Opinion
E032936.
11-4-2003
GERAINT WILKES et al., Plaintiffs and Appellants, v. WELSH NATIONAL GYMANFA GANU ASSOCIATION, Defendant and Respondent.
Twm Siôn Cati Welsh American Legal Defense, Education & Development Fund and Rees Lloyd for Plaintiffs and Appellants. Law Offices of Philip A. Levy and Philip A. Levy; Law Offices of John H. Fitzsimons and John H. Fitzsimons for Defendant and Respondent.
Plaintiffs and appellants Geraint Wilkes, Trefor Williams and Rees Lloyd, "Welshmen all," appeal after the trial court sustained the demurrer of defendant and respondent, Welsh National Gymanfa Ganu Association (the Association), to a second amended complaint for alleged unfair business practices and false "advertizing," for the Associations having had the audacity to list the Côr Cymraeg de Califfornia (the Welsh Choir of Southern California, referred to hereafter as the "Choir") as a "Welsh" organization, when, allegedly, "in fact," the members of the Choir were not Welsh, or at least not sufficiently Welsh to satisfy plaintiffs.
Plaintiffs complain that the trial court erred in sustaining the demurrer, because it was sustained on a ground, or as to theories, that were not pled. Plaintiffs further urge that the court erred in denying them leave to amend their pleading; notwithstanding the operative pleading was the "Second Amended Complaint," the Association had only been added as a defendant in the previous iteration of the complaint, and the court therefore falsely presumed that plaintiffs had had two opportunities to correct their pleading as to the Association, when in fact plaintiffs had had only one such opportunity.
We shall affirm the judgment.
FACTS AND PROCEDURAL HISTORY
The background of this litigation is entertaining, if not exactly edifying. Michael J. Lewis is the director of the Choir. Geraint Wilkes and Rees Lloyd, two of the three plaintiffs here, previously sued Lewis and the Choir apparently for alleged false advertising and unfair business practices; Wilkes and Lloyd maintained that the Choir committed false advertising in naming itself a "Welsh" choir, "when in fact it is composed of persons of non-Welsh ethnicity and heritage." In that earlier action, Superior Court number RIC 333921, the trial court granted summary judgment in favor of Lewis and the Choir, holding that "[t]he actions of defendants in advertising themselves as a Welsh Choir and the largest Welsh Choir outside of Wales is not deceptive advertising under the Unfair Business Practices Act of B & P 17200, 17500. A reasonable consumer is not likely to be deceived that the reference to Welsh Choir of Southern California requires that each member be of Welsh descent, or some other tenuous Welsh relationship. The Welsh Choir sings Welsh music and they neither advertise nor hold themselves out to the public as exclusively Welsh nationals. Also, the reference to the `largest Welsh Choir outside of Wales is mere puffery."
The suit was brought under Business and Professions Code section 17200 (unfair competition), and 17500 (unfair business practices).
Not satisfied with this result, Wilkes and Lloyd appealed the judgment. After the appeal was filed, the matter was referred to mediation; in July of 2001, the appeal, number E028729, was dismissed pursuant to a stipulated settlement. Among other terms of the appellate settlement, the Choir agreed "that in all future advertising, the Choir shall include the words `A Multi-ethnic Choir in readable type in a size appropriate to the application." The agreement included a release, which, it was also agreed, "shall not be deemed an admission of liability, nor an admission that there was no liability." Under the settlement agreement, the Choir was allowed to advertise itself, not as "The Largest Welsh Choir Outside of Wales," but as "One of the Largest Welsh Choirs Outside of Wales."
A scant month after the agreement was inked, plaintiffs perceived that Lewis and the Choir had reneged on the settlement deal. Plaintiffs filed a new action on August 29, 2001, suing Lewis and the Choir to enforce the settlement agreement. The gravamen of the suit was that Lewis and the Choir had a compact disc (CD) recording of their music offered for sale on the Choirs internet website. The offering displayed the cover of the CD, giving the name of the recording and the name of the Choir, without, however adding the words, "A Multi-ethnic Choir" as agreed under the settlement. Plaintiffs alleged causes of action for breach of the settlement agreement, for declaratory relief, for injunctive relief, and for breach of the covenant of good faith and fair dealing with respect to the settlement agreement.
