Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 457730
Siggins, J.
Julianna Agardi appeals from an order of dismissal after the court sustained a demurrer to her complaint with leave to amend and she failed to file an amended complaint within the allotted time. We find the trial court properly sustained the demurrer and dismissed the action. Accordingly, we affirm.
BACKGROUND
Agardi was terminated from her brief employment at a retirement community owned and managed by Northern California Presbyterian Homes & Services (NCPHS) after her employer determined she lacked the criminal record clearance for employment required by state law. Agardi sued NCPHS for breach of contract, tort, fraud, tortious interference, defamation, misrepresentation, estoppel, wrongful discharge and violation of good faith. Her complaint sought damages of $5 million.
On March 12, 2007, Agardi filed an amended complaint. This pleading added the City and County of San Francisco (the City) as a defendant and added various new causes of action, including whistle blowing, nuisance/harassment, violations of the federal Electronic Communications Privacy Act, violations of constitutional rights, and infliction of emotional distress. Many of the new allegations concerned Agardi’s belief that some unknown person was hacking into her computer files through City library computers. Although the complaint named NCPHS and the City as defendants, the allegations seemed to be primarily directed against the City and Hyatt Hotels and Resorts, even though Hyatt was not named as a defendant. The amended complaint sought $20 million from the City, $20 million from Hyatt, and $5 million from NCPHS.
The City demurred on the basis that the amended complaint was uncertain. The court sustained the demurrer and gave Agardi 20 days leave to amend until August 23, 2007. After Agardi failed to file an amended pleading on August 28, 2007, the City filed an ex parte motion to dismiss the action pursuant to Code of Civil Procedure section 581, subdivision (f)(2) and California Rules of Court, rule 3.1320(h). NCPHS, which had answered the amended complaint, joined in the City’s motion. Agardi was given timely notice of the motion and filed a written opposition entitled “Notice of Appearance.”
The court granted the motion and dismissed Agardi’s complaint with prejudice as to both defendants. This appeal timely followed.
DISCUSSION
I. Standard of Review
We review the trial court’s decision to dismiss a case under Code of Civil Procedure section 581, subdivision (f)(2) for abuse of discretion. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612.) “When the trial court sustains a demurrer with leave to amend and the plaintiff elects not to do so, the presumption is that he has stated as strong a case as he can; and in determining whether or not the trial court abused its discretion, we must resolve all ambiguities and uncertainties raised by the demurrer against the plaintiff.” (Hooper v. Deukmejian (1981) 122 Cal.App.3d 987, 994.)
Code of Civil Procedure section 581, subdivision (f)(2) authorizes dismissal if “after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal.”
II. The Court Correctly Sustained the Demurrer
The precise nature of Agardi’s contentions is somewhat unclear and, in numerous instances, irrelevant to the issues presented by this appeal. Most clearly, she relies on Beeler v. West American Finance Co. (1962) 201 Cal.App.2d 702 to dispute the trial court’s ruling that the first amended complaint was fatally uncertain. In Beeler the appellate court reversed an order sustaining a demurrer for uncertainty because the complaint was sufficiently clear to apprise the defendant of the issues. (Id. at p. 706.) The same cannot be said here. Agardi’s pleading is not at all clear. Although it contains an extensive narrative of the alleged unidentified hacker’s activities which purportedly contributed to her termination and other ills, it is impossible to ascertain what specific misconduct or causes of action were alleged as to the City or NCPHS. Nor does the complaint clarify the nature of the legal theory or theories being pursued against either defendant. Other allegations are not even directed against NCPHS or the City, but rather at Hyatt—which was not named as a defendant. The confusion is compounded by Agardi’s failure to separately state each of her numerous causes of action. (See Craig v. City of Los Angeles (1941) 44 Cal.App.2d 71, 73 [demurrer properly sustained as uncertain where complaint attempted to state numerous causes of action in a loose and rambling manner without any attempt at separately stating them].) The amended complaint, in short, is not sufficiently clear to apprise either defendant of the nature or extent of the claims against them or to permit them to respond to those claims. The court properly granted the demurrer on the basis of uncertainty.
Little light is shed on this by Agardi’s explanation on appeal that “the spyware’s prin [sic] outs from Plaintiff’s e-mail accounts, the javascripted documents[,] the hacked resume, and legal files with the location clearly stated the location as the San Francisco Public Library constitutes a cause of action. Without much argument about that. Without legal justification for more than two years.”
To the extent we understand Agardi’s remaining arguments, she seems to complain that (1) the dismissal was issued after an ex parte motion; and (2) defendants did not appear at the demurrer hearing. Both points are true, but neither reflects any error in the trial court. California Rules of Court, rule 3.1320(h) explicitly authorizes the use of an ex parte motion to dismiss a complaint when a plaintiff fails to timely amend after a demurrer is sustained. The City gave Agardi more than the required notice of the ex parte hearing by overnight mail three days before the hearing. (See rule 3.1203(a) [party seeking ex parte order must notify parties by 10:00 a.m. the previous court day].)
As to defendants’ failure to appear at the demurrer hearing, the trial court issued a timely tentative ruling. Agardi did not notify the City and NCPHS that she intended to appear at the hearing to challenge it. In these circumstances, the San Francisco Superior Court Local Rules, rule 8.3 and California Rules of Court, rule 3.1308(a)(1) clearly specify that the defendants were not required to appear and the tentative ruling would be adopted as the order of the court.
Agardi also raises in scattershot fashion a host of other issues that are beyond the scope of this appeal because they were not raised below or are unintelligible. For example, while her brief contains a section titled “Failure to State a Claim,” the City’s demurrer was not premised on that ground and there was no ruling on Agardi’s failure to state a claim below. Agardi maintains the court clerk erroneously rejected her attempt to file an amended complaint and describes the ensuing dismissal as “extrinsic fraud,” but provides no pertinent record or legal support for her assertions. We find no error.
We therefore need not reach NCPHS’s argument that the appeal should be dismissed because Agardi failed to comply with our appellate rules and procedures. It takes only a brief inspection to determine that there is indeed merit to its position, and it is true that Agardi’s pro. per. status does not excuse her lack of compliance. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) Having so noted, however, it is only fair to note the City’s failure to provide record citations to support its factual and procedural assertions. While it is hardly a surprise when a non-attorney fails to observe this basic requirement, the San Francisco Office of the City Attorney should not disregard this basic rule.
DISPOSITION
The judgment of dismissal is affirmed. The parties are to bear their own costs on appeal.
We concur: McGuiness, P.J., Jenkins, J.