Smith v. FPI Management, Inc. CA3 ( 2021 )

Filed 2/10/21 Smith v. FPI Management, Inc. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
PATRICIA SMITH et al., C090154
Plaintiffs and Appellants, (Super. Ct. No. 34-2018-
00228279-CU-BC-GDS)
v.
FPI MANAGEMENT, INC., et al.,
Defendants and Respondents.
Appellants, Patricia Smith and Glenn Deary II, appeal from dismissal of their
action against respondent, FPI Management Inc. (FPI); they argue: (1) because FPI was
in default for not answering the amended complaint, the trial court erred in failing to
enter judgment in their favor, and (2) FPI’s attorney perjured himself concerning the
service of the summons and complaint. We disagree and will affirm the judgment.
1
BACKGROUND
On March 2, 2018, appellants filed a form complaint for breach of contract against
Westwood Vistas and FPI Management. Appellants filed an amended form complaint on
March 28, 2018, which corrected the names of the original defendants (FPI Management
Inc. and Westwood Vista Apartment) and added two individuals acting in their official
capacities (Bonnie Darrah and Ashley Gunn).
On December 18, 2018, the court granted defendants’ unopposed motion to quash
service of the summons and complaint for failure to serve those documents in the manner
required by the Code of Civil Procedure. FPI acknowledged receipt of service on
December 28, 2018. Westwood Vista Apartment, Darrah, and Gunn were dismissed
from the suit without prejudice on January 9, 2019.
On January 25, 2019, FPI filed a declaration explaining its inability to meet and
confer with appellants concerning deficiencies in their amended complaint, and FPI was
granted an automatic 30-day extension of the deadline to file a responsive pleading.
(Code Civ. Proc., § 430.41, subd. (a)(2).)1 On February 26, 2019, FPI demurred to
appellants’ amended complaint. The court sustained this demurrer on March 29, 2019,
with leave to amend. The ruling included an explanation of the elements that appellants
would need to allege in a complaint for breach of contract in any second amended
complaint and allowed appellants until April 12, 2019, to file such complaint.
On April 23, 2019, appellants sought and received an extension of the deadline to
file the second amended complaint until May 17, 2019. Appellants’ May 16, 2019,
request for a second extension of this deadline to July 19, 2019, was denied. On May 31,
2019, appellants requested entry of default and default judgment against all original
parties to the action, including FPI.
1 Undesignated statutory references are to the Code of Civil Procedure.
2
On June 4, 2019, FPI gave notice that it would be seeking an ex parte application
to dismiss the action because of appellants’ failure to file the second amended complaint
and included a proposed order of dismissal. The trial court signed the order dismissing
the action on June 5, 2019. The same day, after entry of dismissal, appellants filed an ex
parte application for entry of default and default judgment. These documents failed to
recognize that the original service had been quashed, that all but FPI had been dismissed
from the action, and that FPI’s demurrer to the amended complaint had been sustained;
the documents were returned in any event, because the action had already been
dismissed.
On June 6, 2019, appellants’ ex parte application for relief was denied via minute
order, which summarized the procedural history of the case leading to the dismissal of all
defendants from the action. The minute order concluded: “[Appellants] have continually
sought to enter defaults in this action as to the dismissed defendants or FPI (who had
demurred), even as they themselves were under Court order to file an amended
complaint. FPI was under no obligation to file an answer until a proper complaint, in
accordance with the Court’s orders, had been filed. . . . [¶] As all defendants have been
dismissed, the Application is denied.”
Appellants timely appealed.
DISCUSSION
At the outset, we observe that appellants are not entitled to special treatment by
this court even though they are representing themselves without the assistance of an
attorney. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) We must hold them
to the same standards as if they were practicing attorneys. (Nwosu v. Uba (2004)
122 Cal.App.4th 1229, 1246-1247.) This is not intended to penalize self-represented
litigants; instead, it is necessary to maintain stability in appellate proceedings, requiring
adherence to the forms and procedures that govern appeals. This in turn supports the
appellate court’s independence and unbiased decision-making.
