Hedwall v. PCMV, LLC ( 2018 )

Filed 4/19/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
LAINE HEDWALL, B282111
(Los Angeles County
Cross-complainant and Appellant. Super. Ct. No. PC056295)
v.
PCMV, LLC et al.,
Cross-defendants and
Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Stephen Pfahler, Judge. Affirmed.
Laine Hedwall, in pro.per., for Cross-complainant and
Appellant.
Hunton & Williams, Alexandrea H. Young and Andrew
J. Peterson for Cross-defendant and Respondent CF
Valencia Arcis LLC.
Gresham, Savage, Nolan & Tilden, Robert J. Hicks and
Andrea Rodriguez for Cross-defendant and Respondent CLP
Valencia Golf.
__________________________________________
In the underlying action, appellant Laine Hedwall filed
a cross-complaint against respondent CLP Valencia Golf,
LLC, formerly known as CNL Income Valencia LLC (CLP),
respondent CF Valencia Arcis, LLC (Arcis), and PCMV, LLC,
doing business as Valencia Country Club (PCMV), asserting
claims for breach of contract, fraud, declaratory relief, and
related causes of action. When the trial court sustained
CLP’s demurrer to the cross-complaint with leave to amend,
Hedwall filed a first amended cross-complaint (FACC). CLP
then demurred to all but one of the claims against it in the
FACC. While CLP’s demurrer to the FACC was pending,
and without seeking leave of the trial court, Hedwall filed a
second amended cross-complaint (SACC). The trial court
“canceled” the filing of the SACC on its own motion,
sustained CLP’s demurrer to the FACC without leave to
amend, and later granted judgment on the pleadings in
CLP’s favor on Hedwall’s sole remaining claim against CLP.
After Hedwall noticed this appeal, the trial court denied his
request for an order staying the proceedings relating to Arcis
and PCMV.
2
Hedwall challenges the rulings canceling the filing of
the SACC, denying leave to amend the FACC, and denying
the requested stay. We reject his contentions and affirm.
RELEVANT FACTUAL AND PROCEDURAL
BACKGROUND
In February 2015, PCMV commenced the underlying
action, asserting a single claim against Hedwall for an open
book account. PCMV sought $4,218.84 in damages plus
interest.
Hedwall’s original cross-complaint, filed March 25,
2015, contained claims against PCMV, CLP, Arcis, and other
parties for declaratory relief, breach of contract, breach of
the implied covenant of good faith and fair dealing, fraud,
unfair business practices (Bus. & Prof. Code, § 17200 et
seq.), and intentional interference with contractual relations.
Hedwall requested $70,000 in compensatory damages,
prejudgment interest, and punitive damages.
The cross-complaint alleged the following facts:
Hedwall is among the best golfers in the United States. In
2004, he decided to join the Valencia Country Club -- then
owned and managed by the Heritage Golf Group -- due to its
excellent fairways and greens. In March 2004, Hedwall and
the club’s manager entered into an oral agreement under
which Hedwall was to receive a full refund of his $70,000
membership fee if the golf course ever fell below the then-
existing standards. At some point, CLP bought the club, and
in January 2012, CLP leased it to PCMV. During that lease,
3
the club was managed by Foregolf Partners, LLC (Foregolf).
In August 2014, Foregolf and PCMV breached Hedwall’s
membership agreement by permitting the golf course to
deteriorate. Hedwall told them that in view of that breach,
he would pay no monthly dues until the golf course was
restored to an acceptable level. In November 2014, Arcis
acquired the club. Later, PCMV asserted its claim against
Hedwall for unpaid monthly dues.
CLP demurred to the cross-complaint, contending the
claims against it failed because the alleged misconduct was
attributed solely to Foregolf and PCMV. Following a
hearing, the trial court sustained CLP’s demurrer with leave
to amend, noting that nothing in the cross-complaint showed
that CLP had committed any wrongful conduct.1
In December 2015, Hedwall filed the FACC, which, in
addition to the claims previously alleged, included new
claims for conversion and declaratory relief. CLP demurred
to the FACC’s claims, with the exception of a single claim for
declaratory relief, contending the FACC assigned no specific
wrongful conduct to CLP. Noting the FACC’s allegation that
CLP “performed [its] duties under the agreement between
the parties, despite there being no signed membership
agreement,” CLP argued that Hedwall was “seeking to hold
[it] liable for wrongful conduct . . . perpetrated by other
1 Arcis and PCMV also demurred to the cross-complaint.
The record does not contain the trial court’s rulings on those
demurrers.
