Opinion
NOT TO BE PUBLISHED
S.F. City & County Super. Ct. No. CGC-05-445986
Richman, J.
Michael Harrington brought this malpractice action against his former attorney, Russell A. Robinson and the Law Office of Russell A. Robinson (together Robinson), for alleged professional negligence in handling a defamation suit (Harrington v. Hotwire, Inc., S.F. City & County, Super. Ct. No. CGC-02-414635) that had ended in a defense verdict. Harrington appeals a judgment of dismissal entered after the court granted Robinson’s motion to strike and sustained his demurrer, without leave to amend, later denying each of two motions that Harrington styled “Motion to Set Aside Verdict.” We affirm the judgment.
The parties represented themselves at all stages below and do so on this appeal as well.
I. THE BACKGROUND
Most of Harrington’s briefing lacks citations to the record and poses arguments unsupported by citation to authority. The only authority he cites is in his opening brief (his reply brief containing none at all) and consists of two New York cases offered on the standards for granting summary judgment. The judgment here, however, is based on a demurrer and motion to strike, not summary judgment, and obviously involved California law, not New York law. Because an appealed-from judgment “is presumed correct,” an appellant must “ ‘present argument and authority on each point made’ ” and, failing in this, may have his appeal deemed abandoned. (In re Sade C. (1996) 13 Cal.4th 952, 994, citing this court’s decision in Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119.) Harrington’s deficient briefing justifies doing so here, but we exercise our discretion to address the issues, chiefly because Robinson has supplied pertinent legal authority and most of the needed record citations.
A. The Demurrer
The pleading at issue, a first amended complaint (FAC), was filed on January 26, 2006. It is a form complaint with one cause of action that reveals very little factually. Boxes are checked for “Professional Negligence,” claims of “General Negligence” and “general damage,” and a prayer for “compensatory damages,” damages “according to proof” and damages “[i]n the amount of: $30,000.” The section for the general-negligence box asks that each cause of action be “attached,” but we see none in the copies of the FAC in our record. Robinson, in the demurrer and now on appeal, has referred to a further allegation of “ineffective assistance of counsel—Russell A. Robinson failed to show the jury key evidence during a trial in which he represented me.” His citations to the record, however, do not show this, and Harrington never alludes nor cites to the allegation. This may be an overlooked gap in the record, but in any event, we will hold (part IIA, post) that such an allegation did not preclude a demurrer.
On March 1, 2006, Robinson filed a demurrer (Code Civ. Proc., § 430.10), also seeking judicial notice that the judgment in the defamation case was filed on March 1, 2004, while Harrington’s original complaint here was filed more than 18 months later, on October 24, 2005. The demurrer asserted the bar of the one-year statute of limitation (§ 340.6) plus vagueness and failure to state a cause of action on any element of professional negligence. Robinson concurrently filed a motion to strike, although we do not find that motion in the record. On March 14, Robinson gave written notice that Harrington had failed to file or serve any opposition to the strike motion or the demurrer, opposition having been due on March 10 (see § 1005, subd. (b) [opposition due at least nine court days before the hearing]).
All unspecified further section references are to the Code of Civil Procedure.
Harrington, a resident of New York, appeared at the hearing, on March 23, with a written “Affirmation in Opposition” in hand that responded to the demurrer. The court’s tentative decision was to grant the motion to strike and sustain the demurrer. The court, reminding Harrington that his pro per status did not excuse compliance with the law and rules, noted Harrington’s lack of timely opposition under section 1005 and apparent failure to notify the court and parties of his intention to appear under California Rules of Court, rule 3.1308, the consequence being that he could not argue.
All rule references are to the California Rules of Court. California Rules of Court were renumbered on January 1, 2007, and former rule 324 was renumbered as rule 3.1308.
This exchange ensued: “The Court: This was a motion to strike and demurrer to portions of the complaint. The Court sustained it.
“Mr. Harrington, did you file opposition? And if so [sic], why not?”
“Mr. Harrington: I did not file it timely, sir. I just flew out here from New York City where I live and I changed my address and I got the papers late because it was forwarded.
“The Court: Did you give the Court the correct change of address?
“Mr. Harrington: No, I have not done that.
“The Court: You need to do that.
“The tentative is going to stand as is. You’re the prevailing party, you [Robinson] prepare the order.
“I would suggest you get advice from somebody about what you do. Since you are representing yourself, as I say, you’re subject to all the same rules and you need to be familiar with both the state and the local rules and the statutes, okay?
“And [rule 3.1308] is one—first of all, if you don’t file papers in opposition then there is no argument, there’s no appearance.
“Mr. Harrington: I have the papers here, like I say.
“The Court: It’s no good. No good. You got to get them in on time.”
“[¶] . . . [¶] Mr. Harrington: Could I submit my papers now?
“The Court: No. It doesn’t work that way. Read the rules. You need to read CCP 1005. Read that section. That section sets forth a long time before hearing when those papers should have been filed.