On December 26, 2001, plaintiffs elected to file a first amended complaint. The new complaint added the Association as a named defendant (in place of Doe 1 in the original complaint). Plaintiffs alleged causes of action for enforcement of the settlement agreement (against all defendants), for declaratory relief (against all defendants), for breach of the covenant of good faith and fair dealing (against Lewis and the Choir only), and for defamation (against Lewis and another new defendant, Trinity Mirror Digital Media Limited).
The Association is a nonprofit society, organized to "preserve, develop and promote our Welsh religious and cultural heritage and our religious and cultural traditions, including but not limited to Gymanfa Ganu, and to do all things necessary and proper to accomplish and enhance the same." "Gymanfa Ganu," according to the Association, is "pronounced Gum-an-va Ganny [and] means `gathering for hymn-singing." Apparently, the Association, among other things, sponsors festivals celebrating Welsh culture, including musical performances.
Plaintiffs averred in their first amended complaint that, "[a]fter the Settlement Agreement . . . was entered into, Plaintiffs gave notice to [the Association], in writing, of the advertizing restrictions imposed upon Defendants Lewis and [the] Choir . . . . [The Association] was provided with a copy of said Settlement Agreement by Plaintiffs. In committing the acts complained of herein below, [the Association] was at all times relevant fully aware and informed of the advertizing restrictions against Defendants Lewis and [the] Choir, and the written request(s) of Plaintiffs that [the Association] not advertize or promote said Choir, or to allow Defendants Lewis and [the] Choir to advertize or promote said Choir, in violation of the advertizing restrictions contained in said Settlement Agreement . . . ." That is, plaintiffs were piqued that the Association allowed Lewis and the Choir to sell the offending CD, without the "Multi-ethnic Choir" designation, at the Associations 2001 festival. Plaintiffs had asked the Association to require Lewis and the Choir to comply with the settlement agreement, but the Association refused. Thus, plaintiffs complained, the Association "allowed Defendants Lewis and [the] Choir, and each of them, for consideration paid, to display, advertize, and promote for sale said CD without the words `A Multi-ethnic Choir appearing on the face of the CD."
Plaintiffs further complained that the Choir was included in a listing of "North American Welsh Groups," published by the Association, and identified simply as "Côr Cymraeg de Califfornia, Michael J. Lewis, director," and giving an address, without also including the words "A Multi-ethnic Choir" in this listing.
The Association demurred to the first amended complaint. The Association was named only in the first two causes of action, for breach of the settlement agreement, and for declaratory relief based upon the alleged breach of the settlement agreement. The Association demurred on grounds that it was not a party to, or in privity with a party to, the settlement agreement. The register of actions shows that the Associations demurrer to the first amended complaint was sustained, with leave to amend.
Inasmuch as the trial court had overruled Lewiss and the Choirs demurrers to the first amended complaint, and those parties had answered that pleading, plaintiffs filed a "second amended complaint," naming only the Association. The second amended complaint alleged only two causes of action: for unfair competition in violation of Business and Professions Code section 17200, and for false advertising in violation of Business and Professions Code section 17500.
The second amended complaint alleges: (1) Plaintiffs brought a lawsuit against Lewis and the Choir, which concluded with the appellate settlement agreement. (2) The settlement agreement provides that the Choir "will include in its advertizing a warning notice [sic] that in fact it is `A Multi-ethnic [C]hoir, . . ." (3) Plaintiffs gave notice of the settlement agreement to the Association. (4) The Association "engaged in acts fraudulently, deceptively, and/or misleadingly advertizing the Choir as `Welsh knowing that, in fact, it is not composed of Welsh people, and knowing that the Choir itself had agreed to inform the public in its advertizing that it is in fact `A Multi-ethnic [C]hoir." (5) More specifically, the Association, at its 2001 festival, "for consideration paid by the Choir, advertized the Choir as Welsh, and/or furnished the means for the Choir to advertize itself, and the products of the Choir, as `Welsh . . . without including the warning that it is in fact not composed of Welsh persons but is `A Multi-ethnic [C]hoir." (6) In addition, the Association "advertized a list of purported `Welsh Organizations in North America," and "included the Choir without the warning it is in fact `A Multi-ethnic [C]hoir." These acts, plaintiffs alleged, constituted unfair competition, or untrue or misleading advertising, in violation of Business and Professions Code section 17200. With no further elaboration, plaintiffs alleged that the same actions also violated Business and Professions Code section 17500, prohibiting false advertising.
