Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCV-235850
Pollak, J.
Plaintiff Joshua Le Master filed suit against the Santa Rosa City School District (the district) and various of its officials, including Brian Tolson (collectively, the district defendants), and two attorneys who represented Le Master in a previous action against the district, alleging that the district defendants had failed to accommodate his learning disability and that his attorneys had not adequately represented him. The trial court sustained a demurrer to his first amended complaint with leave to amend. After expiration of the statutory time to amend, the district defendants wrote the trial court, without copying Le Master, requesting that the case be dismissed and the court complied. Le Master’s subsequent motion to set aside the judgment was denied. Because defendants were required to give Le Master some notice of the request for dismissal, the trial court erred in granting that request and the judgment of dismissal must be reversed.
Background
On November 22, 2004, Le Master filed in propria persona a complaint against Tolson and as many as 50 Doe defendants, alleging fraud, constructive fraud, negligent misrepresentation, intentional infliction of emotional distress, and negligent infliction of emotional distress. The complaint alleged that Le Master is disabled and attends school in the district “with the express intention that testing and other assessment be accomplished for the purpose of accurately and adequately identifying plaintiff’s disabilities, such that provision of FAPE would be properly effected on behalf of plaintiff.” The complaint alleged that the district defendants prevented Le Master from receiving appropriate educational opportunities, and that they actively attempted to undermine his attempts to secure such an education. The district defendants demurred, but before the hearing on the demurrer Le Master filed a first amended complaint. This complaint alleged the same causes of action, but was 95 pages long and attached numerous exhibits. It also named an additional 13 defendants, including Lawrence Siegel and Robin Brennan, two attorneys “hired during 2001 by the plaintiff’s (late) grandfather for the purpose of negotiating service provision to the plaintiff.” In his August 2, 2005 case management statement, Le Master stated that he planned to file a second amended complaint “in order to correct numerous clerical defects in the pleadings, to add negligence as a cause of action, and to specifically state the various defendants’ respective involvement in the various causes of action.”
The acronym FAPE is defined in the complaint as “a Free and Appropriate Public Education.”
Since the resolution of this appeal turns exclusively on procedural issues, we summarize only briefly the factual background of the litigation as it appears in Le Master’s case management statement. “As a result of the misrepresentations of the defendants, and their failure to discharge mandatory duties imposed by special education law, the plaintiff suffered the denial of a free and appropriate public education in the least restrictive environment, was repeatedly punished for behavior associated with untreated, previously identified disabilities, was disallowed from three years of high school, and was inappropriately placed in a residential setting. That placement was made by the Sonoma County Juvenile Court and was based upon misinformation disseminated over an extended period of time by the defendants; the placement was engaging in child abuse, which allegations were sustained by California Community Care Licensing. The plaintiff and numerous other boys were physically injured, and those injuries are ongoing for the plaintiff at this time; the plaintiff has also lost social, educational, and occupational opportunities.” The record reflects that this is not the first action that Le Master has prosecuted against the district. Needless to say, we express no opinion concerning the merit of Le Master’s claims or of the defenses asserted thereto.
In September 2005, separate demurrers to the first amended complaint were filed by the district defendants and by Siegel and Brennan. On December 21, 2005, the trial court sustained the demurrer of Siegel and Brennan with leave to amend, and on December 27, the trial court sustained the demurrer of the district defendants with leave to amend, in neither case specifying the time within which an amendment was required to be filed. On January 9, 2006, the district defendants served on Le Master notice of entry of the order on their demurrer. On February 21, 2006, counsel for the district defendants wrote to the trial court asking the court to enter a judgment of dismissal, citing California Rules of Court, rule 325(e) and stating, “It has now been six weeks since the notice of entry of order was filed with this court and served on plaintiff. Plaintiff has not attempted to file an amended pleading.” Inexplicably, no copy of this letter was sent to Le Master. However, the district defendants apparently did send Le Master an unsigned copy of the proposed judgment that was included with the letter to the court, which was neither labeled as “proposed” nor accompanied by any form of explanation.
The court ruled: “On the 1st cause of action, plaintiff failed to plead the alleged misrepresentations with particularity required to state a cause of action for fraud. On the 2nd cause of action the complaint fails to state facts sufficient to state a cause of action for constructive fraud. On the 3rd cause of action facts were not pled showing that defendants made a misrepresentation. On the 4th cause of action, plaintiff has not pled facts establishing extreme and outrageous conduct. On the 5th cause of action plaintiff has failed to state facts sufficient to establish that cause of action.”
The court ruled: “Defendants’ demurrers to the entire complaint for failure to state a cause of action due to failing to comply with the government claims statute and filing after the statute of limitations period are sustained with leave to amend. Demurrer based on res judicata is overruled. General demurrers to the 1st, 2nd, 3rd, and 4th cause of action are sustained with leave to amend. A motion to strike, not demurrer, is the proper vehicle to reach unsupported punitive damages pleadings. Demurrer on those ‘grounds’ is therefore overruled.”
