Opinion
B193512
9-4-2008
JIN RIE, Plaintiff and Appellant, v. RANG H. KANG et al., Defendants and Respondents.
Jin Rie, in pro. per., for Plaintiff and Appellant. No appearance on behalf of Respondents.
Not to be Published
Jin Rie (appellant) appeals from a final judgment dismissing his complaint against Rang H. Kang (Kang) and Bong Hun Yi (Yi) (collectively respondents) with prejudice. We affirm.
CONTENTIONS
Appellant contends that the trial court abused its discretion by: (1) denying appellants motion to amend the complaint; (2) denying appellants ex parte application for a continuance of trial; and (3) dismissing the action with prejudice pursuant to Code of Civil Procedure section 581, subdivision (d).
All further statutory references are to the Code of Civil Procedure unless otherwise noted.
FACTUAL BACKGROUND
Appellant was the owner of a four-unit property located at 110 N. Berendo St., Los Angeles (the property), from November 1992 through March 2005. Appellant operated a business, East West Institute, out of the property. Appellant occupied two units of the property for his residence, where he lived with his family, plus an office for his business.
Appellants statement of facts provides no citations to the record. Respondents have not filed a responsive brief in this appeal. Our description of background facts is taken from appellants opening brief and our own review of the record.
On or about March 29, 2005, appellant sold the property to Yi. According to appellants complaint, the sale was conditioned on Yis agreement that appellant be allowed to continue to rent the two units he occupied for his residence and office. However, Yi apparently asked appellant to remove a large sign advertising his business. Appellant explains: "Yi demanded a minor amendment . . . [for] insurance purpose[s], which was that the big signage only on the yard . . . be temporarily taken off." A small sign on the front door remained. Yis testimony at trial confirmed that there was a sign in the yard when escrow opened, but before escrow closed appellant removed the sign because, "if it was a commercial property, the insurance premium would be higher. So that is why [appellant] removed the sign."
The court summed up Yis testimony as follows: "[I]n an effort to get around the insurance laws of the State of California, they removed the sign. That is what he said."
On or about June 29, 2005, Yi sold the property to Kang. Yi and Kang provided conflicting testimony as to whether Yi informed Kang that appellant was operating a business at the property. Yi stated that he informed his agent of appellants business however, Kang testified that at no time during escrow was she informed that there was a business operating at the property. She testified that the first time she learned of appellants business was after escrow closed, when she received a phone call from appellant stating that "he had an agreement with the previous owner of the property that the sign would only be temporarily down and . . . he was going to put the sign back up."
During the sale of the property from Yi to Kang, there was an understanding between the parties real estate agents that two of the units in the property would be vacant. However, only one unit was vacant, therefore Kang was credited $8,000.
On or about September 2, 2005, Kang began an unlawful detainer proceeding against appellant (first eviction case). Kang was unsuccessful. However, Kang commenced a second eviction case against appellant, and prevailed. On June 14, 2006, appellant was evicted from the property. After his eviction, appellant was not able to access his personal property until July 29, 2006.
The precise reasons for the eviction are unclear from the record. Bo Young Im, Kangs real estate agent, testified that Kang was always planning to evict appellant in order to remodel the building. However, Kangs testimony suggests that she was motivated by appellants refusal to take down the sign which he had put back up on the lawn. Appellant represents in his brief that the second unlawful detainer action was for nonpayment of rent.
PROCEDURAL HISTORY
Appellant filed this action on September 22, 2005. At the time, appellant was still living at the property, but Kang had filed the first eviction case against him. His complaint alleged that respondents breached their agreements with him by repudiating their contractual obligations to permit him to continue using the property to operate his business. He stated causes of action for breach of contract, constructive eviction, breach of implied covenant of quiet enjoyment, interference with economic advantage, fraudulent concealment, and declaratory relief. Yi and Kang filed cross-complaints against each other seeking indemnity and attorney fees.
Appellant represents in his brief that appellant "currently has three other civil actions against Respondents." We granted appellants request for judicial notice of the first amended complaint in Rie v. Kang et al., Los Angeles County Superior Court case No. BC355792, filed August 31, 2006. In that case, appellant alleged causes of action against Kang, Yi, and Kangs husband Jonathan Kang for damages related to appellants inability to access his personal property between the date of his eviction in June 2006, through July 29, 2006. He set forth causes of action for violation of Civil Code section 1965, conversion, abuse of process, intentional infliction of emotional distress, intentional interference with economic advantage, breach of agreement, trespass to chattel, and negligence.
The cross-complaints are not provided in the record on appeal. However, the trial testimony makes it clear that these cross-complaints were filed.
