Opinion
A158906
01-28-2022
KENNETH EVANS, Plaintiff and Appellant, v. Q.K. HOSSAIN, Defendant and Respondent.
NOT TO BE PUBLISHED
(Marin County Super. Ct. No. CIV1803718)
MILLER, J.
Appellant Kenneth Evans, who is incarcerated at San Quentin State Prison, appeals from a judgment of dismissal of his complaint against a prison official at the California Department of Corrections. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2018, Evans sued four prison officials with the California Department of Corrections and Rehabilitation (CDCR) and then Governor Edmund G. Brown, Jr. The form complaint stated it was for an "Intentional Tort." Eventually all of the defendants were either dismissed by Evans or not served, except defendant Q.K. Hossain. Evans's brief on appeal does not mention or challenge these voluntary dismissals. Hossain is the only respondent.
Hossain demurred on the grounds that the complaint was "uncertain, ambiguous, and unintelligible"; that it was unclear which "intentional tort" was being pled; that Evans failed to comply with the Government Claims Act; 1 that Evans did not allege Hossain's personal involvement in an injury; that the allegations failed to state any cause of action; and that the complaint stated no basis for punitive damages.
After briefing and oral argument (at which Evans appeared telephonically), the trial court sustained the demurrer with leave to amend. In a detailed written order explaining the defects in the complaint, the court found the complaint "alleging a single cause of action styled 'Intentional Tort' [was] uncertain." The court explained that there is no cause of action for "intentional tort." It wrote: "The only intentional tort it appears Plaintiff may be seeking against defendant Hossain is for civil rights violations. Although Plaintiff alleges that the Ramadan agreement which Muslim inmates were required to sign in order to practice their religion is illegal, nowhere in his cause of action does he allege that he was denied the right to exercise his religion. [¶] With respect to Plaintiff's allegation that he has a constitutional right to review the agreement defendants 'have with the San State Prison's Administration [sic],' without further information as to what he is actually seeking and why he is seeking it, the Court cannot conclude at this point that he in fact has any right to review the agreement he seeks. Further, without knowing what he is seeking and why he is seeking it, he has not shown how he has suffered any damage as a result of not being able to review it. [¶] Plaintiff's attachment of what appears to be a prior federal district court complaint does not resolve the uncertainty. He does not incorporate it or refer to it in his form complaint (other than referring to the 'agreement for participation in the Ramadan Program' which is an attachment to that complaint). Although he has put a Marin County Superior Court heading on two of the pages, it still has a federal district court venue provision and not a Marin County Superior Court venue provision. 2 Therefore it is not at all clear that Plaintiff is attempting to assert the causes of action he alleged in that complaint in this action as opposed to simply attaching it for reference to what he is alleging in this action." Referring to the liability of public employees under Government Code section 844.6, the court wrote that Evans's complaint "does not explain how his right to worship during Ramadan was infringed, if at all," and that Evans "alleges no facts in his intentional tort cause of action showing that defendant Hossain did anything which proximately caused him to suffer an injury." As to the claims presentation requirement, the court wrote that "[u]nless and until Plaintiff amends to clarify what cause(s) of action he is attempting to assert," the court could not resolve the issue whether he was required to present his claim. The court ordered Evans "to file his amended complaint within 30 days of today's date," which was April 24, 2019. Evans's brief on appeal does not mention or challenge this ruling.
On May 10, 2019, Evans filed a document called a "Motion for An Addendum to Plaintiff's Amending Complaint." Hossain moved to strike the addendum because it was not in the form of a complaint, it was not in compliance with the court's order to file an amended complaint, and there was no active complaint for Evans to amend.
Because Hossain is the only defendant who plaintiff did not dismiss before judgment, the Attorney General notes in its respondent's brief that it addresses only the allegations and proceedings relevant to Hossain. We do not disagree with the approach. However, we note for clarity, based on our review of the record, that it appears that other defendants also demurred to Evans's complaint, and so we sometimes include information about other defendants to place the trial court's rulings in context.
On July 3, 2019, after briefing and oral argument (where Evans apparently appeared telephonically), the court issued a detailed order 3 granting defendant's motion to strike the addendum to the complaint. First the court recited the procedural background: "The Court sustained Kernan and Rangel's demurrer to Plaintiff's complaint with leave to amend. [Citation.] Plaintiff had until March 29, 2019 to file an amended complaint against them, but failed to do so. [Citation.] On April 24, 2019, the Court sustained defendant Hossain's demurrer with leave to amend. [Citation.] On May 7, 2019, instead of complying with the Court's order and serving an amended complaint, Plaintiff served on Defendants a motion for an addendum to Plaintiff's complaint." The court then set out the statute governing motions to strike (Code Civ. Proc., § 436, subd. (b)) and explained, "Here, Plaintiff's addendum is a part of his pleading and is subject to strike on three grounds: (1) it was not filed in conformity with a court ordered deadline; (2) it was not filed in conformity with a court ordered procedure; and (3) it was not filed in conformity with the laws of this state." The court explained the deficiencies with plaintiff's "addendum": It "operates as a pleading and therefore must be complete in and of itself; when that pleading is a complaint i[t] must contain a 'statement of the facts constituting the cause of action' which includes its number, its nature, the party asserting it and the party or parties to whom it is directed, and 'a demand for judgment for the relief to which the pleader claims to be entitled.' (Code Civ. Proc., § 425.10; Cal. Rule of Court 2.112.) Here, Plaintiff's addendum does contain various facts, but it fails to tailor those facts with the specificity required by 4 the laws of California, and therefore is subject to a motion to strike. (Ferraro v. Camarlighi [(2008)] 161 Cal.App.4th [509, ] 528.)" Evans's brief on appeal does not mention or challenge this ruling.