Rule 5-300(B) of the California Rules of Professional Conduct reads in part: “A member shall not directly or indirectly communicate with . . . a judge . . . upon the merits of a contested matter pending before such judge . . . , except: . . . [¶] . . . [¶] (4) In writing with a copy thereof furnished to such other counsel . . . .”
On February 23, 2006, Le Master filed “Plaintiff’s motion for leave to file second amended complaint for damages, and for reclassification . . . .” On the same day he filed a case management statement in which he noted, “Most of the defendants have not been served because plaintiff must have the approval of the court to file his motion for leave to amend.” The statement also contained the assertion that “a motion for leave to amend is pending.”
On March 1, 2006, Siegel and Brennan served Le Master by mail with a copy of the order sustaining their demurrer.
On March 10, 2006, the court signed and on March 13 entered the judgment of dismissal, reciting that the court had sustained the district defendants’ demurrer and that no motion for reconsideration had been made by Le Master, and dismissing the first amended complaint “with prejudice and in its entirety.” On March 21, the district defendants served Le Master with a notice of entry of the judgment. On March 29, Le Master filed an “application for clarification, or in the alternative, for reconsideration, of order for judgment of dismissal.” In that application, Le Master stated that after the demurrers were sustained, he “understood that I had ten days to amend upon issuance of the order of the court.” He also stated, “The notice of entry of order [of the judgment of dismissal] was mailed to me on 21 March, and I received it this evening (28 March).” The record does not reflect that the trial court ever ruled on this motion.
On May 4, 2006, Le Master filed a “motion for order to set aside default judgment of dismissal.” In that motion, Le Master relied on Code of Civil Procedure section 473, subdivision (b), arguing that the judgment “was entered as a result of plaintiff’s mistaken belief and excusable neglect surrounding deadlines and procedure.” On July 28, the court denied the motion to set aside the judgment, ruling that “plaintiff has not established grounds to set aside the March 10, 2006, dismissal.”
On August 1, 2006, Le Master filed a notice of appeal from the “judgment of dismissal after an order sustaining demurrer” entered on March 10, 2006.
Discussion
Timeliness of the appeal
Although the issue is not raised by the parties, because the timely filing of a notice of appeal is essential to confer jurisdiction on this court (Cal. Rules of Court, rule 8.104(b); Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 666-667), and because Le Master’s notice of appeal was filed substantially more than 60 days after the judgment was entered, we first note the basis of our jurisdiction. Rule 8.104(a)(2) provides that a notice of appeal must ordinarily be filed “60 days after the party filing the notice of appeal serves or is served by a party with a document entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the judgment, accompanied by proof of service.” Nonetheless, on May 4, 2006, within 60 days of service of notice of the judgment, Le Master filed a motion to set aside the judgment based on his mistake, inadvertence, surprise, or excusable neglect under Code of Civil Procedure section 473, subdivision (b). This motion extended the time for appeal from the judgment until the earliest of 30 days after service of notice of the denial of that motion, 90 days after the filing of the motion, or 180 days after entry of the judgment. (Rule 8.108(b); Passavanti v. Williams (1990) 225 Cal.App.3d 1602.) Since the notice of appeal was filed within all of these periods, the appeal is timely.
Further rule references are to the California Rules of Court.
Except where otherwise specified, further statutory references are to the Code of Civil Procedure.
Since the appeal has been taken from an appealable judgment (§ 904.1, subd. (a)(1)), and is timely, we need not be concerned with respondents’ arguments as to why Le Master may not challenge the ruling denying his motion to set aside the judgment. We address solely whether the trial court was justified in dismissing the action based on Le Master’s failure to timely amend his pleading, without giving Le Master notification that the district defendants were requesting the court to do so.
Entry of judgment
The principal question presented by this appeal is whether Le Master was entitled to notice of the district defendants’ request for the entry of judgment dismissing the action after he failed to file an amended complaint within the time provided and, if so, what form of notice. The district defendants read Le Master’s pro per brief as contending that the defendants were required to seek dismissal by a noticed motion in accordance with sections 1005, 1010 and 1013. The district defendants contend that no notice of any kind was required. Neither contention is correct. A noticed motion was unnecessary, but the district defendants were required to give Le Master at least the informal notice that the Rules of Court require for an ex parte application.
The time within which to file an amended complaint after the trial court has sustained a demurrer runs from the time that notice of entry of the order sustaining the demurrer is served on the plaintiff. (§ 472b.) If the trial court does not specify a time to file an amended complaint, the plaintiff has 10 days from service of notice of entry of the order. (Rule 3.1320(g).) Service by mail extends the time by five days. (§ 1013, subd. (a).) If no amended complaint is filed within the time allowed, section 581, subdivision (f)(2) provides: “The court may dismiss the complaint as to that defendant when: [¶] . . . [¶] (2) . . . after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal.” Rule 3.1320(h) provides, “A motion to dismiss the entire action and for entry of judgment after expiration of the time to amend following the sustaining of a demurrer may be made by ex parte application to the court under Code of Civil Procedure section 581(f)(2).”
Prior to the reorganization of the California Rules of Court that became effective January 1, 2007, the provision was numbered 325(f).