The Association demurred to the second amended complaint. It asserted the doctrine of "defensive collateral estoppel," and argued the complaint was insufficient to state a cause of action, because it was simply another attempt to enforce the settlement agreement against a nonparty.
The trial court ruled: "Plaintiffs here allege unfair competition and false advertising, arising from the breach of an alleged underlying agreement. The defendant herein, [the Association], was not a party to any such agreement, and points out that in the absence of pri[v]ity this action cannot lie against them. That position is correct. The Court does not need to, and does not, reach any conclusions as to other issues raised herein. In that this is the second amended complaint, the demurrer is sustained without leave to amend."
The court entered judgment of dismissal for the Association, accordingly. Plaintiffs now appeal.
ANALYSIS
I. Standard of Review
"On review of an order sustaining a demurrer without leave to amend, we take as true the well-pleaded factual allegations of the complaint." We test those factual allegations, under de novo review, to determine whether the pleading contains facts sufficient to state a cause of action.
Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 193.
Filet Menu, Inc. v. Cheng (1999) 71 Cal.App.4th 1276, 1279.
Where the trial court has also denied leave to amend the complaint, we review that ruling for abuse of discretion.
Lee v. Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal.App.4th 848, 854.
II. The Second Amended Complaint Fails to State
a Cause of Action Against This Defendant
Plaintiffs protest that the trial court purportedly "decide[d] an issue or claim that is not in fact pleaded" in the second amended complaint; that is, plaintiffs urge that, although the trial court characterized the action as one to enforce the settlement agreement, "there is no allegation in the Second Amended Complaint against [the Association] for breach of [the] settlement agreement, for enforcement of the settlement agreement, nor any allegation that [the Association] breached the settlement agreement, nor any claim for relief to enforce the settlement agreement against [the Association]."
Plaintiffs assert, rather, that they "alleged that [the Association], `for consideration, had engaged in its own false advertizing of the [C]hoir, including listing it as a `North American Welsh Organization when the [C]hoir admits it is in fact `a multi-ethnic organization."
We look, nonetheless, to the operative allegations of the second amended complaint. As previously noted, the gravamen of the charge is that Lewis and the Choir entered into the settlement agreement, under which they are supposed to include the epithet, "A Multi-ethnic Choir," in their advertising; plaintiffs informed the Association about this agreement and its advertising "restrictions;" yet the Association allowed the Choir, at the Associations 2001 festival, to appear, or to sell its CDs, without forcing the Choir to comply with the terms of the settlement agreement. The second amended complaint also alleges that the Association published "a list of purported `Welsh Organizations in North America," and "included the Choir without the warning that it is in fact `A Multi-ethnic [C]hoir." (Italics added.)
The second amended complaint then simply asserts, with no other analysis, that the Association violated Business and Professions Code section 17200. In other words, the only conduct alleged to violate the Business and Professions Code is the Associations failure to enforce the terms of the settlement agreement. Stripped of any attempt to enforce the settlement agreement, the second amended complaint would contain no operative allegations whatever.
The first amended complaint attempted to assert liability against the Association directly in causes of action for breach of the settlement agreement, and for declaratory relief — also in essence to enforce the settlement agreement. The Association successfully demurred to the first amended complaint, because it was not a party to the earlier action, and was neither a party to nor bound by the settlement agreement.
Although plaintiffs have attempted to re-cast the causes of action, alleging that the Association has now itself engaged in unfair business practices and false advertising, the substance of the operative allegations remains the same: plaintiffs demanded that the Association enforce the settlement agreement, and the Association failed or refused to do so.