3
We begin with FPI’s request that we dismiss this appeal as being taken from a
nonappealable order. Appellants timely filed a notice of appeal, which identified
May 31, 2019, as the date of entry of default judgment and included a copy of appellants’
May 31, 2019, request for entry of default and default judgment. The clerk’s denial of
appellants’ request for default is not separately appealable. (Cf. First American Title
Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 960-961 [entry of default is not an
appealable order].) Nonetheless, we will liberally construe appellants’ notice of appeal as
including the dismissal following the sustaining of the demurrer without plaintiff’s filing
of a second amended complaint, which created an appealable judgment. (See Beazell v.
Schrader (1963) 59 Cal.2d 577, 579-580 [construing order sustaining demurrer without
leave to amend to include a dismissal of the action and construing the notice of appeal as
applying to that dismissal]; §§ 581d, 581, subd. (f)(2), 904.1, subd. (a)(1).) To do so
furthers the important policy of reaching the merits of appellants’ claims on appeal and is
appropriate given that FPI was not prejudiced by appellants’ failure to identify the June 5,
2019, dismissal in their notice of appeal. (See Seven Up Bottling Co. v. Grocery Drivers
Union (1950) 97 Cal.App.2d 623, 625 [notices of appeal shall be liberally construed in
favor of the right of review unless respondent has been prejudiced by the appellant’s
mistake].) Here, appellants’ designation of record included FPI’s June 4, 2019, ex parte
request for dismissal and the court’s June 5, 2010, order on that dismissal. Further,
appellants’ May 31, 2019, request was denied sometime after June 5, 2019, because the
undated denial noted the case’s dismissal as the reason for denying the application.
We therefore reach the merits, and after examination of the record and briefing we
conclude that appellants have failed to meet their burden of establishing error.
“[I]t is settled that: ‘A judgment or order of the lower court is presumed correct.
All intendments and presumptions are indulged to support it on matters as to which the
record is silent, and error must be affirmatively shown. This is not only a general
principle of appellate practice but an ingredient of the constitutional doctrine of reversible
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error.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Thus, it was appellants’
burden to demonstrate the trial court abused its discretion in denying the May 31, 2019,
request for default and default judgment and instead entering dismissal of the action.
(See Gitmed v. General Motors Corp. (1994) 26 Cal.App.4th 824, 827 [it is appellant’s
burden to demonstrate trial court abused its discretion in dismissing an action following
failure of plaintiff to amend a complaint following demurrer].) However, after service
was quashed, three of the four defendants were voluntarily dismissed and demurrer
sustained as to the remaining defendant, FPI. Moreover, there was no operative
complaint on file on May 31, 2019, because appellants failed to file a second amended
complaint by the extended deadline of May 17, 2019. Nor did appellants at any time file
a second amended complaint. Under these circumstances, the court did not abuse its
discretion in dismissing the action on June 5, 2019, as authorized by section 581,
subdivision (f)(2).
Nor have appellants established that FPI’s attorney perjured himself in
representations made to the trial court regarding the service of the summons and
complaint. (See In re S.C. (2006) 138 Cal.App.4th 396, 408 [it is appellant’s burden to
establish error through “meaningful legal analysis supported by citations to authority and
citations to facts in the record that support the claim of error.”].) Appellants did not
oppose the motion to quash service and have not otherwise shown that any
misrepresentations were made to the court, let alone prejudicial misrepresentations. 2
2 Similarly, appellant’s incomplete argument that the court clerk committed prejudicial
error by entering incorrect dates is completely unsupported by citations, argument, or
authority, and fails at the outset for those reasons alone.
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DISPOSITION
The judgment is affirmed. Respondent FPI is awarded costs on appeal. (Cal.
Rules of Court, rule 8.278(a).)
/s/
Duarte, Acting P. J.
We concur:
/s/
Hoch, J.
/s/
Renner, J.
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