On July 6, 2006, appellant filed his motion to amend the complaint. Appellant claimed that his initial complaint had been "urgently and hurriedly" filed on September 22, 2005, and that he had planned to revise and modify it. He sought to add numerous facts as well as causes of action for malicious prosecution and negligence. In addition, he sought to revise the first cause of action for breach of contract and the sixth cause of action for fraudulent concealment.
On July 17, 2006, appellant filed an ex parte application to continue trial. Appellant sought to continue the trial date because: (1) Yis counsel "unfairly" delayed Yis deposition; (2) the court needed to consider the amended complaint; and (3) the Kang family "maliciously intended to hurt my legal cases, including this one, by converting personal properties still until now"; and (4) "the current status [of appellant] is not usual and he cannot do his best [legal work] including hearings and trials." The matter was heard and denied on the same date. The reason for the courts denial of the application is not set forth in the minute order, and a reporters transcript of the hearing has not been provided to this court.
Appellant refers to the time period between June 14, 2006 and July 29, 2006, as the "absent period." During this time, appellant was forced to relocate due to the eviction. Appellant could not get to his personal property including "refrigerator, kitchenware, computers, printers, copiers, tools, documents, [and] furniture," and could not "use internet, emails, phone lines, etc., which were still in Unit 4 of the [property]."
On July 27, 2006, appellants motion to amend the complaint was called for hearing and denied. The court noted that unless jury fees were posted, the cause would proceed as a non-jury trial on August 2, 2006.
While the record before us is incomplete, we note that two other orders were entered by the trial court against appellant in July 2006: (1) an order dated July 19, 2006 granting Yis motions to compel discovery responses and ordering monetary sanctions; and (2) an order dated July 24, 2006 granting Kangs motion for evidentiary sanctions on the ground that appellant failed to respond to Kangs production request and special and form interrogatories. The second order specifically prohibited appellant from introducing any evidence at trial which would have been responsive to those discovery requests.
The matter proceeded to trial on August 2, 2006. Appellant failed to appear for trial. Respondents moved to strike the complaint and dismiss the action on the basis of appellants failure to appear. The court agreed, and concluded that the matter should be dismissed with prejudice pursuant to section 581, subdivision (d) on the ground that appellant "abandoned by not even showing up." Trial on the cross-complaints commenced. However, on the first day of testimony, the cross-complainants reached a "full and complete" settlement in favor of Kang, and the cross-complaints were dismissed.
On August 7, 2006, the court filed its notice of judgment on appellants complaint, confirming that the complaint was dismissed in its entirety with prejudice. On August 17, 2006, appellant filed his notice of appeal.
DISCUSSION
I. Standard of Review
The applicable standard of review for all of appellants claims of error is abuse of discretion. (See Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 486-487 [trial courts denial of a motion to amend the complaint is reviewed for abuse of discretion]; Volkering v. Allen (1950) 96 Cal.App.2d 804, 807 [denial of motion to continue is "a matter of judicial discretion with which there should be no interference unless an abuse of discretion is established"]; Gitmed v. GM Corp. (1994) 26 Cal.App.4th 824, 827 [courts decision to dismiss pursuant to section 581 rests in the sound discretion of the trial court and will not be disturbed absent an abuse of discretion].)
Under the abuse of discretion standard, we give "abundant deference to the trial courts rulings." (People v. Jackson (2005) 128 Cal.App.4th 1009, 1018.) A trial courts exercise of discretion will not be disturbed on appeal unless the court exercised it in an arbitrary, capricious, or patently absurd manner resulting in a manifest miscarriage of justice. (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1434.) "It is often said that a trial courts exercise of discretion will be reversed only if its decision is `beyond the bounds of reason. [Citation.]" (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 393.) "`Action that transgresses the confines of the applicable principles of law is outside the scope of discretion" and constitutes an abuse of discretion. (Ibid.) Rulings within the trial courts discretion will not be disturbed unless "`"a manifest and unmistakable abuse of discretion clearly appears." [Citation.]" (People v. Davis (1995) 10 Cal.4th 463, 524.)
With these principles in mind, we turn to appellants specific claims of error.
II. Motion to Amend the Complaint
Appellants motion to amend the complaint was filed on July 6, 2006 — over nine months after his initial complaint was filed, and less than a month before trial was scheduled to begin. In his motion to amend, appellant claimed that the initial complaint had been filed "urgently and hurriedly," and that he had planned to modify it in February or March of 2006. In his declaration accompanying the motion to amend, appellant stated that the reason the complaint was filed so hurriedly was to prevent appellants eviction. The trial courts order denying appellants motion to amend the complaint, which was filed a week before trial began, does not specify the courts reasons for its decision to deny the motion.
