Opinion
C081252
03-07-2017
LUIS MARIN, Plaintiff and Appellant, v. CITY OF STOCKTON, Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 39201500324057CUWMSTK)
Plaintiff Luis Marin filed an amended petition for writ of mandamus against defendant City of Stockton (Stockton), alleging Stockton refused to issue him a business license to operate as a food vendor. Stockton filed a demurrer to the petition. The trial court issued a tentative ruling sustaining the demurrer and providing Marin 15 days to file an amended petition. Neither party made an appearance, nor did Marin file an amended petition within the 15 days. The court's tentative ruling became the order of the court. Stockton filed an ex parte application to dismiss the petition and for entry of judgment, which the trial court granted. Marin appeals. We shall reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Marin filed an amended petition for writ of mandamus on June 5, 2015, alleging Stockton wrongfully deprived him of a business license to operate as a food vendor. Stockton filed a demurrer to the amended petition on July 1, 2015, which was set for hearing on September 29, 2015.
Marin filed his original petition on March 24, 2015. Stockton filed a demurrer on May 14, 2015, with a hearing set for June 18, 2015. Marin filed an amended petition prior to the hearing.
On September 28, 2015, the trial court issued a tentative ruling sustaining Stockton's demurrer and providing Marin 15 days to file an amended petition. Neither party requested a hearing. The tentative ruling became the ruling of the court.
On November 6, 2015, Stockton submitted an ex parte application to dismiss the complaint and for entry of judgment on the basis that Marin failed to file an amended petition within the time allotted. Marin opposed the motion arguing that no service of any order or tentative ruling was made and no appearance was made at the time of the hearing. Following a hearing, the trial court ordered the parties to file supplemental briefs. The parties complied. Marin filed an amended pleading on November 24, 2015.
The trial court issued a tentative ruling on November 25, 2015. The court found: "Having reviewed all papers and authorities cited, the Court grants the Defense motion to dismiss the plaintiff's complaint and enter judgment. CCP section 581(f)(2), Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603.
"The only case Plaintiff cites to is Taliaferro v. Berkin Realty Co. (1959) 176 Cal.App.3d 240, which predates the adoption of California Rule of Court 3.1308, the Tentative Ruling rule, by over 30 years. CRC 3.1308, formerly Rule 324, was adopted in 1992. Where as in this case, the Court issues a tentative ruling and there is no request for oral argument, the Court's tentative ruling becomes the ruling of the Court. Local Rule of Court, 3-113D.
"Having failed to amend the complaint within the time permitted by the Court, this action is subject to dismissal under CCP section 581(f)(2)."
Subsequently, the trial court filed an order granting Stockton's application to dismiss the complaint and for entry of judgment. Marin filed a timely notice of appeal.
DISCUSSION
I.
When a case presents a pure question of law and does not involve a review of disputed facts, we review the trial court's decision de novo. (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191.) We also determine independently the application of statutes to undisputed facts. (International Engine Parts, Inc. v. Feddersen & Co. (1995) 9 Cal.4th 606, 611.)
II.
The trial court determined that California Rules of Court, rule 3.1308, which provides for tentative rulings, provides notice of the court's order on a demurrer where no oral argument is requested after the court issues its tentative ruling. In addition, the court found the time to file an amended pleading begins to run from the date upon which the tentative ruling becomes the order of the court. Therefore, Marin's filing of an amended pleading was untimely.
Under California Rules of Court, rule 3.1308(a)(1), a "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." In the present case, Stockton's demurrer was filed on July 1, 2015, and set for hearing on September 29, 2015. On September 28, 2015, the trial court posted its tentative ruling sustaining Stockton's demurrer. No hearing was requested by either party and no party appeared at the hearing. Therefore, Stockton contends, the tentative ruling became the trial court's order sustaining Stockton's demurrer under California Rules of court, rule 3.1308(a)(1).
See also Superior Court of San Joaquin County, Local Rules, rule 3-113(D).)
The Notice Requirement of Code of Civil Procedure 472b
The tentative ruling becomes the ruling of the court, but Code of Civil Procedure section 472b provides: "When a demurrer to any pleading is sustained . . . , and time to amend or answer is given, the time so given runs from the service of notice of the decision or order, unless the notice is waived in open court, and the waiver entered in the minutes." Marin acknowledges the demurrer was granted on September 29, 2015, and that neither party requested a hearing so no appearance was made but argues the 15-day period did not begin to run until notice was given. Here, no notice was given, nor was notice waived in open court. Therefore, according to Marin, the 15-day period never began to run. In support, Marin cites Taliaferro v. Bekin Realty Co. (1959) 176 Cal.App.2d 240 (Taliaferro).
All further statutory references are to the Code of Civil Procedure unless otherwise designated.
As the trial court noted, Taliaferro predates the modern California Rules of Court, including rule 3.1308. As relevant here, the San Joaquin County Superior Court adopted local rule 3-113(D), which tracks California Rules of Court, rule 3.1308. In effect, California Rules of court, rule 3.1308 provides a deadline through the tentative ruling system: the trial court issued its tentative ruling and granted Marin 15 days to amend his petition. Marin failed to do so within the 15-day period.
