Opinion
B202607
4-16-2008
ZEDDRICK F. WHITE, Plaintiff and Appellant, v. DELOITTE & TOUCHE LLP, Defendant and Respondent.
Zeddrick F. White in pro per for Plaintiff and Appellant. Latham & Watkins, Joel E. Krischer and Andrea Yamamoto for Defendant and Respondent.
NOT TO BE PUBLISHED
Pro per appellant Zeddrick White appeals from a judgment entered upon an order of dismissal after the trial court sustained respondent Deloitte & Touches ("D&T") demurrer without leave to amend to Whites first amended complaint. On appeal, White claims the court erred in sustaining the demurrer to the original complaint and demurrer to the first amended complaint because: (1) dismissal of his complaint deprived him of his right to a jury trial; (2) his complaint contained sufficient damage allegations; (3) the errors identified by the court in the original complaint were grammatical or boilerplate and were not grounds for sustaining a demurrer; (4) the court erred in granting judicial notice in connection with the demurrer; (5) the complaint set-forth his allegations with sufficient particularity to apprise D&T of his claims; and (6) D&T did not demonstrate the proper basis for a demurrer because D&Ts demurrer did not show the complaint contained a defect. In addition, Whites appellants brief also asserts a number of other errors including, that the trial court erred in denying his motion for reconsideration with respect to the demurrer to the original complaint, and failed to enter default against D&T for failing to timely appear in the action. Finally, White asserts the trial judge engaged in misconduct which required his disqualification.
As we shall explain, we do not reach the merits of Whites contentions in this appeal. First, White waived any claim with respect to the courts ruling on the demurrer to original complaint, Whites motion for reconsideration and his requests for default when he filed an amended complaint. Concerning his first amended complaint, White forfeits any complaints concerning the courts ruling on the demurrer because he failed to oppose it or appear at the demurrer hearing. Finally, we do not assess his claims concerning the trial judge because those claims may only be reviewed by this court by a writ of mandate and were already subject to a prior writ proceeding in this court. Accordingly we affirm.
FACTUAL AND PROCEDURAL HISTORY
White I. On June 29, 2006, White filed a complaint (LASC Case No. BC354102) against D&T alleging causes of action for wrongful termination and retaliation in connection with his employment at D&T.
On February 28, 2007, during the second day of his deposition, White and D&T reached a settlement of the lawsuit. To that end, White and D&T executed a Settlement Agreement and Release. Pursuant to the agreement, White was to receive $80,000 and his counsel was to receive $17,500. The release stated that White released D&T from "any and all . . . [Claims] which White now has or may hereafter have against [D&T] . . . by reason of any matter, cause, or thing whatsoever from the beginning of time to the date hereof, including, without limiting the generality of the foregoing, any Claims arising out of, based upon, or relating to the hire, employment, remuneration . . . or termination of White by [D&T] . . . ."
The settlement agreement also contained a clause concerning the tax implications of the settlement. This clause stated as follows:
"The parties recognize that the entire payment made to White hereunder constitutes nonwage income. Deloitte shall report the [sic] both amounts . . . on Internal Revenue Service Form 1099, and White and/or his attorneys shall be responsible for remitting to federal and/or state tax authorities any applicable taxes due and shall hold Deloitte harmless and indemnify it for any liabilities, costs and expenses, including attorney fees, caused by any tax authority relating in any way to the tax treatment of the payments made pursuant to this Mutual Settlement Agreement and Release."
During the negotiation of the Agreement and Release, White was represented by counsel. In addition, during his deposition White indicated on the record that he had read the settlement agreement, discussed it with his counsel, agreed with and was comfortable with its terms. The settlement was further described by an attorney-consultant who facilitated the settlement on the record as a "total and complaint release" by White of D&T "for any and all now-existing claims known or unknown. In other words, its a total walkaway. The parties have agreed to end their litigation and dispense with further matters."
The settlement checks were subsequently sent to Whites counsel. On March 1, 2007, the Superior Court entered the judgment of dismissal with prejudice in the action.
White II. Thereafter on April 6, 2007, White acting in pro per, filed the original complaint in this matter (LASC Case No. BC369063). The original complaint alleged the same two causes of action as asserted in White I and the same factual allegations based on the circumstances and conditions of his employment and termination from D&T.
The original complaint in White II also contained several additional paragraphs of factual allegations relating to the Settlement Agreement and Release. In these paragraphs, White alleged that the Settlement Agreement and Release was "void" because it required as a condition of the settlement that White sign certain tax forms, (i.e., a California Form 590 and IRS Form 1099 (a W-9)) which White believed mischaracterized the nature of his settlement and employment status. White believed that if he signed the forms he would be misidentifying himself to the tax authorities as a "vendor" or "contractor" of D&T rather than a former "employee" and thus he would be committing fraud. He claimed that he was misled by his own lawyer about the tax documents and that D&Ts effort to get him to execute the tax documents demonstrated D&Ts attempt to "set him up for tax evasion and fraud."