The court and parties treated the document filed by Evans as an actual pleading (i.e., an "addendum," not a motion to file a pleading). Evans's brief on appeal does not mention or challenge this approach.
All statutory references are to the Code of Civil Procedure, unless otherwise stated. All references to rules are to the California Rules of Court.
On July 16, Hossain moved to dismiss the case on the ground Evans failed to timely amend his complaint following a sustained demurrer. (§ 581, subd. (f)(2); rule 3.1320(h).) The motion was heard on October 16, 2019, after which the court permitted supplemental briefing. Evans apparently appeared telephonically at the hearing and filed a written opposition to the motion. The court granted the motion to dismiss with prejudice. Evans's brief on appeal does not mention or challenge this ruling, either. The court entered judgment in favor of defendants and against Evans.
In his motion to dismiss, Hossain wrote that Evans had a "history of unsuccessful litigation," and noted that "[a]fter his pattern of unsuccessful litigation caused the district court to revoke his in forma pauperis status and dismiss his federal lawsuit, Plaintiff filed this civil matter in September 2018 against defendant Hossain and others," citing Evans v. Brown (N.D. Cal., July 2, 2018) 2018 WL 3219418.)
DISCUSSION
Under section 581, subdivision (f)(2), the trial court may dismiss a complaint where, "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. . . ." We review a dismissal under section 581, subdivision (f)(2), for abuse of discretion. (Nuno v. Cal. State University Bakersfield (2020) 47 Cal.App.5th 799, 807.)
A self-represented litigant is "treated like any other party and is entitled to the same . . . consideration" as other litigants and attorneys, but no greater consideration. (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.) 5
An order challenged on appeal is presumed to be correct, and it is the appellant's burden to affirmatively show that the trial court erred. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is also the appellant's burden to shown prejudice from any error. (Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963.) The California Constitution permits reversal only if "the error complained of has resulted in a miscarriage of justice." (Cal. Const., Art. VI, § 13.) The Code of Civil Procedure provides that appealed judgments and orders may be reversed only if the record shows that an error was "prejudicial"; the error caused the appellant "substantial injury"; and absent the error, "a different result would have been probable." (§ 475.) To show prejudice, an appellant must do more than simply state that he was prejudiced and contend that absent the error, he could reasonably expect to have obtained a more favorable outcome. (See Century Surety Co., supra, 139 Cal.App.4th at p. 963 [appellant must provide legal argument as to how the error was prejudicial].) If these burdens are not met, we reject the argument on appeal.
An appellant also has the burden "to support claims of error with meaningful argument and citation to authority. [Citations.] When legal argument with citation to authority is not furnished on a particular point, we may treat the point as forfeited and pass it without consideration. [Citations.] In addition, citing cases without any discussion of their application to the present case results in forfeiture. [Citations.] We are not required to examine undeveloped claims or to supply arguments for the litigants." (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52.)
If an appellant fails to discuss an issue in his opening brief, the appellant forfeits the issue on appeal. (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125.) With these principles in mind, we 6 conclude Evans has forfeited any appellate challenge to the orders striking the addendum and dismissing the action with prejudice. Evans has the burden on appeal to show the orders were made in error, but he has failed even to mention either of those orders in his 8-page appellate brief, let alone argue they were in error. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564.)
Evans did not file a reply brief on appeal.
We are unable to discern an appellate argument in Evans's brief. The brief consists of 19 separately numbered paragraphs. Evans occasionally cites to pages in the record (many of them exhibits to the original complaint), but with no context. The brief has a "Table of Contents" with a phrase about each page that does not appear elsewhere in the brief, and which phrases themselves are not elucidating. Many of the points raised in Evan's brief appear to refer to discovery motions or disputes. For example, the opening paragraph of the brief refers the court to a discovery motion that plaintiff made that was denied without prejudice. But there is no coherent argument that we can discern, no argument that the trial court abused its discretion, and no showing of prejudicial error anywhere in Evan's brief.
The opening sentence of the brief states that plaintiff "submit his brief to the concerns to obtain discoveries which plaintiff was denied."
Further, the brief is not in compliance with the Rules of Court governing the content and format of briefs on appeal. It does not have headings or arguments or citations to authority, as required by rule of court 8.204(a)(1)(B). It does not "[s]tate the nature of the action, the relief sought in the trial court, and the judgment or order appealed from," as required by rule 8.204(a)(2)(A). It does not "[p]rovide a summary of the significant facts, " 7 as required by rule 8.204(a)(2)(C). The record includes a clerk's transcript that is more than 1, 000 pages long.
For all of these reasons, we cannot and do not address the merits of the trial court's judgment of dismissal or interim orders.
DISPOSITION
The judgment is affirmed. 8
WE CONCUR: Stewart, Acting P.J., Kline, J. [*] 9
[*] Assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.