Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. GIC868954, Linda B. Quinn, Judge.
BENKE, Acting P. J.
By a first amended complaint, plaintiff and appellant Lindsey E. Stewart, proceeding in propria persona, sued defendants and respondents Rady Children's Hospital San Diego (Hospital), K.I.D.S Therapy Associates, Inc., and Betsy A. Slavik (collectively Slavik), alleging causes of action styled as "Intentional Misrepresentation of Fact" and "Negligent Misrepresentation of Fact." Hospital and Slavik generally and specially demurrered, asserting several grounds. The demurrers were sustained with leave to amend. When the complaint was not amended, the trial court on Hospital's and Slavik's request dismissed the action with prejudice. After entry of judgment, Stewart appeals.
Stewart and her son Jason were plaintiffs. This court has determined Stewart but not Jason filed a notice of appeal.
BACKGROUND
A. Context
Stewart's son Jason was a student in the Poway Unified School District (District). Jason, now an adult, suffers from learning disabilities. For many years Stewart has complained about the District's assessment of Jason's disabilities and its response to his special needs. Stewart's complaints have led over many years to her initiating repeated hearings before the California Special Education Hearing Office (Hearing Office) pursuant to the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1400 et seq) and Education Code section 56000 et seq. In no case has Stewart prevailed.
B. Original Complaint
Following a decision rendered by the Hearing Office on April 13, 2006, finding the District appropriately assessed Jason and offered him an appropriate education for the school year 2005-2006, Stewart filed a complaint with the superior court on July 12, 2006.
The complaint is relatively lengthy and includes 264 pages of exhibits. The plaintiffs are Stewart and her son Jason. It names as defendants the Poway Unified School District, the California Department of Education and several individuals. Neither of these entities or individuals are named as defendants in the first amended complaint from which this appeal arises nor were any of the defendants in the amended complaint named in the original complaint.
The complaint is complex, rambling and difficult to understand. It purports to allege civil rights violations under 42 United States Code section 1883, it appears to be an attempt to appeal from both the March 17, 2005, and April 13, 2006, decisions of the Hearing Office, and it alleges the intentional infliction of emotional distress.
C. Amended Complaint
On January 13, 2007, Stewart filed the amended complaint from which this appeal arises. While the plaintiffs remained the same, the defendants and causes of action are entirely different. The defendants in the amended complaint are Rady Children's Hospital San Diego, K.I.D.S Therapy Associates, Inc., and Betsy A Slavik. The defendants in the original complaint were not named in the amended complaint.
The amended complaint is nine pages long and includes 233 pages of exhibits. Once again the complaint is difficult to understand and follow. The first and second causes of action are styled "Intentional Misrepresentation of Fact." Stewart alleges the District contracted with Hospital "to perform various duties, under the [IDEA]." She alleges Hospital hired Slavik and, apparently, Patricia Webster and Denise Hoover to perform student assessments, prepare reports and testify at hearings related to those assessments. The complaint alleges Slavik, Webster and Hoover prepared reports and testified at various hearings before the Hearing Office in 2002, 2003 and 2006 concerning assessments of Jason's education deficiencies. It appears Stewart essentially alleges the District conspired with Hospital and the other defendants to under assess and report Jason's educational deficiencies and, thus, harm him with regard to educational opportunities. The complaint describes Slavik, Webster and Hoover's testimony as perjurious.
The third cause of action is styled "Negligent Misrepresentation of Facts." It alleged Slavik, Webster and Hoover negligently failed to report observations and assessment important to the structuring of Jason's education. Within the cause of action, however, the complaint also mentions neglect of professional duties and the infliction on Jason of severe emotional distress.
D. Demurrer
Hospital and Slavik were represented by separate counsel.
1. Slavik's Demurrer
Slavik made a general demurrer arguing, as relevant here, that Stewart lacked standing to sue, the complaint failed to state facts sufficient to constitute any cause of action suggested by it, insofar as the complaint was an appeal from the April 13, 2006, Hearing Office decision, it was time barred and Slavik was immune from liability based on the litigation privilege contained in Civil Code section 47, subdivision (b).
With regard to her standing to sue, Slavik characterized Stewart's causes of action as ultimately sounding in contract. Slavik posited the causes of action were ultimately based on breaches of contract in which Stewart was neither a contracting party nor a third party beneficiary. She, therefore, had no standing to sue. Slavik argued in any case there were no facts pled indicating the existence of a contract to which she was a party or any basis for finding her a third party beneficiary to any contract.