Superior Court of San Joaquin County, Local Rules, rule 3-113(D) provides: "Judges assigned to civil law and motion matters will prepare a tentative ruling for each matter on calendar and a ruling will be available to counsel and litigants on the first court day before the scheduled hearing. If the tentative ruling is satisfactory to counsel, he or she need not appear and the tentative ruling will become final. If counsel or self-represented litigants (SRL) wishes to appear, he or she may do so only after appropriately notifying the court and other counsel or SRL of that intent. [¶] The tentative ruling shall become the ruling of the court unless there is opposition by counsel or SRL. Counsel or self-represented litigants is responsible for reviewing the tentative ruling and notifying the superior court . . . and all other counsel and self-represented litigants no later than 4:00 p.m. on the day preceding the scheduled hearing of his or her intent to appear to argue. [¶] The tentative ruling will be posted to the court's website . . . . Counsel or self-represented litigants may access the court's website beginning at 1:30 p.m. on the court day immediately preceding the date for which a matter is calendared."
However, California Rules of Court, rule 3.1312(a) provides in pertinent part: "Unless the parties waive notice or the court orders otherwise, the party prevailing on any motion must within five days of the ruling, serve by any means authorized by law . . . a proposed order for approval as conforming to the court's order. Within five days after service, the other party or parties must notify the prevailing party as to whether or not the proposed order is so approved. The opposing party or parties must state any reasons for disapproval." It is undisputed that Stockton did not comply with this notice requirement.
Stockton acknowledges California Rules of Court, rule 3.1312(a) and makes no effort to bring the procedures followed by the trial court within the express language of the rule. Rather, Stockton's argument is that notice of the tentative ruling is tantamount to notice of the final ruling inasmuch as the tentative ruling becomes the final ruling in due course unless the court directs oral argument or a party files a notice of appearance. According to Stockton: "This process can be long and tedious, depending on whether service can be easily accomplished, and would effectively eviscerate a trial court's discretion in setting a short time frame for amendment. Rather than promoting judicial efficiency, Appellant's solution to our attempt to reconcile the statute with the rules promotes delay. Moreover, an extension of time to amend a complaint would serve as a windfall and reward for the plaintiff who elects to sit on his hands, as did Appellant, and fails to promptly move his own case along by filing an amended pleading."
Stockton asserts that Marin "sat on his hands." Marin filed his amended petition about a month after the 15-day period specified by the trial court. --------
As Stockton points out, a dismissal lies where "after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend within the time allowed by the court and either party moves for dismissal." (§ 581, subdivision (f)(2).) Here, Marin failed to amend his petition within the 15 days allowed by the trial court and Stockton moved for dismissal. The trial court granted the motion, based on the 15-day period provided in the trial court's tentative ruling.
Reconciling Court Rules and Code of Civil Procedure Section 472b
Section 472b, a statute which, unlike court rules on tentative rulings generally, deals specifically with rulings on demurrers, states clearly and unequivocally that, when a demurrer is sustained and time to amend is given, the time so given runs from the service of the notice of the decision or order, unless the notice is waived in open court and the waiver is entered in the minutes. California Rules of Court, rule 3.1312(a) provides that the prevailing party, within five days of ruling, must serve by any means authorized by law a proposed order for approval. Here, the trial court issued a tentative ruling, which under California Rules of Court, rule 3.1308(a)(1) becomes 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. However, Stockton, as the prevailing party, did not serve notice on Marin of the trial court's tentative ruling.
Stockton argues we should consider California Rules of Court, rule 3.1308(a)(1) to provide "automatic notice" under the tentative ruling system and that "the California Rules of Court merely bring the concept of 'notice' into the modern age." According to Stockton, this case "offers the court the ability to acknowledge a streamlined and fundamentally fair alternative" to the notice provisions of section 472b. We are not convinced. Perhaps this expansive concept of notice is wise as a policy matter, but it is not enshrined in the language of section 472b. Whatever we might think of the wisdom of the trial court's policy statement, any "streamlining" of notice provisions pertaining to orders sustaining demurrers with leave to amend must be done by the Legislature. It cannot be done by judicial rule makers or by this court in derogation of clear statutory language.
Nor has any case embraced the notions expressed by Stockton. Both the trial court and Stockton cite Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603. (Leader). In Leader the trial court sustained the defendants' demurrer with leave to amend within 20 days. The plaintiff failed to file an amended complaint within the time specified by the court and did not file an amended complaint until more than a month after the court specified deadline. (Id. at pp. 607-608.) The court directed the plaintiff to file a motion for leave to file the amended complaint. The court denied the motion and granted the defendants' motion to dismiss. (Id. at pp. 610-611.) The appellate court affirmed, stating "to obtain the court's permission [to file the amended complaint after the court ordered deadline] plaintiffs were required to file a noticed motion for leave." (Id. at p. 613.)
Stockton argues: "The fact that no notice of entry of order was served was immaterial to the Leader court; what mattered was that plaintiff failed to file an amended pleading within the time specified by the trial court in its ruling on the demurrer." However, Leader does not address whether or not notice of entry was served, whether the plaintiff was in court at the time of the ruling, or whether or not notice was waived.
The concept of notice carries with it the aim of insuring all parties to a matter are informed and apprised of the state of the litigation. Implicit in notice is the requirement of communication, an element not present in the case before us. Reading the California Rules of Court in conjunction with section 472b and section 581, subdivision (f)(2), we find the trial court's tentative ruling did not begin the running of the 15-day statute of limitations absent notice to Marin.
DISPOSITION
The judgment is reversed. Marin shall recover costs on appeal.
RAYE, P. J. We concur: MURRAY, J. RENNER, J.