Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 6521
HULL, J.
Plaintiff Anthony J. Valadez, Jr., brings this pro se judgment roll appeal from the judgment in favor of defendants, entered after the court denied his motion for leave to file a fourth amended complaint for damages allegedly arising from his five-day incarceration in 2002 for contempt of court. He contends on appeal the trial court erred in striking his first amended complaint; erred in striking his second amended complaint; and abused its discretion in refusing to allow him to file a fourth amended complaint.
We find no error and shall affirm the judgment.
FACTS AND PROCEEDINGS
The Original Complaint
Plaintiff filed the instant action in July 2005, against defendants the County of Sierra, Sierra County Superior Court Judge William Pangman, Sierra County Sheriff Leland Adams III, Sheriff’s Sergeant Lou Foxworthy, Deputy Sheriff Alison Baca; Western Sierra Medical Clinic, its executive director Frank J. Lang and employee Lynn Jakobs.
He alleged a motor vehicle accident in 2002 left him with severe pain when he walks, moves his arm or shoulder, or sits or lays on hard surfaces. Months after the accident, plaintiff was sentenced in an unrelated matter to serve 30 days’ jail time for contempt; his sentence was ultimately reduced to five days.
The first day plaintiff reported to serve his five-day sentence he complained to jail personnel of pain and was released. On two subsequent days, plaintiff was examined by medical personnel and released after they did not medically clear him for incarceration; the second time, he had to wait several hours for that determination. The following month, plaintiff was examined, medically cleared for incarceration, and remanded into custody. Plaintiff’s demands to be transferred to the Nevada County jail were refused; defendants determined he did not need emergency care, and he remained in the Sierra County jail for the balance of his five-day term.
Plaintiff alleges he was in extreme pain as a result of having to sit on a concrete bench at defendants’ direction, and sleep on a hard bed in jail; defendants knew of his extreme pain, and acted with malicious cruelty toward him. He seeks damages under separate theories that he was falsely imprisoned because he was confined longer than his ordered sentence; his civil rights were violated; he was injured by defendants’ failure to summon medical aid or to provide proper medical care; defendants subjected him to cruel and unusual punishment; defendants intentionally inflicted physical pain and emotional distress; defendants negligently inflicted emotional distress; defendants negligently trained medical personnel; defendants failed to provide adequate jail facilities and to discharge their mandatory duties toward him; and defendants denied him due process of law.
Four of the defendants--the County of Sierra, Adams, Foxworthy and Baca--demurred to the original complaint. Their demurrer is not in the record on appeal. The trial court (Judge Smith) overruled their demurrer and directed them to answer the complaint, ruling as follows: “While plaintiff’s use of chain pleading is a disfavored practice, it is permissible in a notice pleading state. Despite defense counsel’s semantic arguments to the contrary, plaintiff’s complaint asserts facts, which, if proven, would render the asserted immunity protections unavailable. Said facts are not properly tested by demurrer. Further, plaintiff’s complaint is predicated on the same fundamental facts alleged in his government tort claim and federal action.”
“Chain pleading” refers to the practice of incorporating into each cause of action all of the allegations contained in the preceding paragraphs.
Western Sierra Medical Clinic, Lang and Jakobs (hereafter the medical defendants) answered the complaint; the County of Sierra, Adams, Foxworthy and Baca (hereafter the County defendants) answered separately.
First Amended Complaint
Plaintiff then filed a first amended complaint against the same defendants named in the original complaint. The medical defendants and the County defendants answered separately.
The medical defendants then moved for summary judgment or summary adjudication. Their motion is not in the record on appeal. (Judge Pangman separately demurred to the first amended complaint, and the superior court case history indicates his demurrer was sustained.)
The trial court (Judge Golden) exercised its discretion to deny the summary judgment motion because it failed to comply with the statutory requirements, noting that it could not be determined from the separate statement offered in support of the motion “which, among the purported material facts, are claimed to be the elements of the causes of action to which the motion is addressed.”
However, in an order dated April 16, 2008, the court also concluded that the motion for summary judgment disclosed fatal flaws in the first amended complaint. In particular, the complaint failed to conform to the requirement of Code of Civil Procedure section 425.10 that it “contain a statement of facts constituting the cause of action in ordinary and concise language” but instead it “contain[s] 30 headings (some of which are identified as ‘counts’) and 96 numbered paragraphs [in which] there is set forth a profusion of language which is repetitive, argumentative, and immaterial.” In addition, the first amended complaint failed to comply with the requirement that each separately stated cause of action must specifically state its number, its nature, and the party or parties to whom it is directed. Accordingly, the court concluded, the first amended complaint “is a pleading not drawn in conformity with the laws of this state which the Court is authorized to strike on its own motion (Code Civ. Proc., § 436).”
The court struck the first amended complaint.