Relying on Wilburn v. Oakland Hospital (1989) 213 Cal.App.3d 1107 and Sadler v. Turner (1986) 186 Cal.App.3d 245, the district defendants contend that no notice to Le Master of the request for dismissal was necessary. Those cases, and some earlier ones, do contain broad language to that effect. However, as the Court of Appeal pointed out in Datig v. Dove Books, Inc. (1999) 73 Cal.App.4th 964 (Datig), those cases were addressing whether a motion to dismiss following the failure to timely file an amended complaint requires a formal noticed motion. (Id. at p. 978, fns. 12, 13.) It does not, and rule 3.1320(h) authorizes an ex parte application for this purpose. But, as the court held in Datig, an ex parte application nonetheless must be submitted in accordance with what is now rule 3.1203 (formerly rule 379), which provides that “A party [seeking] an ex parte order must notify all parties no later than 10:00 a.m. the court day before the ex parte appearance, absent a showing of exceptional circumstances that justify a shorter time for notice.” In Datig, a dismissal was requested and entered without any notice to the plaintiff even though an amended complaint had been filed. In reversing, the Court of Appeal observed, “What happened in this case, and the tremendous waste of time and judicial resources it represents, is a paradigm example both of why notice is necessary, and of the salutary effect the judicial system obtains by requiring such notice before taking action under circumstances in which hearing both sides may be useful.” (Datig, supra, at p. 978.) Weil and Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) paragraph 7:150a, page 7-58 instructs that although a request for the entry of dismissal following the failure to timely amend may be presented by an ex parte application, “Informal notice to opposing counsel required: However, the requirement of [rule 3.1203] that, prior to making an ex parte application to the court, informal notice be given to opposing counsel does apply.”
In a footnote of their appellate brief, the district defendants assert four reasons for which they contend Datig does not apply here. None has merit. First, they argue that Le Master did not raise the issue in his opening brief. However, although Le Master did not cite the Datig decision, his brief does cite rule 3.1320(h) and certainly complains of the failure to have provided him any notification that dismissal was being requested.
Secondly, the district defendants point out that while the ex parte letter to the court requesting dismissal “was not copied to plaintiff, the proposed judgment was served on the plaintiff the same day as the letter was sent.” While this fact would seem to confirm that the failure to apprise Le Master of defense counsel’s ex parte communication with the court was not inadvertent, aggravating the violation of the rules of professional conduct (see fn. 5, ante), it was hardly sufficient to apprise the pro per party what was transpiring and to give him an opportunity to oppose defendants’ application. The document that was served on Le Master was not labeled as a proposed judgment, it contained no signature, and it was accompanied by no explanation.
Third, the district defendants contend that Le Master’s subsequent application for relief under section 473 “raised the issue of the ex parte letter and other matters relating to the judgment.” Elsewhere in their brief, the district defendants point out that “plaintiff does not appeal the denial of his section 473 motion.” In all events, the order denying the section 473 motion sheds little light on the court’s reasoning. Certainly there is no indication that the court considered the sufficiency of Le Master’s proposed amended complaint that accompanied his pending motion for leave to file the second amended complaint.
Finally, the district defendants assert that the failure to give Le Master notice resulted in no prejudice because “unlike the plaintiff in Datig, no amended pleading was filed by the plaintiff in a timely manner.” However, when the court dismissed the action there was on file a motion for leave to file the amended complaint, accompanied by a copy of the proposed pleading. Le Master correctly believed that he needed permission to file the proposed amended complaint because it added new parties. (People ex rel. Dept. of Pub. Wrks. v. Clausen (1967) 248 Cal.App.2d 770, 785-786.) Although the motion was dated January 23, 2006, it was not filed until February 23, and was unquestionably untimely. However, had Le Master been advised that the court was being requested to dismiss the action, he could have, and undoubtedly would have, brought the proposed amended complaint to the court’s attention. The court would then have been in position to evaluate the sufficiency of the new pleading, and consider that in determining whether its untimeliness justified dismissal of the action. Indeed, the court might simply have directed that the proposed second amendment be filed, in which case a noticed motion would have been necessary before the action could be dismissed. (Rule 3.1320(i) [“If an amended pleading is filed after the time allowed, an order striking the amended pleading must be obtained by noticed motion under . . . section 1010”].)
In short, the court erred in dismissing the action before Le Master was given “even the minimal notice required by [rule 3.1320(h)] upon ex parte application” (Datig, supra, 73 Cal.App.4th at p. 978, fn. 13) and thus an opportunity to present his arguments as to why the court should not do so. The judgment of dismissal therefore must be reversed. Upon remand, the second amended complaint should be deemed filed and the court will be in position to consider either a motion to dismiss, if defendants should choose to file such a motion as provided by rule 3.1320(i), or any other appropriate challenge the defendants may seek to make to the sufficiency of the second amended complaint.
In view of this disposition, we need not reach the other procedural issue presented: whether the dismissal was effective as to Siegel and Brennan, who did not request that the action be dismissed as to them, and whose notice of the entry of the order sustaining their demurrer may not have been sent to the correct address.
Disposition
The judgment is reversed and the matter is remanded to the trial court for further proceedings.
We concur: Parrilli, Acting P. J., Siggins, J.