4
parties without alleging how that wrongful conduct is
attributable to CLP.”
Arcis and PCMV also asserted demurrers to the FACC.
Like CLP, Arcis contended the claims against it failed -- with
the exception of a single claim for declaratory relief --
because no misconduct was alleged against it. PCMV
challenged only some of the claims against it, namely, those
for fraud, unfair business practices, and intentional
interference with contractual relations.
While the demurrers to the FACC were pending,
Hedwall filed the SACC without leave of the trial court. In
March 2016, at the hearing on PCMV’s demurrer,
the trial court “canceled” the filing of the SACC on its own
motion, stating that “there was no stipulation among the
parties or court order allowing for such filing.” The court
further sustained PCMV’s demurrer to the FACC without
leave to amend. Later, in August 2016, the court sustained
CLP’s and Arcis’s demurrers to the FACC without leave to
amend, concluding that the FACC alleged no misconduct
attributable to CLP or Arcis.
In January 2017, CLP sought judgment on the
pleadings regarding the FACC’s remaining claim against it
for declaratory relief. CLP contended the claim was moot,
because the FACC alleged that CLP no longer owned the
club. On March 14, 2017, following a hearing, the trial court
granted judgment on the pleadings with respect to the
declaratory relief claim without leave to amend.
5
On March 27, 2017, Hedwall noticed this appeal.
Following the filing of the notice of appeal, Arcis and PCMV
sought summary judgment and judgment on the pleadings
regarding the FACC’s remaining claims against them.
Hedwall requested an order staying all proceedings under
Code of Civil Procedure section 916 due to his pending
appeal, which the trial court denied.
DISCUSSION
Appellant contends the trial court erred in canceling
the filing of the SACC, denying leave to amend the FACC,
and denying the requested stay. As explained below, we
reject his contentions regarding the SACC and the FACC.
We further conclude that his challenge to the denial of the
stay is not properly before us.
A. Scope of Review
At the outset, we examine the scope of our review of
the trial court’s rulings. Generally, “[a]n appealable
judgment or order is a jurisdictional prequisite to an appeal.
[Citations.]” (Connell v. Superior Court (1997) 59
Cal.App.4th 382, 392.) Here, Hedwall’s March 27, 2017
notice of appeal states that the appeal was taken from an
undated and unspecified judgment of dismissal; his opening
brief further states that the appeal was taken from a
judgment in CLP’s favor.
The record that Hedwall has provided contains no such
judgment. Under the “‘one final judgment’” rule, an appeal
6
cannot be taken from a judgment that fails to resolve to
finality all the causes of action pending between the parties.
(Hill v. City of Clovis (1998) 63 Cal.App.4th 434, 442-443.)
The cancellation of the filing of the SACC, by itself, did not
resolve Hedwall’s claims against CLP in the FACC; further-
more, the rulings in CLP’s favor on its demurrer to the
FACC and motion for judgment on the pleadings are not
appealable orders (Hill v. City of Long Beach (1995) 33
Cal.App.4th 1684, 1695; Ellerbee v. County of Los Angeles
(2010) 187 Cal.App.4th 1206, 1212-1213). Although
Hedwall’s brief refers to a March 31, 2017 order of dismissal
in CLP’s favor, the record discloses only a “Notice of Entry of
Judgment on the Pleadings” filed by CLP on that date,
stating that due to the grant of judgment on the pleadings,
“there remain[] no further causes of action against . . .
[CLP].” There is thus no appealable judgment in favor of
CLP.
Under the circumstances, it is appropriate to amend
the rulings to include such a judgment, rather than dismiss
the appeal. (See Estate of Dito (2011) 198 Cal.App.4th
791,799-800.) The rulings on the SACC and FACC
effectively ended Hedwall’s litigation against CLP, which
has not been prejudiced by his failure to secure an
appealable judgment, as it has fully briefed his challenges to
those rulings. Accordingly, in the interest of judicial
economy, we deem the rulings to incorporate a judgment of
dismissal in favor of CLP, for purposes of Hedwall’s notice of
appeal. For that reason, Hedwall’s challenges to the rulings
7
on the SACC and the FACC, insofar as they relate to CLP,
are properly before us.