California Form 590 is the Withholding Exemption Certificate which requests information concerning the residency of a "vendor/payee" claiming a California income tax exemption. The stated purpose of the form is to "certify an exemption from nonresident withholding."
White attempted to serve the original complaint on April 6, 2007, but served D&T at an incorrect address and the complaint was returned to White. Service was perfected on D&T at the beginning of May 2007.
Demurrer to the Original Complaint in White II. On May 16, 2007, D&T filed a demurrer to the original complaint arguing the court should dismiss the action because it asserted the same causes of action and underlying facts as the complaint in White I and was barred by the Settlement Agreement and Release in White I. D&T also filed a request for judicial notice concerning the pleadings and dismissal in White I. D&T also submitted a declaration containing an excerpt from Whites deposition in White I during which the parties discussed the settlement agreement.
White opposed the demurrer conceding the existence of the Settlement Agreement and the Release, but nonetheless arguing that D&Ts conditions requiring him to complete the tax forms amounted to a fraud which nullified the settlement agreement and thus allowed him to reassert his original claims. After a hearing on the demurrer, on June 20, 2007, the trial court sustained the demurrer for the reasons stated by D&T, but gave White five days in which to file an amended complaint.
Whites Motion for Reconsideration. On June 25, 2007, White filed a motion for reconsideration, arguing that allegations in White II were significantly different from those asserted in White I. Specifically White pointed to his allegations concerning the tax forms and his argument that D&T had committed fraud in requiring him to execute those documents. He reasserted the argument made in his opposition to the demurrer that D&Ts fraud made the Settlement Agreement and Release void.
White also requested additional time to file an amended complaint.
Requests for Entry of Default. In mid-July 2007 White filed the first of three requests for Entry of Default claiming that D&T had failed to answer or otherwise appear in the action within 30 days of when he filed the original complaint and attempted service. His first two requests were denied because D&T had timely filed a demurrer to the original complaint and the last request was denied because it was filed after White filed the first amended complaint.
Whites Declarations of Judicial Prejudice. In late July 2007, White filed the first of four "Declarations of Prejudice and Disqualification for Cause" against the trial judge. In the disqualification declaration White asserted the trial judge committed misconduct and displayed bias when: (1) he failed to transfer White II to the same trial judge who presided over White I and (2) he failed to enter default against D&T. The trial court struck the disqualification request as untimely and unfounded and filed an affirmative response to his claims. In early August, White filed and the court struck a second "Declaration of Prejudice" containing the same arguments and claims as the first Declaration of Prejudice. In late August White filed his third "Declaration of Prejudice" against the trial judge. He reasserted the same allegations as before and also claimed that certain court proceedings held on August 9, and August 21 were improper and that the courts clerical correction nunc pro tunc of an order constituted judicial misconduct. The trial court struck the third "Declaration of Prejudice" and the court filed a response.
In early September 2007, White filed his fourth declaration of prejudice and request for disqualification styled as a "Writ of Mandate and Complaint for Declaration of Prejudice and Disqualification for Cause." This filing reasserted the same claims as the prior declarations of prejudice. After this request was struck by the trial court, White filed a petition for writ of mandate in this Court asserting the same allegations of judicial misconduct contained in his trial court filings. On September 20, 2007, this court summarily denied the petition (Case No. B202150).
First Amended Complaint in White II . On August 13, 2007, while his motion for reconsideration and extension of time to file an amended complaint were still pending, White filed his first amended complaint. In the first amended complaint, White retained the causes of action for wrongful termination and retaliation, added some factual details, and deleted others concerning his employment and circumstances surrounding his termination from D&T. The first amended complaint also retained the factual allegations relating to his execution of the tax documents and added causes of action for "Unlawful [Labor Code] Deductions," "Slander and Defamation," "Breach of Contract—Breach of Covenant of Good Faith and Fair Dealing" and "Fraud and Deceit."
These motions were denied on August 21, 2007.
Demurrer to the First Amended Complaint. On August 21, 2007, D&T filed and served a demurrer to the first amended complaint. D&T asserted the first amended complaint was barred by the Settlement Agreement and Release in White I and that the amended complaint should be dismissed with prejudice because White had failed to correct the defects in the original complaint. White did not file an opposition to the demurrer. In addition, he did not appear at the demurrer hearing.
On September 25, 2007, the trial court sustained D&Ts demurrer to the first amended complaint without leave to amend. The court found: "In [White I] there was a dismissal with prejudice and the claims herein predate the settlement. In the initial complaint there were two causes of action: (1) wrongful termination in violation of public policy and (2) retaliation. Those matters were previously addressed in [White I ]. Plaintiff now attempts to expand the action but plaintiff is barred by the settlement. The first amended complaint fails to state facts sufficient to constitute a cause of action pursuant to Code of Civil Procedure Section 430.10(e)." Thereafter the court entered an order of dismissal.
On the form notice of appeal White checked boxes indicating he was appealing from: "(1) judgment of dismissal under Code of Civil Procedure Sections 581d, 583.250, 583.360 and 583.430; (2) judgment of dismissal after an order sustaining a demurrer; (3) an order after judgment under Code of Civil Procedure section 904.1(a)(2) and (4) judgment of dismissal after denial of Writ of Mandate for Declaration of Prejudice CCP 170.3(c)(1)."