The amendments that appellant sought to make mainly concerned events surrounding appellants eviction, such as alleged "perjuries and abuse of process and other torts." For example, appellants proposed new fifth cause of action for malicious prosecution suggests that the Kangs had a malicious ulterior motive in instituting the eviction proceedings. In addition, appellant claimed that "[t]his eviction and all the troubles from this eviction" were caused by alleged "crimes" such as "perjuries, frauds, conspiracies, etc." purportedly committed by the respondents and other involved individuals.
Appellant noted that since June 13, 2006, through the date of the filing of the motion, appellant was "absent or seriously influenced by this eviction process." Among other things, appellant spent one day in jail and seven days in hotels.
Appellant has noted several circumstances under which a trial court may properly allow an amendment to a pleading: to correct the status of a party (Olsen v. Lockheed Aircraft Corp. (1965) 237 Cal.App.2d 737, 741; to correct admissions in a pleading that were the result of mistake or inadvertence (Meyer v. State Board of Equalization (1954) 42 Cal.2d 376, 386; to amend a cause of action that is deficient (Cooper v. Equity Gen. Ins. Co. (1990) 219 Cal.App.3d 1252, 1263; or to allege a new cause of action based on the same general set of facts (Glaser v. Meyers (1982) 137 Cal.App.3d 770, 776-777). However, appellant was not trying to make any of the types of amendments listed above. Instead, appellant attempted to incorporate new causes of action based on entirely new facts which occurred after the action was filed. To include them in the matter before the trial court would unnecessarily complicate the issues and delay trial of the matter, which was set to begin in less than a month. (See Magpali v. Farmers Group, supra, 48 Cal.App.4th at p. 486 [affirming trial courts denial of request for leave to amend complaint on eve of trial where amendments raised new allegations and new cause of action]; Estate of Murphy v. Gulf Ins. Co. (1978) 82 Cal.App.3d 304, 311 [no abuse of discretion in trial courts "refusal to broaden the issues" where "the proposed amendment [to the complaint] opened up an entirely new field of inquiry without any satisfactory explanation as to why this major change in point of attack had not been made long before trial"].)
The case that appellant filed against respondents on August 31, 2006, which appellant refers to as "the Conversion Case," lists the related cases that were pending at that time. They include a case which appellant refers to as "the Perjury Case," which appellant suggests is "closely related" to this matter (appellant refers to this matter as the "Breach Case"). Thus it appears that appellant filed a separate action to pursue his perjury claims against respondents.
Under the circumstances, we find that appellant has not established that the ruling was an abuse of the courts discretion.
III. Motion for Continuance of Trial
Appellants ex parte application to continue trial sought a continuance of "at least [six] months." Appellant stated that he needed a continuance because: (1) "Yis counsel unfairly delayed the deposition on Yi"; (2) the court needed to consider the proposed amended complaint; (3) the Kang family had converted appellants personal property, which appellant could not access at the time appellant filed the ex parte application; and (4) appellants status at the time, as a transient individual, living in jail, hotels and "other property" prevented him from preparing for trial. Appellant indicated that he felt that his mental status was "insane, temporarily or partially, since June 13, 2006 until now."
Because we have found that the trial court did not err in denying appellants motion to amend his complaint, we consider this factor to be irrelevant to our consideration of appellants application to continue trial.
Again, we have not been provided with a transcript of the hearing on appellants ex parte application, which took place on July 17, 2006. The courts order simply indicates that the matter was heard and argued, the court read and considered appellants documents, and the application was denied. However, it is appellants burden to show that the ruling constituted an abuse of the courts discretion, and again we find that appellant has failed to meet this burden.
We first turn to appellants claim that Yis counsel "unfairly" delayed Yis deposition. According to his declaration, appellant first noticed Yis deposition on March 24, 2006. He set the deposition date as April 28, 2006. For reasons that are not clear, the deposition was called off on the date of the deposition, and appellant demanded reimbursement from Yi. On April 29, 2006, appellant filed a second deposition notice, scheduling the deposition for May 12, 2006. On May 9, 2006, Yis counsel objected to the date of the deposition. On May 11, 2006, appellant noticed the deposition for June 6, 2006.
The record does not indicate whether the deposition went forward on this date. However, because appellant has not indicated otherwise, we assume that it did.
While we do not sanction Yis delay of approximately six weeks, we find that appellant has failed to show that this delay prejudiced him such that a continuance of trial was necessary. In fact, appellant has failed to set forth any specific facts regarding information learned at the deposition that required further discovery or caused prejudice. The deposition date of June 6, 2006, left appellant ample time to prepare for the August 2, 2006 trial date.