The scope of Hedwall’s appeal is nonetheless subject to
certain limitations. Ordinarily, orders rendered after the
judgment or order from which an appeal is noticed do not fall
within the scope of that appeal. (See Lakin v. Watkins
Associated Industries (1993) 6 Cal.4th 644, 651; 9 Witkin,
Cal. Procedure (5th ed. 2008) Appeal, § 180, p. 256.)
Accordingly, our decision to incorporate a judgment in favor
of CLP establishes no corollary judgment in favor of Arcis or
PCMV, as the trial court’s rulings on their demurrers to the
FACC did not resolve all of Hedwall’s claims against them
prior to this appeal. Furthermore, our decision to incorpo-
rate a judgment in favor of CLP does not expand the scope of
Hedwall’s appeal to encompass the denial of the requested
order under Code of Civil Procedure section 916, which
occurred after the rulings on the SACC and FACC.2
Although orders relating to the enforcement of a
judgment subject to an appeal are themselves generally
independently appealable (see Williams v. Thomas (1980)
108 Cal.App.3d 81, 84-86), the appropriate method of
challenging the denial of an order to enforce the stay arising
under section 916 is a petition for writ of supersedeas (Estate
of Dabney (1951) 37 Cal.2d 402, 408; Chapala Management
Corp. v. Stanton (2010) 186 Cal.App.4th 1532, 1541, fn. 8).
2 All further statutory citations are to the Code of Civil
Procedure, unless otherwise indicated.
8
Here, Hedwall neither noticed a separate appeal from the
denial of the stay nor sought relief by writ of supersedeas.
We discuss the consequences of those omissions below (see
pt. D. of the Discussion, post).
On a related matter, we note that Arcis has filed a brief
in this appeal as a respondent, even though Hedwall’s notice
of appeal identifies no appealable judgment or order in favor
of Arcis. Arcis’s principal contention is that the denial of the
section 916 stay is not properly within the scope of this
appeal. Because Hedwall refers to Arcis as a respondent and
asserts no objection to Arcis’s participation in the appeal, he
has forfeited any contention that its appearance as a
respondent is improper.
B. Cancellation of the Filing of the SACC
We begin with Hedwall’s challenge to the cancellation
of the filing of the SACC.3 Generally, the trial court “may
. . . at any time in its discretion . . . [¶] . . . [¶] . . . [s]trike out
all or any part of any pleading not drawn or filed in
conformity with the laws of this state . . . .” (§ 436, subd.
3 Arcis suggests that the cancellation of the SACC falls
outside the scope of our review. However, under section 906, an
appellate court is authorized to review “any intermediate ruling,
proceeding, order or decision which involves the merits or
necessarily affects the judgment or order appealed from . . . .”
The cancellation of the SACC is thus properly before us, as it
rendered the rulings on the FACC’s claims against CLP the
equivalent of a final judgment in favor of CLP.
9
(b).) Here, relying on section 472, the trial court canceled
the filing of the SACC on its own motion because no court
order or stipulation of the parties permitted the SACC to be
filed.
The key issue is whether that ruling was authorized by
section 472, which was originally enacted in 1872.
(Historical and Statutory Notes, 15 West’s Ann. Code Civ.
Proc. (2018 supp.) & foll. § 472, p. 10.) At the time of the
underlying ruling, subdivision (a) of section 472 stated: “A
party may amend its pleading once without leave of the
court at any time before the answer or demurrer is filed, or
after a demurrer is filed but before the demurrer is heard if
the amended complaint . . . is filed and served no later than
the date for filing an opposition to the demurrer. A party
may amend the complaint . . . after the date for filing an
opposition to the demurrer, upon stipulation by the parties.”4
Section 472 affords parties a broad amendment right within
4 For the sake of simplicity, we generally refer to the
applicable statute as section 472, as the current version of the
statute is materially similar. In pertinent part, subdivision (a) of
section 472 now provides: “A party may amend its pleading once
without leave of the court at any time before the answer,
demurrer, or motion to strike is filed, or after a demurrer or
motion to strike is filed but before the demurrer or motion to
strike is heard if the amended pleading is filed and served no
later than the date for filing an opposition to the demurrer or
motion to strike. A party may amend the pleading after the date
for filing an opposition to the demurrer or motion to strike, upon
stipulation by the parties.”
