Opinion
B313597
07-15-2022
ART LLERENA, Plaintiff and Appellant, v. SUSAN BIRNEY, Defendant and Respondent.
Law Office of Martin Jerisat and Martin Jerisat for Plaintiff and Appellant. Manning & Kass, Ellrod, Ramirez, Trester, David R. Ruiz and Rodrigo J. Bozoghlian for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. 20STCV00424, Edward B. Moreton, Judge. Affirmed.
Law Office of Martin Jerisat and Martin Jerisat for Plaintiff and Appellant.
Manning & Kass, Ellrod, Ramirez, Trester, David R. Ruiz and Rodrigo J. Bozoghlian for Defendant and Respondent.
WILLHITE, J.
Plaintiff and appellant Art Llerena appeals from a judgment following the trial court's grant of defendant and respondent Susan Birney's motion for judgment on the pleadings without leave to amend.
On appeal, Llerena contends the trial court erred by granting judgment on the pleadings without considering his pending motion to vacate and set aside the truth of matters previously deemed admitted by Llerena's failure to respond to discovery. Finding no merit to Llerena's contentions, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Llerena's Form Complaint and Birney's Requests for Admissions
On January 3, 2020, Llerena filed the operative motor vehicle negligence form complaint against Birney. The form complaint stated that "[t]he following causes of action are attached and the statements above apply to each . . .: [¶] a. Motor Vehicle [¶] b. General Negligence." No attachment was provided with Llerena's form complaint, and no factual allegations were provided. Birney timely filed an answer to Llerena's complaint.
Ivan Godoy is also a listed plaintiff in the underlying action. Though he is identified as an appellant in the civil case information statement filed with this court, he is not identified as an appellant in any appellate brief. We do not consider Godoy to be an appellant in this appeal.
On September 15, 2020, Birney propounded to Llerena a set of requests for admissions. When Llerena did not respond, Birney sent Llerena a meet and confer letter informing Llerena that she would file a discovery motion if Llerena did not provide complete and verified responses by November 30, 2020. In response the same day, Llerena's counsel, Martin Jerisat, stated that no responses could be provided "as the clients are not cooperating." Jerisat also stated that he would soon file a motion to be relieved as counsel.
Jerisat filed his motion to be relieved on December 4, 2020.
Thereafter, Birney filed a motion to deem the truth of matters provided in her requests for admissions. Llerena did not oppose Birney's discovery motion, and on January 28, 2021, the court granted Birney's motion, deeming true all matters set forth in the requests for admissions. The admissions established in relevant part that Llerena's own negligence and carelessness "caused" his claimed injuries; Llerena was not permanently injured from the incident, and did not have any continuing complaints of injury; Llerena would not require any future medical treatment due to the incident; Llerena did not lose earnings due to the incident; Llerena did not have any medical treatment between the years 2018 and 2020 related to the subject incident; and Llerena failed to take any reasonable measures to mitigate any of the damages he sought to recover.
2. Birney's Motion for Judgment on the Pleadings, Llerena's Motion to Vacate the Deemed Admissions, and the Parties' Subsequent Filings
On March 18, 2021, Birney concurrently filed a motion for judgment on the pleadings and a request to take judicial notice of the court's prior ruling deeming true all matters provided in Birney's requests for admissions. (See Code Civ. Proc., §§ 438, 452.) In light of the deemed admissions, Birney argued that Llerena had failed to state any cause of action for negligence as a matter of law. The hearing date on Birney's motion was scheduled for April 15, 2021.
Unspecified statutory references are to the Code of Civil Procedure.
On March 22, 2021, Llerena, by and through Jerisat, filed a motion to vacate the order admitting the truth of the matters provided in Birney's requests for admissions (hereinafter "motion to vacate the deemed admissions") based on excusable mistake, inadvertence, or neglect of his counsel (§§ 2033.300, 473, subd. (b)). In his motion, Llerena argued that he was having conflict with Jerisat, and Jerisat had failed "to calendar the matter and file [a] timely opposition" to Birney's discovery motion. By supporting declaration, Jerisat stated that a "conflict and irreconcilable differences" with Llerena caused Jerisat difficulty in performing his job, leading Jerisat to request that Llerena retain different counsel. Jerisat "was under the impression that another firm was working on the case with [Llerena] and would file an appearance. [¶] Based on [Jerisat's] impression, [he] didn't respond to [Birney's] discovery, or file an opposition to [Birney's] motion." Jerisat "fully believed" Llerena was working with another firm.
By separate declaration in support of his motion to be relieved as counsel, Jerisat cited "[i]rreconcilable differences" as the reason for his requested withdrawal. No additional information was provided.
Because the motions to be relieved as counsel and vacate the deemed admissions were set for hearing after the hearing on Birney's motion for judgment on the pleadings, Jerisat filed two ex parte applications to shorten time for the hearing on his motion to be relieved as counsel, and to continue trial and pending deadlines. In both ex parte applications filed on March 25 and April 1, 2021, respectively, Jerisat sought to continue all deadlines "to allow [Llerena] to find new counsel and file appropriate pleadings." The court denied both applications.