We cannot fault the trial court for seeing through the form to the substance of the complaint. No matter how cleverly cast, the allegations amount to neither more nor less than an attempt to hold the Association liable for failing to enforce the settlement agreement, to which it was not a party, and by which it is not bound. As had already been adjudicated on the Associations demurrer to the first amended complaint, plaintiffs cannot state a cause of action against this defendant for enforcement of, or for alleged breach of, the earlier settlement agreement.
Estate of Baum (1989) 209 Cal.App.3d 744, 749 [settlement agreement, achieved by compromise, "`can only affect the rights of the parties thereto or those in privity with them"].
The second amended complaint fails to state a cause of action for unfair competition; the unfair competition law, Business and Professions Code section 17200 et seq., defines unfair competition to mean, "any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by [Business and Professions Code section 17500, the false advertising law]." The purpose of the unfair competition law "is to protect both consumers and competitors by promoting fair competition in commercial markets for goods and services. [Citation.]" Though the scope of the unfair competition law is undeniably broad, that scope is not without limits.
Kaske v. Nike, Inc. (2002) 27 Cal.4th 939, 949, italics added.
Kaske v. Nike, Inc., supra, 27 Cal.4th 939, 949.
Cal-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 182, 184.
The act covers business practices, for the purpose of regulating commercial conduct. What we have here is not a question of business or commerce, it is a question of semantics and grammar. Plaintiffs complaint hinges entirely on the premise that to describe any group or organization as "Welsh," it must consist exclusively of persons of Welsh nationality, descent or extraction. How the issue of Welsh "nationality" is to be determined, plaintiffs leave wholly undefined. Is a person of 1/32 Welsh blood still "Welsh"? One sixty-fourth? When is the bloodline so attenuated that a person is no longer considered "Welsh"? Is a person adopted into a Welsh family nonetheless "Welsh"? These esoteric questions are not, and cannot be, answered in the context of this litigation, yet the assumption underlying both the present lawsuit and the previous one is that only genuinely "Welsh" persons — whatever that may mean —can comprise any organization that calls itself "Welsh." (Indeed, we are constrained to note that plaintiffs claim Welsh heritage, ancestry or nationality for the author and "half the signers" of the Declaration of Independence, and for "many presidents of the U.S., including, among others, John Adams, Thomas Jefferson, James Monroe, John Quincy Adams, and . . . Abraham Lincoln." It might thus prove difficult to say who among us does not have Welsh ancestry, or by what standards this is to be determined.)
"Welsh," as an adjective, however, does more than merely describe persons of Welsh nationality or descent. Websters Third New International Dictionary (1993), at page 2596, defines "welsh" as: "1 a: of, relating to, or characteristic of Wales b: of, relating to, or characteristic of the Welsh people 2: of, relating to or characteristic of the Welsh language." Thus, the descriptive term "Welsh" does not refer exclusively to the national origin of persons; it may also be used to describe many other things typical or characteristic of Wales, such as Welsh clogging (dancing), Welsh music, or Welsh culture. A person seeking to know more about Wales, its history, its traditions, and its culture might do worse than look at a list of self-styled "Welsh Organizations" in North America; if a choir that sings Welsh music is listed, even if its members are not Welsh nationals, who can possibly have been harmed?
As the Association points out, the unfair competition law is aimed at protecting "individuals, consumers, and businesses, from anti-competitive, or unfair or unlawful business conduct and from deceptive business practices." Plaintiffs here, however, as the Association puts it, "do not sue because of any business reason, or commercial practice. [Rather,] [t]hey are suing to vindicate their idiosyncratic quest to require the ethnic purity of any group which holds itself out as Welsh."