10
the specified time restrictions, as it “does not limit [the]
types of amendments [that] may be made of course and
without leave of court.” (Gross v. Department of
Transportation (1986) 180 Cal.App.3d 1102, 1105 (Gross).)
Hedwall contends that section 472 entitled him to file
the SACC without leave of the trial court or a stipulation of
the parties. The crux of his contention is that under section
472, the plaintiff’s right to file an amended complaint once
as a matter of right is not restricted to an amended version
of the original complaint. He argues that a plaintiff may
amend one version of the operative complaint -- which need
not be the original complaint -- as a matter of right, provided
that the amended complaint is filed before any answer and
within the specified time restrictions relating to demurrers.
He thus maintains that he was entitled to file an amended
version of the FACC -- that is, the SACC -- because he filed
and served the SACC (1) before any answer was filed, and
(2) by the date any opposition to the then-pending demurrers
to the FACC by CLP, Arcis, and PCMV was due. As
explained below, we reject his contention.
Hedwall presents what appears to be an issue of first
impression. Although the section 472 right to amend has
long been regarded as confined to the original complaint, no
published decision has squarely held the right is so limited.
A treatise states that under section 472, “[e]ach party has
the right to amend its pleadings once -- without leave of
court -- within a brief time after its original pleading is filed.
The purpose is to facilitate prompt correction of errors or
11
deficiencies in the original pleading.” (Weil & Brown, Cal.
Practice Guide: Civil Procedure Before Trial (The Rutter
Group 2017) § 6:602.) The treatise nonetheless acknow-
ledges a potential issue regarding whether the right attaches
to an amended complaint filed after a demurrer has been
sustained with leave to amend, but observes: “[T]here is no
known reported decision permitting this. Also, the statutory
wording that a party ‘may amend its pleading once without
leave of court” may be interpreted to preclude an
amendment to an amended pleading.” (Id. at § 6:610.5.)
The key question before us is thus one of statutory
interpretation, namely, whether the statutory phrase noted
above permitted the filing of the SACC. In order to resolve
that question, we seek the legislative intent, looking first to
the plain meaning of the statutory language. (In re Jerry R.
(1994) 29 Cal.App.4th 1432, 1437.) However, “the words
must be construed in context, and provisions relating to the
same subject matter must be harmonized to the extent
possible. [Citation.]” (Lungren v. Deukmejian (1988) 45
Cal.3d 727, 735.)
In our view, Hedwall’s contention fails in light of the
manner in which the term “pleading” and its variants are
generally used within the Code of Civil Procedure. Ordina-
rily, the code employs the term “pleading” in a generic
manner, that is, to refer to certain documents setting forth
the claims and defenses in the litigation. Thus, section 420
defines “[t]he pleadings” as “the formal allegations by the
parties of their respective claims and defenses, for the
12
judgment of the court,” and section 422.10 specifies that
“[t]he pleadings allowed in civil actions are complaints,
demurrers, answers, and cross-complaints.” Under the
generic understanding of the term “pleading,” the plaintiff
initiates and maintains the action by asserting “the
complaint,” to which the defendant responds with “[t]he
demurrer” or “‘the answer.’” (4 Witkin, Cal. Procedure,
supra, Pleading, § 470, p. 600; 5 Witkin, Cal. Procedure,
supra, Pleading, §§ 946, 1045, pp. 358-360, 488.) However,
as discussed further below, when appropriate, the
Legislature sometimes employs descriptive terms referring
to a specific version of a pleading.
Under the generic understanding of the term
“pleading,” section 472 is reasonably viewed as limiting the
right to amend “the complaint” as a matter of right to the
complaint as originally filed, that is, the version of the
complaint that commences the action. Within the statute,
the phrase “[a] party may amend its pleading once without
leave of the court” is followed by time restrictions specified
in similarly generic terms, that is, “before the answer or
demurrer,” or no later than the date for filing an opposition
to a demurrer. (§ 472, subd. (a), italics added.) When the
italicized term is understood to refer to the complaint as a
generic document -- that is, as the document by which the
plaintiff commences and maintains the litigation, regardless
of how many times it is amended -- only the original version
of the complaint appears to satisfy the restrictions. That is
because only the original version of the complaint is filed
13
before “the answer or demurrer,” viewed as the generic
documents by which the defendant alleges defenses. By
parity of reasoning, under section 472, the right to amend a
cross-complaint as a matter of right is similarly limited to
the original version of the cross-complaint.
