Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. 37-2008-00082547- CU-OE-CTL, David B. Oberholtzer, Judge.
McCONNELL, P. J.
A self-represented litigant challenges the procedures the trial court employed in determining the litigant's complaint failed to state a claim. We conclude the procedures employed were proper and affirm the judgment.
I
Keith Harris, a self-represented litigant, filed a complaint against the Metropolitan Transit System and the San Diego Transit Corporation (collectively MTS). The complaint generally alleged Harris left his job as a bus driver for MTS because MTS did not provide him with appropriate meal and rest breaks in violation of the collective bargaining agreement covering bus drivers and Industrial Welfare Commission Order No. 9-2001. The case was initially assigned to Judge Ronald Styn.
After Harris served MTS with the summons and complaint, MTS filed a demurrer and motion to strike. The demurrer argued that each of Harris's causes of action failed to state a claim because: (1) the collective bargaining agreement for bus drivers required him to arbitrate his dispute, (2) he failed to comply with the claim presentation requirements in the Government Claims Act (Gov. Code, § 810 et seq.), and (3) his claims did not arise out of a statute as required by the Government Claims Act.
The California Supreme Court adopted the label "Government Claims Act" for these statutes in City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 742, fn.7.
On the same day MTS filed its demurrer and motion to strike, the case was reassigned to Judge David Oberholzer. The notice of case reassignment stated, "All subsequent documents filed in this case must include the name of the new judge and the department number on the first page immediately below the number of the case. All counsel and self-represented litigants are advised that Division II of the Superior Court Rules is strictly enforced. It is the duty of each plaintiff (and cross-complainant) to serve a copy of this notice with the complaint (and cross-complaint)." (Italics added.)
As a result of the case reassignment, the hearing dates for the demurrer and motion to strike were vacated. MTS obtained new hearing dates for the demurrer and motion to strike and served Harris with an amended notice advising him of the new hearing dates. In the meantime, Harris re-served MTS with the summons and complaint because he believed the emphasized portion of notice of case reassignment required him to do so. He also believed re-service was necessary to confer Judge Oberholzer with jurisdiction over the case. Thirty days later Harris filed a request for entry of default, which the court denied. Harris subsequently filed another request for entry of default, which the court again denied.
Between the time Harris filed his second request for entry of default and the time the court denied it, he also filed a motion to overrule and vacate defendant's amended notice of demurrer and motion to strike. Harris argued MTS's amended notice of demurrer and motion to strike did not constitute a proper answer to the second summons and complaint because it did not state the grounds upon which the demurrer and motion to strike were based and it was not accompanied by a memorandum of points and authorities. He further argued MTS's original demurrer and motion to strike became null and void when the court vacated the hearing date for them. Therefore, he argued the court should enter default against MTS. Harris did not contest the merits of the demurrer or motion to strike.
MTS filed a reply brief, objecting to Harris's motion as untimely and requesting the court construe Harris's motion as an opposition to MTS's demurrer and motion to strike. In addition, MTS argued that, because Harris's motion did not address the substance of the demurrer and motion to strike, Harris tacitly conceded he had no factual or legal basis for opposing them. In response, Harris filed a request for the court to take judicial notice MTS had not opposed his motion.
Following oral argument, the trial court sustained the demurrer without leave to amend because Harris had not alleged he had attempted to exhaust the remedies available through the collective bargaining agreement for bus drivers and because he had not alleged compliance with the claim presentation requirements in the Government Claims Act. The trial court denied the motion to strike as moot.
Harris subsequently moved to vacate or set aside the court's decision because the court did not expressly rule on his argument that he was entitled to entry of default since MTS's amended notice of motion did not constitute a proper answer to the second summons and complaint. Although styled as a motion to set aside the judgment under Code of Civil Procedure section 663, the court treated the motion as a motion for reconsideration under Code of Civil Procedure section 1008. The court denied the motion, finding Harris had "failed to identify any facts, circumstances or law which were not addressed at the prior hearing." The court subsequently dismissed Harris's complaint and entered judgment for MTS.
II
On appeal, Harris contends the trial court erred by failing to rule on and grant his two motions to vacate. We conclude there is no merit to this contention.
Preliminarily, we note the record does not show the first motion to vacate was properly calendared and served. The most recent register of actions included in Harris's appendix contains no notation indicating he contacted the court to schedule the motion. In addition, there is no proof of service in the appendix showing Harris served MTS with the motion within the requisite time period. The documents are dated less than 16 court days before the hearing date, suggesting they were untimely. (Code of Civ. Proc., § 1005, subd. (b); Cal. Rules of Court, rule 3.1304(a).) A trial court has the discretion to refuse to consider papers that are untimely. (Cal. Rules of Court, rule 3.1304(d).)