In the reply brief, plaintiffs for the first time articulate their theory of "unfair competition" or "false advertising" under the Business and Professions Code. That is, "[p]laintiffs Wilkes and Williams . . . are in fact (and pleading) Welsh musical artists, holding themselves out as `Welsh Tenor and `Welsh Baritone[,] respectively . . . and find themselves facing competition by non-Welsh who are advertizing themselves as `Welsh." (Italics original.) Plaintiffs also assert that the Association, as a benevolent non-profit organization, "not only compete[s] for audiences when [it is] involved in musical performances, [it] compete[s] for donations, contributions." Plaintiffs complain that the Associations list of "North American Welsh Organizations" is published "to a predominantly Welsh readership," and suggest that "it is counterintuitive . . . that a reader who sees an advertisement [sic] . . . identifying the . . . Choir as a `Welsh Organization will, if solicited to financially support the . . . Choir, . . somehow . . . understand that the . . . Choir is not in fact a `Welsh Organization, like the other `Welsh organizations listed, but `a multi-ethnic organization using the name `Welsh."
Plaintiffs argument, as we have previously noted, depends entirely upon the false premise that "Welsh" can only and exclusively refer to the national origin or ethnicity of persons. Thus, they claim that any organization using the term "Welsh" in its name cannot "in fact" be "Welsh" unless all its members are of Welsh descent.
We have already stated, however, that "Welsh" as a descriptive term does not refer necessarily and exclusively to the nationality or ethnicity of individual persons. Because the term "Welsh," as an adjective, legitimately describes things which are characteristic of or identified with Wales, there is no such "fact" that organizations promoting Welsh culture or traditions cannot be described as "Welsh."
Plaintiffs assert repeatedly, for example, that the Choir is not "in fact" Welsh, and that it is "in fact" a multi-ethnic choir, but stubborn insistence does not make it so. In reality, there has never been (and could hardly be) an adjudication that "Welsh Choir" cannot describe a choir which sings Welsh music. In the earlier appeal, Lewis and the Choir agreed to use the words, "A Multi-ethnic Choir" in their future advertising, but there may be any number of reasons why they agreed to do so. Perhaps they were anxious to end the expense and frustration of harassing litigation. They expressly admitted no liability whatsoever. It should be noted that plaintiffs were also parties to the stipulation reached in the earlier appeal: the settlement agreement did not prohibit the Choir from calling itself the "Welsh Choir of Southern California." The agreement also did not prohibit the Choir from using that name in advertising, so long as the additional agreed-upon language was included. The agreement further expressly permitted the Choir to advertise itself as "One of the Largest Welsh Choirs Outside of Wales." In other words, nothing in the agreement establishes as a "fact" that "Welsh Choir" must refer exclusively to the ethnic origin of the singers. Neither has there ever been any factual adjudication that "Welsh" can mean only "Welsh persons." Indeed, we can say as a matter of law that no such "fact" can be established; the law cannot command the dictionary.
Against this conclusion, plaintiffs place Housing Rights Center v. Donald Sterling Corp. Plaintiffs urge that the court there "unhesitatingly held that use of the word `Korean in advertizing is going to be understood as referring to an ethnic group, `Koreans," (italics original) and therefore that, "the commonsense, common understanding of the word `Welsh when used before the word `choir or `organization is that it refers to the Welsh people."
Housing Rights Center et al. v. Donald Sterling Corp. et al. (C.D.Cal. July 31, 2003 No. CV 03-859-AHM(Ex)) 2003 U.S. Dist. LEXIS 13302 (Donald Sterling.)
Plaintiffs reliance on Donald Sterling is misplaced. Donald Sterling involved alleged discrimination in housing. A corporation used the word "Korean" in the names of several of the apartment buildings it owned, and portrayed the South Korean flag in advertisements for vacancies in its rental properties. The owner had, according to some evidence, made statements that he did not like African-Americans or Hispanic tenants, but preferred Korean tenants. The Fair Housing Act prohibits "making, printing or publishing `any notice, statement, or advertisement, with respect to the . . . rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination." The statute promotes integrated housing; it prohibits any statement which "`would discourage an ordinary reader of a particular [protected group] from applying for an apartment [citations], or `would suggest to an "ordinary [reader]" that people [of a particular race or national origin] are preferred or dis-preferred for the housing in question." The court held that, where the names of apartment buildings themselves (e.g., a building formerly named the "Mark Wilshire Towers" was renamed the "Korean World Towers") contained the national name, "Korean," an ordinary reader would understand that ethnic Koreans, and not others, would be preferred.