The interpretation of section 472 set forth above finds
support in Billesbach v. Larkey (1911) 161 Cal. 649(Billesbach) and People ex rel. Dept Pub. Wks. v. Clausen
(1967) 248 Cal.App.2d 770 (Clausen). Those decisions
addressed prior versions of section 472 which provided in
material part that “[a]ny pleading may be amended once by
the party of course . . . at any time before the answer or
demurrer is filed, or entered in the docket, or after demurrer
and before the trial of the issue of law thereon.” (Historical
Note, 15 West’s Ann. Cal. Code Civ. Proc. (1979) foll. § 472,
p. 45.) In each case, the reviewing court stated that after a
demurrer is sustained to the original complaint or cross-
complaint with leave to amend, the proponent of that
pleading loses the statutory entitlement to file an amended
pleading as a matter of right.
In Billesbach, the trial court sustained demurrers with
leave to amend to successive amended versions of the
plaintiff’s complaint before sustaining a demurrer to his
third amended complaint without leave to amend.
(Billesbach, supra, 161 Cal. at pp. 653-654.) Affirming the
denial of leave to amend, our Supreme Court noted the
liberal policy of permitting amendment, but stated in
reference to section 472: “The plaintiff does not have a
14
positive right to amend his pleading after a demurrer has
been sustained . . . . His leave to amend afterward is always
of grace, not of right.” (Billesbach, supra, at p. 653, italics
added; accord, Gautier v. General Tel. Co. (1965) 234
Cal.App.2d 302; Leader v. Health Industries of America, Inc.
(2001) 89 Cal.App.4th 603, 612-613.) That statement,
though a dictum, provides guidance here. (Smith v. County
of Los Angeles (1989) 214 Cal.App.3d 266, 297 [a dictum of
the Supreme Court “while not controlling authority, carries
persuasive weight and should be followed where it
demonstrates a thorough analysis of the issue or reflects
compelling logic”].)
In Clausen, the trial court sustained a demurrer to the
defendant’s cross-complaint against the plaintiff with leave
to amend. (Clausen, supra, 248 Cal.App.2d at p. 783.) When
the defendant filed an amended cross-complaint against the
plaintiff and two new parties, the trial court granted motions
to strike by all three cross-defendants on the ground that the
defendant had failed to secure leave to file such a cross-
complaint. (Id. at pp. 782-783.) The appellate court
affirmed the rulings on the motions to strike by the new
cross-defendants, but reversed the ruling on the motion to
strike by the plaintiff. (Ibid.) Regarding the latter ruling,
the court stated that “although under the provisions of
section 472 [the defendant] was not entitled to file [the
amended cross-complaint] as a matter of course, the trial
court, by sustaining [the plaintiff’s] demurrer to [the]
original cross-complaint with leave to amend, specifically
15
gave [the defendant] the requisite permission to file the
amended cross-complaint.” (Id. at p. 783, italics added.)5
Hedwall contends that section 472 reflects his
interpretation, pointing to the differences between that
statute and its immediate predecessor. We disagree.
“Although a substantial change in the language of a statute
by an amendment indicates an intention to change its
meaning, a mere change in phraseology, incident to a
revision of the statute, does not result in a change of
meaning unless the intent to make such a change clearly
appears. [Citation.] Thus, surrounding circumstances may
indicate that an amendment was merely the result of a
legislative attempt to clarify the true meaning of the statute.
5 Hedwall suggests that Clausen is inconsistent with the
holding in Gross, supra, 180 Cal.App.3d 1102. We disagree. In
Gross, the plaintiffs’ original complaint asserted claims against
several defendants. (Id. at p. 1104.) Prior to any answer or
demurrer, the plaintiffs filed an amended complaint that added a
new defendant and a new claim against one of the original
defendants. (Ibid.) The new defendant filed a motion to strike
the amended complaint, which the trial court granted. (Ibid.)
Reversing, the appellate court held that section 472 imposes no
limit on the amendments permitted under that statute, provided
that the amended complaint is filed within the specified time
restrictions. (Gross, supra, at pp. 1105-1106.) Gross addressed
the right to amend the original complaint under section 472
before an answer or demurrer had been filed. Clausen addressed
the right to file an amended cross-complaint following the
sustaining of a demurrer after leave of court had been granted to
do so. Nothing in Gross conflicts with Clausen.
