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Wright v. Wickersham

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
Feb 28, 2012
A132596 (Cal. Ct. App. Feb. 28, 2012)

Opinion

A132596

02-28-2012

MICHAEL JOHN WRIGHT et al., Plaintiffs and Appellants, v. STEPHEN v. WICKERSHAM, Defendant and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Alameda County Super. Ct. No. AG10544786)

Appellants Michael John Wright, individually and as Trustee of the Carlton Merrit Trust, and Linda Wright seek review of a judgment entered upon a demurrer. Because the judgment was issued while appellants' leave to file an amended complaint had not expired, we reverse. Respondent agrees that appellants should be afforded the opportunity to file an amended complaint.

BACKGROUND

Appellants sued respondent Stephen Wickersham, an attorney, for alleged deficiencies in his representation of them in a lawsuit concerning a real estate transaction. The complaint alleged claims labeled fraudulent concealment, unjust enrichment, legal malpractice, negligence, breach of fiduciary duty, and sought damages for fraud and deceit. Respondent demurred.

In its tentative ruling on the demurrer, the superior court concluded that each of appellants' causes of action appeared to be rooted in a claim of legal malpractice. Accordingly, the court determined the legal malpractice claims were barred by the statute of limitations stated in Code of Civil Procedure, section 340.6. The tentative ruling provided appellants until June 7, 2011 to file an amended complaint.

In their Opening Brief, appellants do not challenge the ruling on demurrer insofar as it concluded their claim for legal malpractice was time barred. Instead they argue that they should be afforded an opportunity to plead fraud-based causes of action that would remove their claims from the operative effect of Code of Civil Procedure, section 340.6.

Appellants contested the tentative ruling at the hearing on the demurrer. Counsel for respondent did not appear. The court modified its tentative ruling to allow appellants until June 24, rather than June 7, to file their amended complaint.

Counsel for respondent was unaware that appellants contested the tentative ruling and that the court enlarged the time for them to file an amended complaint. Thus, even though they had until June 24 to amend, respondent filed an ex parte application on June 14 seeking to dismiss the complaint for appellants' failure to amend by June 7. The court granted the application and dismissed appellants' complaint with prejudice. This appeal is timely.

DISCUSSION

California Rules of Court, rule 3.1320(h) provides that a party may apply ex parte for an order dismissing an action and for entry of judgment "after expiration of the time to amend following the sustaining of a demurrer." Here, respondent applied for just such an order on June 14, 2011 in the mistaken belief that appellants' time to amend had expired. The court dismissed the action and entered judgment on June 16. The dismissal and judgment were premature because the court's ruling on the demurrer allowed appellants until June 24 to file their amended complaint.

The ex parte entry of judgment before the time expired for appellants' leave to amend wrongfully deprived them of the opportunity to state a cause of action, and was an act in excess of the court's jurisdiction. (See, e.g., Deeter v. Angus (1986) 179 Cal.App.3d 241, 251.) It was reversible judicial error (People v. Davidson (2008) 159 Cal.App.4th 205, 210), that is correctable on appeal. (See 2 Witkin, California Procedure (5th ed. 2008) Jurisdiction, § 302, p. 915.)

DISPOSITION

The judgment is reversed, and this case is remanded to afford appellants an opportunity to file an amended complaint.

Siggins, J. We concur: Pollak, Acting P.J. Jenkins, J.


Summaries of

Wright v. Wickersham

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
Feb 28, 2012
A132596 (Cal. Ct. App. Feb. 28, 2012)
Case details for

Wright v. Wickersham

Case Details

Full title:MICHAEL JOHN WRIGHT et al., Plaintiffs and Appellants, v. STEPHEN v…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE

Date published: Feb 28, 2012

Citations

A132596 (Cal. Ct. App. Feb. 28, 2012)