Donald Sterling, supra, 2003 U.S. Dist LEXIS 13302 at page 5 (Slip opn. at pp. 15-16).
Donald Sterling, supra, 2003 U.S. Dist. LEXIS 13302 at page 5 (Slip opn. at pp. 17-18).
Plaintiffs seize on a part of the courts language, and ignore other parts. Thus, plaintiffs point to the courts pronouncement that "[t]he very word used by Defendants — `Korean — is necessarily and commonly understood to signify a particular national origin," and insist that the term "Welsh," likewise, must necessarily refer to national origin. Plaintiffs ignore other statements entirely: "Of course, the Court recognizes that use of the word `Korean is not necessarily a guise to achieve invidious discrimination. The word may commonly and appropriately be used on commercial buildings to designate a particular type of service or product — e.g., a Korean restaurant, a Korean market or a Korean video store. But when used in the name of an apartment building the word `Korean has no similarly obvious, nondiscriminatory meaning . . . ." The court remarked, "Perhaps if Defendants apartments were built in a `Korean architectural style, the natural and predictable inference might be different. But there is no indication that such is the case here." The very authority on which plaintiffs rely plainly recognizes that national terms such as "Korean" (or "Welsh") may, depending upon the context, commonly and ordinarily be understood to apply to more than simply the national origin of a person. To the extent this case is analogous to Donald Sterling, plaintiffs are in the position of insisting that national origin discrimination be practiced. It is they who wish to exclude on the basis of ethnicity alone, and to force others to do so as well.
Donald Sterling, supra, 2003 U.S. Dist. LEXIS 13302, at page 6 (Slip opn. at p. 20).
Donald Sterling, supra, 2003 U.S. Dist. LEXIS 13302, at page 7 (Slip opn. at pp. 23-24).
Donald Sterling, supra, 2003 U.S. Dist. LEXIS 13302, at page 6 (Slip opn. at p. 22).
Plaintiffs otherwise bring up new matters, which may not be raised for the first time in a reply brief. We therefore do not address them.
Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 322.
Plaintiffs argument to the court below highlights the ridiculousness of this suit: plaintiffs pointed to a recent newspaper article about the "Israeli Philharmonic" orchestra and "suggest[ed] . . . that reasonable consumers would believe that the Israeli Philharmonic is composed of Israeli[] people[,] not who are Eskimos that like the Taliban, bin Laden or Islamic extremists." Are the actual political, religious, ethnic, or national opinions, beliefs, affiliations, or origins of the individual members of the "Israeli Philharmonic" orchestra matters which are likely to deceive consumers in any meaningful way? The answer to this question is clearly, "No."
Plaintiffs insist that, "As Irish Tenors are understood to be Irishmen (would even the great tenor Pavarotti call himself an `Irish Tenor because he sang an Irish melody?); so Welsh Choirs are understood to be composed of Welsh men and women." Welsh ethnic or national origin is not the only thing that "Welsh Choir" may be understood to mean, however. "Welsh," used to describe a person, might fairly be understood to refer primarily to national origin, but "Welsh Choir," no matter who the singers are, may fairly, reasonably, and grammatically, refer to the style of singing or the kind of music sung, rather than to the ethnic purity of the singers.
Further, for all their protestations that the case is about false advertising or unfair business practices on the part of the Association, plaintiffs briefing betrays that the real object of this action is not anything that the Association did or did not do, as a business practice, but rather plaintiffs personal "offen[se]," that "a group of people who are admittedly not Welsh, . . . usurp[s] the name of a people, the Welsh, and . . . exploit[s] by calling themselves a `Welsh Choir when they are admittedly `a multi-ethnic choir." Notably, plaintiffs have never claimed that the Association "falsely" advertises itself as a "Welsh" organization or alleged that it "falsely" calls itself the "Welsh National Gymanfa Ganu Association," despite admitting non-Welsh persons to membership. In other words, the real target is the Choir, and plaintiffs seek through this litigation to enforce the settlement agreement.