“And there’s some rules regarding change of address. Make sure you take care of that because you may run into some more problems.
“So, the motion has been granted, as I said. . . .”
The “Affirmation in Opposition,” while not considered, was a combination of argument and declaration. It did not request leave to amend or cite any law beyond two New York cases on summary judgment standards. However, on the statute of limitations question, it urged that Robinson had handled Harrington’s appeal from the defamation judgment and rendered “ineffective assistance” on appeal by filing a faulty notice of election to proceed under former rule 5.1, that had to be amended, thus assertedly tolling the statute until a September 8, 2005 affirmance of the judgment on appeal. Harrington also described why he thought that the evidentiary omission of a “Flight Coupon and Boarding Pass” (exhibit copy attached to his affirmation) at trial had prejudiced him, asserting that this “key evidence” would have prevented the jury from finding that the defendant had used reasonable care to determine the truth or falsity of the defendant’s statements. (See fn. 2, ante.)
B. The First Set-Aside Motion
Harrington’s first “Motion to Set Aside Verdict” is internally dated April 10, 2006 (unspecified further dates are in 2006), but was not filed until May 22, two months after the March 23 demurrer ruling, and, as far as we can tell, had no supporting papers giving grounds—case, statutory or factual—for bringing the motion. Harrington eventually filed a “Reply Affidavit in Support,” on June 6, the eve of a June 7 hearing for which the court had, once more, issued a tentative decision to deny. This filing repeated what had been in his “Affirmation in Opposition” to the demurrer, augmented by some explanations of his tardiness in filing the instant motion (including having the document returned twice by the clerk for his failures to include a fee or to use pleading paper).
At the hearing on June 7, the court construed the motion as being brought either for reconsideration (§ 1008) or relief from default (§ 473), noting also its untimely filing (the basis for the tentative) and a further violation of section 1005. The court found the matter to be “actually before the Court,” despite section 1005, since Robinson had filed opposition, and therefore heard the matter. In the end, however, the court stood by its tentative ruling, adding that a consideration on the merits showed nothing in the motion that met the standards for relief under either section 1008 or section 473. The court also denied a request by Robinson for sanctions. The court again reminded Harrington of the need to comply with California law and the hazard of trying to represent himself. It said, of a representation by Harrington that he had been working as a police officer “ ‘protecting the citizens of New York’ ” (alluding apparently to the two days on which Harrington had claimed he had to oppose the original demurrer after moving and getting the demurrer late) that this “just told me you were working” and was not a sufficient basis for relief.
Harrington closed by saying he would “just resubmit it and do it within . . . 16 court days” (alluding to § 1005). The court expressed concern about “what you’re going to do at this particular point,” with a judgment pending.
C. The Second Set-Aside Motion
Harrington did refile his motion and appeared personally again, on July 13, when the court heard that matter, along with a motion by Robinson for entry of judgment. The tentative ruling was to grant entry of judgment and deny the renewed set-aside motion. The court again explained to Harrington that he had to utilize California law, and it expressed dismay that “The minimal points and authorities that you gave the Court don’t give me a statutory basis under California law for your request that gets beyond the question of whether or not the motion is timely under California law.” The court added: “This in effect is . . ., although you never tell me that in the pleadings, a motion to set aside a judgment. As I said, you give me no statutory basis at all. And the problem even with that is this is a judgment which was entered quite some time ago and it is now untimely.”
II. DISCUSSION
A. The Demurrer/Motion to Strike
In his briefing on the demurrer ruling, Harrington repeats what he presented below, while Robinson briefs the motion to strike (based on the “general damages” allegation of the FAC) as well as several alternative bases for upholding the demurrer, including lack of timely opposition, the lack of adequate pleading of professional negligence, tolling, the litigation privilege, and tactical/ethical reasons for not presenting the assertedly “key” evidence, which Robinson asserts was not a boarding pass at all, but an “e-ticket” that would have hurt his client’s case. Since we need only one ground to uphold the ruling, we focus on the demurrer and leave to amend.
In reviewing a demurrer, we give the complaint a reasonable interpretation and treat the demurrer as admitting all material facts properly pleaded. We do not, however, assume the truth of contentions, deductions, or conclusions of law. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967 (Aubry).) We read the complaint as a whole and all its parts in context (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125), and imply or infer facts from those expressly alleged. (Estate of Lind (1989) 209 Cal.App.3d 1424, 1430; Glaire v. La Lanne-Paris Health Spa, Inc. (1974) 12 Cal.3d 915, 918). We affirm if any ground offered in support of the demurrer was well taken, but find error if the plaintiff has stated a cause of action under any possible legal theory. (Aubry, supra, at p. 967.) We review independently whether a cause of action is stated (Smiley v. Citibank (1995) 11 Cal.4th 138, 146), and review deferentially, for abuse of discretion, whether leave to amend should have been granted (Aubry, supra, at pp. 970-971; Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501). It is an abuse of discretion to sustain a demurrer without leave if a plaintiff shows a reasonable possibility that any defect can be cured by amendment (Aubry, supra, at p. 967), but the burden is on the plaintiff to make that showing (Blank v. Kirwan (1985) 39 Cal.3d 311, 318).