DISCUSSION
On appeal, White claims the court erred in sustaining the demurrer to the original complaint and demurrer to the first amended complaint for a number of reasons which relate to the sufficiency of his pleadings, his procedural rights and the courts granting of judicial notice of the pleadings and proceedings in White I. In addition, Whites appellants brief also asserts a number of other errors below including, that the trial court erred in denying his motion for reconsideration with respect to the demurrer to the original complaint, and failed to enter default against D&T on the original complaint. Finally, White asserts the trial judge engaged in misconduct during these proceedings which required him to disqualify himself.
Specifically he argues (1) dismissal of his complaint deprived him of his right to a jury trial; (2) his complaint contained sufficient damage allegations; (3) the errors identified by the court in the original complaint were grammatical or boilerplate and were not grounds for sustaining a demurrer; (4) the court erred in granting judicial notice in connection with the demurrer; (5) the complaint set-forth his claims with sufficient particularity to apprise D&T of his claims and (6) D&T did not set-forth the proper basis for a demurrer because D&Ts demurrers failed to object to the complaint on the basis that the complaint contained a defect.
As we shall explain we need not resolve the merits of Whites contentions as to these matters because his arguments on appeal are all waived, forfeited or have already been resolved by this court.
First, with respect to the challenge of the trial courts ruling on the demurrer to the original complaint, as well as Whites motion for reconsideration of the ruling and his multiple requests for entry of default on the original complaint, we note that rather than appealing from the judgment entered upon these orders, White filed a first amended complaint. By doing so he waived any claim with respect to the courts rulings concerning the original complaint. (See Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 966, fn. 2 [filing an amended complaint waives the right to appeal any error in the sustaining of the first demurrer]; Chicago Title Insurance Company v. Great Western Financial Corporation (1968) 69 Cal.2d 305, 311 ["`The court on appeal will not consider the sufficiency of a superseded complaint where the plaintiff has amended it after demurrer sustained."].)
In any event, it appears that D&Ts demurrer to the original complaint constituted a timely appearance and thus, the trial court properly rejected his requests for a default judgment. In addition, as to the motion for reconsideration, Whites motion would have been properly rejected on the merits as it did not present new or different facts, circumstances or law as required by Code of Civil Procedure section 1008. Instead, his motion merely reasserted the arguments he made in his opposition to the demurrer.
Second, concerning his first amended complaint, White forfeits any contentions concerning the courts ruling on the demurrer because he failed to oppose it in the trial court. "As a general rule, an appellate court will not review an issue that was not raised by some proper method by a party in the trial court." (Woodward Park Homeowners Association v. City of Fresno (2007) 150 Cal.App.4th 683, 712.) The purpose of this general rule is to give the trial court and parties an opportunity to correct an error that could be corrected. "[I]t is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial." (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 394, p. 445, italics removed.) A "noncurable defect of substance where the question is one of law" is not an error that falls within the rule. A "matter involving the public interest or the due administration of justice" also is not. (Woodward Park Homeowners Association v. City of Fresno, supra, 150 Cal.App.4th at p. 712, citation omitted.)
White has not addressed his failure to appear at the hearing on the demurrer to the first amended complaint or his failure to oppose the motion. All of the arguments White raises on appeal are matters that he could have but did not assert in the trial court. In addition, White has not shown his arguments concerning the ruling fall within one of the exceptions to the general rule of forfeiture. Specifically he has not demonstrated that the errors were noncurable questions of law, involve a matter of public interest or the administration of justice. His failure to do so is fatal to his appeal.
Had White opposed the demurrer he perhaps could have argued the fraud causes of action and the factual contentions concerning the tax documents did not clearly relate to his employment and termination and thus were not subject of the Settlement Agreement and Release or barred by the judgment in White I. White could have sought leave to amend his complaint, limiting it to claims involving the post-Settlement Agreement and Release issues and thus attempted to cure the defects in his first amended complaint. But White did not oppose the demurrer to the first amended complaint, did not posit these arguments in the trial court, did not give D&T a chance to respond and did not give the trial court an opportunity to address these matters. Nor has he raised these arguments before this court in an effort to cure the defects in his first amended complaint.
Finally, with respect to Whites arguments concerning his "Declarations of Prejudice and Disqualification for Cause" and "Writ of Mandate and Complaint for Declaration of Prejudice and Disqualification for Cause," we note that pursuant to Code of Civil Procedure section 170.3(d) a determination of a request for disqualification is not an appealable order and may only be reviewed by this court by a writ of mandate. Thus we do not review Whites contentions concerning disqualification asserted in this appeal. In any event, our review of the record reveals these are the same claims and allegations of judicial misconduct as those he asserted in his September 2007 petition for writ of mandate filed in this Court. This court has already considered, resolved and rejected these contentions when we denied the petition.
DISPOSTION
The judgment is affirmed. Respondent is entitled to its costs on appeal.
We concur:
PERLUSS, P.J.
WILEY, J.