In addition, Harris mistakenly interpreted the notice of case reassignment as requiring him to re-serve the summons and complaint to confer Judge Oberholzer with jurisdiction over the matter. The notice of case reassignment mentions nothing about re-serving the summons or about the need to confer Judge Oberholzer with jurisdiction. Rather, the notice directed Harris to serve MTS with a copy of the notice and the complaint. The objective of this direction is both plain and simple: to ensure MTS received notice that the case had been reassigned to a new judge.
Moreover, as the court explained to Harris, there was no need to re-serve the summons to confer Judge Oberholzer with jurisdiction over the matter. "Jurisdiction is vested by the constitution in the court, not in a particular judge or department. It further provides that there may be as many sessions of the court as there are judges. Whether sitting separately or together, the judges hold but one and the same court. The division into departments is for the convenient dispatch of business. [Citation.] A transfer from one department to another is not a transfer of the jurisdiction of the cause, which remains at all times in the court as a single entity. [Citation.]" (Tubby v. Tubby (1927) 202 Cal.272, 276.)
Harris also mistakenly interpreted the effect of the notice of case reassignment on MTS's demurrer and motion to strike. Specifically, Harris defines "vacate" to mean nullify, cancel, make void, or invalidate. Based on this definition, he interpreted the notice of case reassignment's advisement that "[a]ll future dates are vacated" as meaning the demurrer and motion to strike are "void." Harris's definition of "vacate" is largely correct. (Black's Law Dict. (6th ed. 1990) p. 1548, col. 1 ["Vacate" means "[t]o annul; to set aside; to cancel or rescind"].) Where Harris's interpretation goes awry is his failure to recognize the advisement applied only to "dates." The plain and simple meaning of the advisement is that the hearing dates for any matters scheduled to be heard by Judge Styn, including MTS's demurrer and motion to strike, were cancelled. The advisement had no effect on the substance or efficacy of the demurrer and motion to strike.
Further, Harris mistakenly interprets the California Rules of Court as precluding MTS from rescheduling its demurrer and motion to strike by filing and serving an amended notice of motion. The rules of court require MTS to provide Harris with a "notice of hearing." (Cal. Rules of Court, rules 3.1112(a), 3.1320(c).) MTS's original notice of demurrer and motion to strike fulfilled this requirement. (Code Civ. Proc., § 1010.) When MTS rescheduled these matters before Judge Oberholzer, MTS's amended notice of demurrer and motion to strike likewise fulfilled this requirement. Filing an amended notice is a common and accepted practice for rescheduling the hearing date of a pending motion. (See, e.g., Gogri v. Jack in the Box Inc. (2008) 166 Cal.App.4th 255, 263; Gov. Code, § 70677, subd. (b)(2).) The hearing date in the amended notice supersedes the hearing date in the original notice. (See, e.g., Holtcamp v. States Marine Corp. (1958) 165 Cal.App.2d 131, 135.) The fact that Harris appeared for the hearing on the demurrer and motion to strike and submitted his own papers for the court's consideration demonstrates the amended notice accomplished its purpose.
Finally, Harris mistakenly contends the court was not allowed to treat his first motion to vacate as an opposition to MTS's demurrer and motion to strike and his second motion to vacate as motion for reconsideration. Consistent with its inherent power to manage and control its docket, a court may construe a motion bearing one label as another type of motion. (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 192-193; see also, e.g., Pierson v. Sharp Memorial Hosp. (1989) 216 Cal.App.3d 340, 342-343.) Moreover, as we explained above, because Harris's first motion to vacate does not appear to have been properly calendared or served, the court had the discretion to disregard it. Had it done so, MTS's demurrer and motion to strike would have been unopposed. Instead, the court exercised its discretion to consider the motion and to treat it as an opposition to MTS's demurrer and motion to strike, which provided Harris with an opportunity to be heard on the merits of these matters.
Likewise, Harris's second motion to vacate under Code of Civil Procedure section 663 was infirm because such a motion cannot be used to challenge a ruling on a demurrer. (Payne v. Rader (2008) 167 Cal.App.4th 1569, 1574-1575.) Although the court could have denied the motion on this basis, it chose to exercise its discretion to treat the motion as a motion for reconsideration, which effectively provided Harris a second opportunity to be heard on the merits of the demurrer and motion to strike. Despite having two opportunities to be heard on the merits, Harris failed to demonstrate his complaint stated a claim or that he could overcome the identified defects if the trial court allowed him leave to amend it. Harris also failed to do this in his appellate briefs. Accordingly, we conclude the trial court did not err in its handling of MTS's demurrer and motion to strike or Harris's two motions to vacate.
DISPOSITION
The judgment is affirmed. MTS is awarded its costs on appeal.
WE CONCUR: BENKE, J., NARES, J.