We next consider appellants third and fourth stated reasons for continuance of trial. Those reasons, including appellants inability to access his personal property and appellants transient status, resulted from appellants eviction from the property on June 14, 2006. We note that despite his status at the time, appellant was able to file the ex parte application as well as a comprehensive declaration referencing his other lawsuits and setting forth all of the relevant facts in detail. In addition, appellant was able to telephone his opponents counsel to give the required notice of the ex parte hearing and apparently appeared to argue the application. Thus, the record supports the trial courts implied conclusion that, despite his eviction and his inability to access his personal property, appellant was sufficiently able to prepare for trial such that a continuance was not necessary.
The denial of a continuance "is a matter of judicial discretion with which there should be no interference unless an abuse of discretion is established." (Volkering v. Allen, supra, 96 Cal.App.2d at p. 807 [trial courts decision to deny motion for continuance upheld where defendants attorney was stricken with heart attack 20 days before trial].) Appellant has failed to establish that such an abuse occurred here.
IV. Dismissal with Prejudice
Appellants final contention involves the trial courts dismissal of his action with prejudice pursuant to section 581, subdivision (d). Section 581, subdivision (d) provides that, in the event that a plaintiff abandons his case, the court shall dismiss the complaint with prejudice.
Appellant acknowledges that he did not "show up" for trial. However, he argues that he never abandoned the case. Rather, appellant states that after the trial courts denial of his motion to amend the complaint and his ex parte application to continue trial, "[a]ppellant decided to file [the] appeal already while expecting this case would be dismissed without prejudice." Appellant argues that the matter should have been dismissed without prejudice pursuant to section 581, subdivisions (b)(3), (b)(5), or (l).
Section 581, subdivision (b)(3) provides that a trial court may dismiss an action without prejudice "when no party appears for trial following 30 days notice of time and place of trial." This statute is irrelevant because the respondents did appear for trial.
Section 581, subdivision (b)(5) provides that the court "may" dismiss the action without prejudice "when either party fails to appear on the trial and the other party appears and asks for dismissal." This statute is discretionary, and does not mandate a dismissal without prejudice under the circumstances described therein.
Section 581, subdivision (l) similarly provides that the court "may" dismiss, without prejudice, "the complaint in whole, or as to that defendant when either party fails to appear at the trial and the other party appears and asks for the dismissal." Again, the statute uses discretionary language, thus a trial court is not required to apply it.
The trial court believed that appellants actions constituted abandonment, and that dismissal with prejudice was warranted. The court first stated: "[T]he [appellant] has abandoned by not even showing up." In addition, the court explained: "[T]he [appellant] didnt show up at the ex parte last time, and there was another motion when he didnt show up, and today he has failed to appear or notify the court in any way . . . why he wasnt coming." At Yis counsels request, the court clarified the nature of the dismissal, stating: "With prejudice. Absolutely. He is not here."
The record is not clear as to the specific motions being heard at the other hearings for which appellant failed to appear.
If a plaintiff persistently refuses to proceed as the court orders, the plaintiff may be held to have abandoned his case. (Larsson v. Cedars of Lebanon Hospital (1950) 97 Cal.App.2d 704, 708.) While we do not have a complete record of the proceedings in this matter, it appears that appellant refused to appear on several occasions, including an ex parte application, a motion, and finally, at trial. In addition, appellant admits that after he failed in his efforts to amend the complaint and continue trial, he decided to appeal those decisions rather than pursue his action at the trial level "while expecting this case would be dismissed without prejudice." In other words, appellant chose to desert his action at the trial level because he did not agree with the trial courts rulings. While he anticipated that the case would be dismissed, he now complains because his prediction as to the nature of the dismissal was wrong.
Under these circumstances, we find that the courts determination that appellant "abandoned" the action is supportable. We conclude that the trial court did not abuse its discretion in dismissing appellants complaint with prejudice pursuant to section 581, subdivision (d).
The two cases cited by appellant are inapplicable. The first, Cohen v. Hughes Mkts. (1995) 36 Cal.App.4th 1693, involved a trial courts dismissal of an action pursuant to section 583.420 on the ground of lack of prosecution. The statute allowed dismissal on this basis if two years had passed since the action commenced. Because the action was filed in November 1991, the court erred in dismissing it in August 1993. (Id. at p. 1698.) The court found section 581, subdivision (b)(5) to be inapplicable because the plaintiff appeared at trial through his attorney. (Id. at pp. 1699-1700.) Similarly, General Motors Corp. v. Superior Court (1966) 65 Cal.2d 88 involved former section 583s provisions allowing a court to dismiss an action if it has not been brought to trial within two years after it has been filed. (Id. at p. 91.) Neither case involved the abandonment of an action, as occurred here.
DISPOSITION
The judgment is affirmed. Appellant to pay the costs of appeal.
We concur:
DOI TODD, Acting. P. J.
ASHMANN-GERST, J.