16
[Citation].” (DeCastro West Chodorow & Burns, Inc. v.
Superior Court (1996) 47 Cal.App.4th 410, 418.) With
respect to the right to amend, the immediate predecessor of
section 472 was materially identical to the versions of
section 472 at issue in Billesbach and Clausen. (See former
section 472, enacted Stats. 1983, ch. 142, § 4, p. 334,
repealed Stats. 2015, ch. 418, § 2, No. 6 West’s Cal. Legis.
Service, p. 3783.) Because there are only minor differences
between the current statute and its predecessors, we discern
no change in legislative intent.6
Hedwall directs our attention to Tingley v. Times
Mirror Co. (1907) 151 Cal. 1 (Tingley), which examined a
version of section 472 similar to those discussed in
Billesbach and Clausen. In Tingley, the plaintiff asserted a
defamation claim against the defendant newspaper.
(Tingley, supra, at p. 7.) After the newspaper’s demurrer to
the complaint was overruled, it filed an answer. (Ibid.) The
6 The immediate statutory predecessor stated that “[a]ny
pleading may be amended once by the party of course . . . at any
time before the answer or demurrer is filed, or entered in the
docket, or after demurrer and before the trial of the issue of law
thereon.” (Stats. 1933, c. 744, § 31.) The current statute reads:
“A party may amend its pleading once without leave of the court
at any time before the answer, demurrer, or motion to strike is
filed, or after a demurrer or motion to strike is filed but before
the demurrer or motion to strike is heard if the amended
pleading is filed and served no later than the date for filing an
opposition to the demurrer or motion to strike.” (Stats. 2017,
c. 273, § 3.)
17
day before the trial commenced, the newspaper filed an
amended answer, asserting for the first time the defense of
justification. (Id. at p. 8.) At the plaintiff’s request, the trial
court struck the amended answer, and the plaintiff prevailed
on her claim at trial. (Id. at pp. 7-9.)
On appeal, the newspaper contended that section 472
entitled it to file the amended answer as a matter of right
because the plaintiff had not demurred to the original
answer. (Tingley, supra, 151 Cal. at p. 10.) Our Supreme
Court rejected the contention, concluding that section 472
must be construed to afford plaintiffs and defendants “equal”
rights to amend. (Tingley, at pp. 11-12.) The court stated
that under the statute “the right of plaintiff to amend his
complaint as of course is extended only up to the time when
the answer of defendant is filed, or if a demurrer is
interposed by defendant only while the issue of law raised
thereby is undetermined.” (Id. at p. 10.) The court thus held
that “[t]he right of defendant to amend can be exercised only
during the time that a demurrer to the answer if interposed
by plaintiff is undetermined, or should the plaintiff not
demur, then the defendant is concluded from amending as of
course . . . by the expiration of the time within which such
demurrer might have been interposed.” (Id. at p. 11.)
Relying on the court’s use of the term “undetermined,”
Hedwall maintains that under Tingley, section 472 permits a
plaintiff to amend a version of a complaint -- not necessarily
the original complaint -- once as a matter of right unless and
until a demurrer is sustained without leave to amend.
18
Notwithstanding that term, however, nothing in Tingley
reasonably suggests that the section 472 right to amend is
properly exercised at any time before the complaint’s legal
adequacy is determined to finality.7 The Supreme Court did
not examine that issue, and the pertinent version of section
472 provided only that the plaintiff may amend the
complaint “before the trial of the issue of law” on the
demurrer, that is, before the hearing on the demurrer.
(Tingley, supra, 151 Cal. at p. 9.)
Hedwall also contends his proffered interpretation of
section 472 finds support in a related statute, namely,
section 430.41. In 2015, upon adopting the version of section
472 pertinent here, the Legislature enacted section 430.41,
which establishes a “meet and confer” process relating to the
amendment of pleadings (§ 430.41, subd. (a)(1)). (Stats.
2015, ch. 418, § 1, p. 2.) Subdivision (a) of the latter statute
provides: “Before filing a demurrer . . . , the demurring
7 Although “our Supreme Court’s decisions bind us . . . ,
‘language contained in a judicial opinion is “‘to be understood in
the light of the facts and issue then before the court, and an
opinion is not authority for a proposition not therein considered.