Slavik argued if the complaint was characterized as alleging torts, it also failed to state any cause of action. As to a claim of fraud or intentional misrepresentation, no allegation was made in the complaint that Stewart relied on any claimed misrepresentation. As to any possible claim of negligent misrepresentation, Slavik argued Stewart failed to allege any facts showing she owed Stewart a duty of care and what harm resulted.
2. Hospital's Demurrer
Hospital joined in Slavik's general demurrer but added a special demurrer pursuant to Code of Civil Procedure section 430.10, subdivision (f), arguing all causes of action were uncertain.
3. Ruling on Demurrer
The trial court sustained the demurrers with leave to amend. It found the complaint failed to allege Stewart had standing to sue insofar as the complaint asserted a breach of contract claim. The court also found all of Stewart's causes of action failed to state facts and lacked required charging allegations as noted in the demurrers. The trial court also found the complaint was uncertain, vague and ambiguous. The court stated with regard to the complaint, "I can't figure out what you're saying in the first amended complaint, you'll have another chance to redo it."
The trial court granted Stewart 10 days to file an amended complaint. At Stewart's request the time was extended to 20 days.
4. Dismissal
When Stewart failed to file an amended return within the 20 days granted by the trial court, Slavik and Hospital applied for and the trial court granted a dismissal of the action with prejudice. Judgment was entered for Slavik and Hospital.
Stewart appeals from the judgment of dismissal.
DISCUSSION
It is difficult to determine the specific nature of her contentions, but in general Stewart argues the trial court erred in granting Slavik and Hospital's demurrers with leave to amend.
A. Law
A demurrer tests the legal sufficiency of other pleadings and challenges only defects on their face. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) Demurrers to a complaint may be general or special. (Code Civ. Proc., § 430.10.)
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
A general demurrer alleges the complaint failed to state a cause of action. (§ 430.10, subd. (e).) A demurrer admits all material facts properly pled. A general demurrer is denied if the complaint states any valid claim entitling the plaintiff to relief. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)
A special demurrer attacks other defects in the complaint. One basis for a special demurrer is that the pleading is "uncertain." In the context of section 430.10, subdivision (f), the term "uncertain" includes the pleading is "ambiguous and unintelligible." (§ 430.10, subd. (f).) A demurrer for uncertainty is sustained when the complaint is drafted in a manner that the defendant cannot reasonably respond, e.g., the defendant cannot determine what issues must be admitted or denied. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)
When a plaintiff is granted leave to amend a complaint but does not do so, the matter must be dismissed with prejudice. (§ 581, subd. (f)(2).)
When a demurrer is sustained with leave to amend but no amended complaint is filed, it is presumed on appeal the complaint states as strong a case as possible. (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1091.) A judgment of dismissal following the failure to amend must be affirmed if the unamended complaint is objectionable on any ground raised by the demurrer. (Soliz v. Williams (1999) 74 Cal.App.4th 577, 585.)
B. Analysis
The defendants, the trial court and this court have great difficulty in understanding Stewart's complaint. Does the complaint advance causes of action sounding in contract? Is Stewart asserting defendants acted tortuously? Is the complaint an attempt to appeal from the most recent decision of the Hearing Office?
As to each of these claims, the complaint is defective. To what contract is Stewart referring? What standing does she have to sue with regard to a contract? If she is claiming fraud or intentional or negligent misrepresentation, where is the claim she relied on those misrepresentations to her detriment, what duty do defendants owe her? If her complaint is an attempt to appeal the most resent decision of the Hearing Office, it appears untimely.
Ultimately, however, we conclude the core basis for the trial court's grant of the demurrers with leave to amend was that the complaint is uncertain and unintelligible with in the meaning of section 430.10, subdivision (f). Uncertainty is often an insufficient basis for the grant of a demurrer. This is so because generally uncertainties and lack of clarity can be dealt with in discovery. (Khoury v. Maly's of California, Inc., supra, 14 Cal.App.4th at p. 616.) However, when the uncertainties are pervasive, fairness to all dictates the better practice is to seek clarification and possibly resolution by granting the demurrer with leave to amend.
The trial court granted Stewart's request for additional time to file the amended complaint. During the hearing on the demurrers, the trial court made efforts to clarify with Stewart the nature of her claims and suggested she hire counsel. Stewart chose, for whatever reason, not to correct the defects in her complaint and to render it intelligible. The judgment of dismissal is affirmed.
The judgment is affirmed.
WE CONCUR: HALLER, J., IRION, J.