The second amended complaint fails to state a cause of action against the Association; the court properly sustained the Associations demurrer to that pleading.
Plaintiffs urge that the sole ground stated in the demurrer below was "defensive collateral estoppel," and that, if the trial court or this court considers any other ground, then plaintiffs have been deprived of due process of law. The Association also demurred, however, "to any possible cause of action for breach of settlement agreement and to enforce settlement agreement on the ground that it fails to state facts sufficient to constitute a cause of action against this demurring defendant in that the verified complaint fails to allege privity exists between these parties in that this defendant was not a party to the subject Settlement Agreement, was not involved in the litigation which led to this Settlement Agreement and could not expect to be reasonably bound by the prior litigation." Inasmuch as the second amended complaint was the same action for breach of the settlement agreement, or to enforce the settlement agreement, simply dressed up in new clothes, the demurrer was sufficient to encompass the issues upon which the court ruled.
III. The Court Did Not Abuse Its Discretion in Denying Leave to Amend
Plaintiffs make much of the courts recitation that, "In that this is the second amended complaint, the demurrer is sustained without leave to amend." They complain that the "court below is in error: Although necessarily denominated a Second Amended Complaint, . . . the Second Amended Complaint was in fact but the first amended complaint against [the Association]." "That is," plaintiffs argue, "[the Association] was not named in the Complaint," and, they claim, it was "named a party for the first time only in [the] First Amended Complaint."
Plaintiffs have not demonstrated that the court abused its discretion in denying leave to amend.
We note, first, that plaintiffs first amended complaint purported to substitute the Association for a Doe defendant, Doe 1, identified in the initial complaint. Presumably, the complaint contained operative allegations concerning the acts of Doe 1. If plaintiffs were, as they claimed, ignorant of the identity of Doe 1, and have acted honestly in substituting the Association in place and stead of Doe 1, once the identity of that defendant became known, then the second amended complaint represented the third, and not merely the second, attempt to state a claim against that defendant.
Second, we observe that the number of times a litigant may have attempted to amend a pleading is not controlling on the issue whether the trial court abused its discretion in denying leave to amend. "A trial court does not abuse its discretion when it sustains a demurrer without leave to amend if either (a) the facts and the nature of the claims are clear and no liability exists, or (b) it is probable from the nature of the defects and previous unsuccessful attempts to plead that the plaintiff cannot state a claim. [Citation.]"
Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 890.
"[T]he burden falls squarely on [plaintiffs] to show what facts [they] could plead to state a cause of action if allowed the opportunity to replead. [Citation.] To meet this burden, a plaintiff must submit a proposed amended complaint or, on appeal, enumerate the facts and demonstrate how those facts establish a cause of action. [Citations.]"
Cantu v. Resolution Trust Corp., supra, 4 Cal.App.4th 857, 890.
Plaintiffs did not submit a new pleading below. Thus, we are left with the facts set forth in the briefing. Tellingly, plaintiffs identify no new facts which alter the case in any way. They suggest that they "might" be able to add allegations to establish privity between the Association and the Choir, and urge that they should "have the opportunity to attempt to do so" (italics added), but they point to no facts on the subject.
Plaintiffs claims against the Association are patently devoid of merit. The court did not abuse its discretion in denying leave to amend.
DISPOSITION
Plaintiffs, the self-appointed arbiters of Welshness, take umbrage at anyone else who wants to call himself or herself Welsh, though they certainly appear eager to claim Welshness for numerous famous or mythical people. Instead of celebrating the generation of interest in and preservation of Welsh culture and music in this country, even by those who may not be Welsh, they promulgate a shriveled and niggardly interpretation of the adjective "Welsh," as solely referring to ethnic purity, although by what standard we are left to guess. They have clogged the courts with at least two lawsuits and two appeals in a fruitless effort to enforce their views on the world. They allege commercial harm when none can possibly have been done. It is time for these plaintiffs to stop harrying the rest of the world with their ceaseless frivolous actions. Let enough be enough.
The judgment is affirmed.
We concur: Ramirez P.J. and Hollenhorst J.