e do not consider points raised for the first time in the reply brief absent a showing of good cause for the failure to present them earlier' "].)
In any event, we conclude that plaintiff has failed to show that he could cure the defects in his pleading if granted leave to amend. He has therefore failed to carry his burden of showing that the trial court abused its discretion in sustaining the demurrer without leave to amend. (T.H. v. Novartis Pharmaceuticals Corp., supra, 4 Cal.5th at p. 162; accord, Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
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DISPOSITION
The judgment is affirmed. Defendants are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278, subd. (a)(1), (2).)
/s/_________
MURRAY, Acting P. J. We concur: /s/_________
RENNER, J. /s/_________
KRAUSE, J.