[Citation.]’” [Citations.]’ [Citation.] When questions about an
opinion’s import arise, the opinion ‘should receive a reasonable
interpretation [citation] and an interpretation which reflects the
circumstances under which it was rendered [citation]’ [citation],
and its statements should be considered in context [citation].”
(Dyer v. Superior Court (1997) 56 Cal.App.4th 61, 66.)
19
party shall meet and confer in person or by telephone with
the party who filed the pleading that is subject to demurrer
for the purpose of determining whether an agreement can be
reached that would resolve the objections to be raised in the
demurrer. If an amended complaint . . . is filed, the
responding party shall meet and confer again with the party
who filed the amended pleading before filing a demurrer to
the amended pleading.”
Hedwall maintains that only his interpretation
harmonizes section 472 with subdivision (c) of section
430.41, which provides: “If a court sustains a demurrer to
one or more causes of action and grants leave to amend, the
court may order a conference of the parties before an
amended complaint or cross-complaint or a demurrer to an
amended complaint or cross-complaint, may be filed. If a
conference is held, the court shall not preclude a party from
filing a demurrer and the time to file a demurrer shall not
begin until after the conference has concluded. Nothing in
this section prohibits the court from ordering a conference on
its own motion at any time or prevents a party from
requesting that the court order a conference to be held.” As
that provision merely authorizes the trial court to order a
conference upon sustaining a demurrer with leave to amend,
the provision offers no support for Hedwall’s interpretation
of section 472.
Hedwall further contends his proffered interpretation
of section 472 is reflected in subdivision (e)(1) of section
430.41, which imposes a limit on the number of times a
20
complaint may be amended. Subdivision (e)(1) of the statute
states: “In response to a demurrer and prior to the case
being at issue, a complaint or cross-complaint shall not be
amended more than three times, absent an offer to the trial
court as to such additional facts to be pleaded that there is a
reasonable possibility the defect can be cured to state a
cause of action. The three-amendment limit shall not
include an amendment made without leave of the court
pursuant to Section 472, provided the amendment is made
before a demurrer to the original complaint or cross-
complaint is filed.” (Italics added.)
Hedwall suggests that the italicized phrase implies
that the section 472 right to amend may be applied to
versions of the complaint or cross-complaint other than the
original pleading. We disagree. The apparent function of
the phrase is to eliminate an ambiguity regarding the
application of the three-amendment limit to section 472,
namely, whether an amended version of the original
complaint (or cross-complaint) filed after a demurrer has
been filed is necessarily submitted “[i]n response to a
demurrer” (§ 430.41, subd. (e)(1)). The ambiguity arises
from the possibility that a plaintiff (or cross-complainant)
might amend the original complaint after a demurrer is filed
without making any amendments responsive to the defects
asserted in the demurrer, for example, by alleging new
claims. (Gross, supra, 180 Cal.App.3d at p. 1105.) The
italicized phrase forecloses that ambiguity, as it establishes
that only amended versions of the original complaint filed
21
before a demurrer are exempt from the three-amendment
limit. In sum, the trial court did not err in striking the
SACC because it was improperly filed under section 472.8
C. Denial of Leave to Amend the FACC
Hedwall contends the trial court abused its discretion
in denying leave to amend the FACC.9 However,
notwithstanding the liberal policy favoring amendment of
complaints, upon sustaining a demurrer to a first amended
complaint, the court may deny leave to amend when the
plaintiff fails to demonstrate the possibility of amendments
curing the first amended complaint’s defects. (See Lantzy v.
8 At CLP’s request, we have taken judicial notice of a portion
of the legislative history of section 430.41. We discern nothing in
that history that supports Hedwall’s proffered interpretation of
section 472.
9 Although Hedwall’s opening brief also asserts that the trial
court erred in sustaining CLP’s demurrer to the FACC, he does
not, in fact, attack that ruling. His briefs contain no argument
(supported by legal authority and citations to the record) aimed
at demonstrating that the FACC states any cognizable claim
against CLP. Rather, his focus is on whether the trial court erred
in denying leave to amend. Accordingly, Hedwall has forfeited
his challenge to the ruling on CLP’s demurrer to the FACC.
(Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481,
1504; see Badie v. Bank of America (1998) 67 Cal.App.4th 779,
784.)
22
Centex Homes (2003) 31 Cal.4th 363, 386-388.) As explained
below, Hedwall has made no such demonstration.