On April 2, 2021, Llerena, by and through Jerisat, filed an opposition to Birney's motion for judgment on the pleadings, or alternatively a request for leave to amend the complaint. Llerena argued that the matters deemed admitted by the court did not constitute an outright concession that Llerena's negligence was "the sole cause of his injuries." Llerena requested that the court consider his pending motion to vacate the admissions and declaration in support thereof, or alternatively grant him leave to amend the pleadings "to reflect a comparative negligence [theory] and joining additional parties."
In her reply, Birney argued that Llerena had failed to allege facts demonstrating that any individual was negligent or otherwise responsible for causing Llerena's injuries.
3. The Court's Ruling
The court held a hearing on Birney's motion for judgment on the pleadings on April 15, 2021. Following argument of counsel for both parties, the court granted Birney's motion for judgment on the pleadings. "As an initial matter," the trial court noted in its ruling that Llerena's complaint was flawed because it was not accompanied by the mandatory attachments for motor vehicle and general negligence. Regarding Llerena's pending motion to vacate the deemed admissions, the court noted that Jerisat had "fail[ed] to submit any evidence demonstrating his mistaken belief other than his sparse declaration. Counsel also does not explain why his neglect should be construed as excusable [as opposed to] inexcusable conduct falling below the professional standard of care." Finally, the court declined Llerena's "request to amend the pleadings to reflect a comparative negligence theory and joining additional parties," as Llerena had not identified any additional parties, and had not offered "additional allegations that would be sufficient to state a cause of action." The court entered judgment in favor of Birney.
DISCUSSION
1. Judgment on the Pleadings
Llerena contends that the court erred by granting Birney judgment on the pleadings before considering all of the pending motions filed by Llerena and Jerisat. We disagree.
A defendant's motion for judgment on the pleadings is the functional equivalent of a general demurrer and is governed by the same de novo standard of review. (Alameda County Waste Management Authority v. Waste Connections US, Inc. (2021) 67 Cal.App.5th 1162, 1173 (Waste Connections); Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 166.) Properly pled factual allegations and matters as to which judicial notice may be taken are assumed to be true. (Waste Connections, supra, at pp. 1174-1175; Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 516; Rippon v. Bowen (2008) 160 Cal.App.4th 1308, 1313.) Reviewing courts must then determine whether those properly pled facts "'provide the basis for a cause of action'" against the defendant under any theory. (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1232.) It is the appellant's burden to show how a motion for judgment on the pleadings was granted erroneously. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (Goodman).)
Here, Llerena has not met his burden of showing how the trial court erred. Llerena was required to plead facts demonstrating that Birney owed Llerena a legal duty, breached that duty, and was the proximate and actual cause of Llerena's damages. (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 526; accord, Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614.) Even without considering the deemed admissions, there were no factual allegations made in the complaint, and there is no showing on appeal, as to how Llerena could state a cause of action.
Llerena argues only that the court should have considered all of the pending motions before it at the same time, including Birney's motion for judgment on the pleadings, Llerena's motion to vacate the deemed admissions, and Jerisat's motion to be relieved as counsel. By keeping "the issues separate," Llerena asserts that the court ruled on Birney's motion for judgment on the pleadings with "partial information" which denied "the parties a chance to fully brief the issues."
Llerena provides no legal authority for the proposition that a court is required to consider related motions at the same time. "When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority," we may treat the point as forfeited. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852; see United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153 [courts may treat as forfeited "'conclusory arguments that . . . fail to disclose the reasoning by which the appellant reached the conclusions he wants us to adopt'"].) We agree with Birney that Llerena has forfeited this argument on appeal.
The only authority on which Llerena relies addresses an attorney's duty to maintain the confidences of his or her client. (See In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 587 [maintaining the confidence of a client is "[o]ne of the basic duties of an attorney"]; Mitchell v. Superior Court (1984) 37 Cal.3d 591, 599 [same].)
In any event, Llerena's argument is meritless for the simple fact that he was afforded ample opportunity "to fully brief the issues." Llerena had an opportunity to, and did, challenge Birney's motion by filing a written opposition, and his counsel appeared at the hearing on Birney's motion. (Cf. Southern Cal. Gas Co. v. Public Utilities Com. (1979) 23 Cal.3d 470, 486 [no deprivation of due process occurs when a litigant is represented by counsel and has opportunity to submit written briefing and appear at a hearing].)
Moreover, the court did consider, and properly rejected, Llerena's motion to vacate the deemed admissions prior to granting judgment on the pleadings. Llerena's motion to vacate the deemed admissions was based on Jerisat's excusable mistake, inadvertence, or neglect. (See §§ 2033.300, 473.) But, as the trial court properly ruled, Llerena's motion and Jerisat's supporting declaration failed to set forth any circumstances under which the court could deem any mistake, inadvertence, or neglect excusable so as to relieve Llerena from the deemed admissions. (See New Albertsons, supra, 168 Cal.App.4th at pp. 1420-1421.)