An initial and dispositive question in this ruling is Harrington’s failure to file and serve timely opposition. While Harrington addresses this as possibly excusable neglect for purposes of his later set-aside motions, he does not directly present any argument or authority that the court’s adherence to the requirements of section 1005 or rule 3.1308 were erroneous in the circumstances of the initial demurrer ruling. We observe that this was not a matter of technical noncompliance. It was a complete failure to file any opposition, or otherwise give notice of his opposition, until he showed up on the day of the hearing, after the court’s tentative ruling, with an “Affirmation in Opposition.” The court correctly advised Harrington that his choice to represent himself entitled him to no greater consideration than would be shown an attorney. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) “Thus, as is the case with attorneys, pro. per. litigants must follow correct rules of procedure. [Citations.]” (Id. at p. 1247.) No error or abuse of discretion is shown.
Alternatively, on the merits of the demurrer ruling, we see no error. A cause of action in tort for professional negligence requires (1) a duty to exercise skill generally possessed by those in the profession, (2) a breach of that duty, (3) a proximate causal connection between the negligent conduct and resulting injury, and (4) resulting actual loss or damage. (Budd v. Nixen (1971) 6 Cal.3d 195, 200.) Whatever other arguments might be made, it remains that the FAC contained only bare conclusions of negligent performance and damages, even if we credit the existence of the allegation of “ineffective assistance of counsel—Russell A. Robinson failed to show the jury key evidence during a trial in which he represented me.” The “key evidence” is not identified or explained. The court was solidly within the law in sustaining the demurrer. (Ankeny v. Lockheed Missiles & Space Co. (1979) 88 Cal.App.3d 531, 537.)
As for leave to amend, Harrington never sought leave, even orally, and had not filed anything suggesting how he might cure the deficiencies. The court’s unassisted reading of the FAC provided no basis for divining what could be done to overcome the deficiencies. This not being a case where the pleading survived a general demurrer but was merely subject to a special demurrer for uncertainty or ambiguity, it remained Harrington’s burden to show the manner in which the FAC might be amended. (Association of Community Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal.App.4th 298, 302 & fn. 2.) He showed nothing, and no abuse of discretion appears.
B. The First Set-Aside Motion
The first motion, of course, suffered from the problem of timely notice under section 1005 for the timing of the filing and hearing, and simply put, Harrington offers no showing or authority suggesting that the ruling was erroneous. Also, while the court did construe his motion as one for relief under sections 1008 or 473, there was a further timeliness issue, for section 1008, subdivision (a), requires that relief be sought within 10 days after notice of the order. This motion, finally filed three months after the demurrer ruling, was clearly too late, and even Harrignton’s failed initial attempts to file his motion were beyond the 10-day period. The court’s untimeliness basis is not shown to be error.
The alternative ruling on the merits also stands. Harrington does not show how the delay occasioned by his claimed move and late receipt of the demurrer, after failing to keep the court apprised of a new address, or his having to work for the two days after he received the demurrer, presented new or different facts or circumstances that allowed the court to grant him relief (§ 1008, subd. (a)); nor does he show how those circumstances merited statutory relief as “mistake, inadvertence, surprise or excusable neglect” (§ 473, subd. (b)). Also, section 473 provides, “Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted . . . .” (§ 473, subd. (b).) Harrington did not provide the court with the requisite copy of any amended pleading.
Error or abuse of discretion is not shown in the denial of the first set-aside motion.
C. The Second Set-Aside Motion
Everything said above applies to the renewed set-aside motion, which was even later than the first, provided nothing further on the merits of the statutory showings, and was not accompanied by a copy of an amended pleading.
No error or abuse of discretion is shown.
III. CONCLUSION
The judgment is affirmed.
We concur:
Haerle, Acting P.J., Lambden, J.
A special verdict recited in the defamation judgment showed that the jury answered “yes” to questions whether the defendants made one or more statements accusing Harrington of fraud, reasonably understanding that the statements were about him and indicated commission of a crime. The jury then answered “no,” however, to the question, “Did [they] fail to use reasonable care to determine the truth or falsity of the statement(s)?”
The court alluded apparently to this part of rule 3.1308, which states: “(a)(1) The court must make its tentative ruling available by telephone and also, at the option of the court, by any other method designated by the court, by no later than 3:00 p.m. the court day before the scheduled hearing. . . . If the court has not directed argument, oral argument must be permitted only if a party notifies all other parties and the court by 4:00 p.m. on the court day prior to the hearing of the party’s intention to appear. . . . The tentative ruling will become the ruling of the court if the court has not directed oral argument by its tentative ruling and notice of intent to appear has not been given.”