“To satisfy that burden on appeal, a plaintiff ‘must
show in what manner he can amend his complaint and how
that amendment will change the legal effect of his pleading.’
[Citation.] The assertion of an abstract right to amend does
not satisfy this burden. [Citation.] The plaintiff must
clearly and specifically set forth the ‘applicable substantive
law’ [citation] and the legal basis for amendment, i.e., the
elements of the cause of action and authority for it. Further,
the plaintiff must set forth factual allegations that
sufficiently state all required elements of that cause of
action. [Citations.] Allegations must be factual and specific,
not vague or conclusionary. [Citation.] [¶] The burden of
showing that a reasonable possibility exists that amendment
can cure the defects remains with the plaintiff; neither the
trial court nor this court will rewrite a complaint. [Citation.]
Where the appellant offers no allegations to support the
possibility of amendment and no legal authority showing the
viability of new causes of action, there is no basis for finding
the trial court abused its discretion when it sustained the
demurrer without leave to amend. [Citations.]” (Rakestraw
v. California Physicians’ Service (2000) 81 Cal.App.4th 39,
43-44.)
Hedwall identifies no new allegations supporting the
possibility of amending the FACC to cure its defects, and no
legal authority showing the viability of any potential causes
of action against CLP. He argues solely that subdivision
23
(e)(1) of section 430.41 entitled him to a minimum of three
opportunities to amend his cross-complaint. However,
nothing in that statute is reasonably understood to create
such an entitlement, as it states only that subject to
specified conditions, “a complaint or cross-complaint shall
not be amended more than three times” (§ 430.41, subd.
(e)(1), italics added). Accordingly, Hedwall has shown no
error in the denial of leave to amend the FACC.10
D. Denial of Stay Order
Hedwall contends the trial court erred in denying his
request for an order enforcing the automatic stay imposed
under section 916, subdivision (a). He argues that the
automatic stay necessarily applied to the post-appeal
proceedings relating to Arcis and PCMV.
For the reasons explained above (see pt. A. of the
Discussion, ante), Hedwall’s challenge to a ruling made after
the trial court issued its rulings on the SACC and FACC
falls outside of the scope of this appeal. We therefore lack
the jurisdiction to consider it. We further decline to treat
Hedwall’s briefs on appeal as a petition for writ of
supersedeas, as Hedwall has not requested that we do so,
10 In a related contention, Hedwall asserts that no conference
was held under section 430.41 prior to the rulings on the
demurrers to the FACC. However, as he has not shown how any
such conference might have resulted in an outcome more
favorable to him, he has demonstrated no reversible error.
(People v. Watson (1956) 46 Cal.2d 818, 836.)
24
and his briefs do not satisfy the procedural rules for such a
petition, which require notice that a stay is sought from the
appellate court (Cal. Rules of Court, rule 8.116). Hedwall’s
failure to comply with the notice requirement cannot be
regarded as harmless because PCMV has not appeared in
this appeal. In sum, the trial court’s ruling on Hedwall’s
request for a stay is not properly before us.11
11 We would reject Hedwall’s contention were we to consider
it. Under subdivision (a) of section 916, with certain exceptions,
“‘the perfecting of an appeal automatically stays proceedings in
the trial court upon the judgment or order appealed from, or upon
the matters embraced therein or affected thereby, including
enforcement of the judgment or order.’” (Dowling v. Zimmerman
(2001) 85 Cal.App.4th 1400, 1428.) The purpose of the automatic
stay rule is “‘to protect the appellate court’s jurisdiction by
preserving the status quo until the appeal is decided.’” (Elsea v.
Saberi (1992) 4 Cal.App.4th 625, 629.) However, the automatic
stay does not suspend trial court proceedings on the remaining
components of the litigation, for example, claims against other
parties -- such as Arcis and PCMV -- not resolved by the
judgment or order under appeal. (See McFarland v. City of
Sausalito (1990) 218 Cal.App.3d 909, 912; Eisenberg et al., Cal.
Practice Guide: Civil Appeals and Writs (The Rutter Group 2017)
¶ 7:36.)
25
DISPOSITION
The orders of the trial court are deemed to incorporate
a judgment of dismissal in favor of CLP, which is affirmed.
Respondents CLP and Arcis are awarded their costs on
appeal.
CERTIFIED FOR PUBLICATION
MANELLA, J.
We concur:
WILLHITE, Acting P. J.
COLLINS, J.
26