Section 2033.300, subdivision (b) provides that "[t]he court may permit withdrawal or amendment of an admission only if it determines that the admission was the result of mistake, inadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially prejudiced in maintaining that party's action or defense on the merits." A court may also "relieve a party . . . from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." (§ 473, subd. (b); see also New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1419 (New Albertsons) ["[t]he use of identical terms in two different statutes serving similar purposes suggests that the Legislature intended those terms to have the same meaning in both statutes"].)
The excuses provided for Llerena's failure respond to discovery or oppose Birney's discovery motion were: (1) "conflict and irreconcilable differences" had arisen between Jerisat and Llerena; (2) Jerisat had previously requested Llerena to retain other counsel; (3) Jerisat "fully believed" another firm was working with Llerena and would file an appearance in the underlying action; and (4) Jerisat had mistakenly calendared the deadline to oppose Birney's discovery motion.
As to the first ground asserted, we agree with the trial court that the conclusory statement of a "conflict and irreconcilable differences" is insufficient to excuse Jerisat's mistake, inadvertence, or neglect. (See Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1134 [a trial court need not accept a "'sweeping claim of conflict and "rubber stamp" counsel's'" claim of conflict; counsel has a duty to describe the "'general nature, as fully as possible but within the confines of privilege'"].)
For the first time on appeal, Llerena contends that the attorney-client privilege prevented Jerisat from supplying any details regarding the "'irreconcilable differences'" between Jerisat and Llerena. Llerena has not identified any portion of the record in which he or Jerisat informed the trial court that information protected by the attorney-client privilege bore upon the court's ability to rule on Birney's motion for judgment on the pleadings. The failure to raise or resolve any privilege issue below forfeits the argument on appeal. (See In re Marriage of Nassimi (2016) 3 Cal.App.5th 667, 695.)
The remaining grounds asserted pertain to mistakes and/or oversights by counsel. But an attorney's "[m]istake is not a ground for relief . . . when 'the court finds that the "mistake" is simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law . . . .' [Citation.]" (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206; see Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1414.)
Jerisat's own conduct belies his assertions of belief that another firm was assisting Llerena with discovery or law and motion between November and December 2020. When responding to the meet and confer letter on behalf of Llerena, Jerisat informed Birney's counsel that his "client" (i.e., Llerena) was not cooperating. Then, after the trial court deemed the admissions true, Jerisat continued his representation of Llerena by filing a motion to vacate the deemed admissions and two ex parte applications to continue all trial deadlines. In both applications, Jerisat sought continuances to afford Llerena time "to find new counsel and file appropriate pleadings." Knowing that Llerena had not secured new counsel, Jerisat had an obligation not to abandon his client at a critical point in the litigation without obtaining approval from his client or the court. (See Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915; In re Matter of Dahlz (Review Dept. 2001) 4 Cal. State Bar Ct. Rptr. 269, 280; see also § 284; Cal. Rules Prof. Conduct, rule 1.16(d).) Having failed to explain why Jerisat's neglect should be construed as excusable, Llerena did not establish any ground on which to vacate the deemed admissions.
In light of the foregoing, we conclude that Llerena has failed to meet his burden to show that the trial court erred in granting judgment on the pleadings. (Goodman, supra, 18 Cal.3d at p. 349.)
2. Leave to Amend
Llerena alternatively contends that the court erred by denying his request for leave to amend the complaint. We review the court's decision for abuse of discretion. (Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 175.)
Llerena has not identified any facts in his trial or appellate briefs that he could plead in good faith to cure the defects appearing in the complaint or his deemed admissions. Llerena concedes that "[t]here are no new parties to add, and no new information." He also concedes that in light of his deemed admissions, "there is not a lot left to assert as far as damages go."
Nevertheless, Llerena asserts that "he is not foreclosed from amending the complaint to include a claim for emotional distress related to the incident" based on Birney's comparative fault. However, "'[t]he burden of proving [a] reasonable possibility [that the complaint can be amended] is squarely on the plaintiff.'" (Maxton v. Western States Metals (2012) 203 Cal.App.4th 81, 95, disapproved on another ground in Ramos v. Brenntag Specialities, Inc. (2016) 63 Cal.4th 500.) To satisfy this burden, "'"a plaintiff 'must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading'"' by clearly stating not only the legal basis for the amendment, but also the factual allegations to sufficiently state a cause of action. [Citation.]" (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 618.) Here, Llerena is deemed to have admitted that his own negligence and carelessness "caused" his injuries. He has provided no specific factual allegations that would somehow allow him to plead around that admission and state a cause of action for comparative fault entitling him to emotional distress damages. (See Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 890 [the "plaintiff must submit a proposed amended complaint or, on appeal, enumerate the facts and demonstrate how those facts establish a cause of action"].) Llerena has thus failed to demonstrate that the trial court erred in denying leave to amend.
DISPOSITION
The judgment is affirmed. Respondent shall recover her costs on appeal.
We concur: MANELLA, P.J., COLLINS, J.