Second Amended Complaint and Proposed Third Amended Complaint
Plaintiff then filed his second amended complaint; defendants responded by filing demurrers (which are not in the record).
Thereafter, Judge Golden gave notice that, on the court’s own motion, it would “consider the entry of an order, made pursuant to the authority conferred by Code of Civil Procedure section 436, striking the second amended complaint... for the reasons, among others that, 1) it was not filed in conformity with an order made herein April 16, 2008 authorizing the filing of an amended complaint; 2) it contains irrelevant and improper matter; and 3) it is not drawn in conformity with the laws of this state, particularly, Code of Civil Procedure section 425.10.”
Plaintiff filed a written opposition to the motion, in which he stated he “was confused and unclear about the court order in the context of the Motions for Summary Judgment, so he did not make many changes in this regard [to the 13 causes of action and seven named defendants]. [He] was also confused in light of the fact that the original Complaint was found by Judge Smith to be without any fatal defects. [¶]... After a more thorough review of the Second Amended Complaint and consultation with an attorney, Plaintiff can amend the Second Amended Complaint to state allegations of ultimate facts supporting the elements, as well as to delete legal conclusions, evidentiary facts, and arguments.”
Plaintiff proposed that he could prepare a third amended complaint that would comply with the court’s orders, and he submitted a proposed third amended complaint at the hearing on the court’s motion to strike the second amended complaint.
The court was not satisfied: It ordered the second amended complaint stricken under Code of Civil Procedure section 436. Although a transcript of the hearing is not in the record on appeal, the trial court later described the proceedings: “I provided an extended explication of the defects I found to exist in the second amended complaint. They included the failure of the second amended complaint to comply with the requirement of Code of Civil Procedure section 425.10, subdivision (a)(1) and its employment of the ‘disfavored practice’) (see [Uhrich] v. State Farm Fire & Casualty Co. (2003) 109 Cal.App.4th 598, 605) of incorporating into each successive count all of the allegations of each preceding count, with the result that the 13th count of the second amended complaint contained all of the allegations of 116 paragraphs.”
The court also rejected plaintiff’s proposal to file a third amended complaint in the form presented to the court. Instead, it ruled that plaintiff may file a motion seeking leave to file a proposed further amended complaint “which complies with Code of Civil Procedure section 425.10, contains only material allegations as defined by Code of Civil Procedure section 431.10(a), and does not contain immaterial allegations as defined by Code of Civil Procedure section[s] 431.10(b) and 431.10(c)....”
Proposed Fourth Amended Complaint
Plaintiff moved for leave to file a fourth amended complaint, as contemplated by the court’s order; in so doing, he also sought leave to add claims for “both general and professional negligence” against the medical defendants.
The County defendants opposed plaintiff’s request, on the ground the proposed fourth amendment failed to comply with the court’s orders or the Code of Civil Procedure and made only “minor adjustments” to his prior inadequate pleadings. In particular, these defendants noted that plaintiff used the “shotgun (or ‘chain letter’) style of pleading, wherein each claim for relief incorporates by reference all preceding paragraphs” and cited cases in which courts have found this style of pleading disfavored, particularly where it renders the complaint confusing, vague or unintelligible.
In their separate opposition, the medical defendants noted that plaintiff’s request to add new or retitled causes of action for general and professional negligence constitutes “an apparent attempt to cure the statute of limitations deficiencies raised by Defendants’ Demurrer” to prior pleadings.
The trial court denied plaintiff’s motion for leave to file a fourth amended complaint. After reciting the history of plaintiff’s attempts to plead in accordance with the applicable statutory requirements, the court stated that the proposed pleading “1) does not conform to the standards specified in the order [striking the second amended complaint], 2) does not contain--for each of the counts--a statement of the facts constituting the cause of action in ordinary and concise language, 3) contains immaterial allegations, 4) continues the disfavored practice of cumulative pleading by incorporating into each succeeding count all of the preceding allegations of the complaint, and 5) is not drawn in conformity with the laws of the state.”
The court then entered judgment in favor of all defendants. Plaintiff appeals.
DISCUSSION
Plaintiff contends the trial court erred in striking his first amended complaint; erred in striking his second amended complaint; and abused its discretion in refusing to allow him to file a fourth amended complaint.
We find no merit in these contentions.
Applicable Standards of Review
On appeal, we must presume the trial court’s judgment or order is correct. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) In service of that rule, we adopt all intendments and inferences to affirm the judgment or order unless the record expressly contradicts them. (See Brewer v. Simpson (1960) 53 Cal.2d 567, 583.)
It is the burden of the party challenging a judgment on appeal to provide an adequate record to assess error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) Thus, an appellant must not present just an analysis of the facts and legal authority on each point made; he or she must support arguments with appropriate citations to the material facts in the record. If an appellant fails to do so, the argument is forfeited. (County of Solano v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1274; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)
Plaintiff is not exempt from the rules governing appeals because he is representing himself in propria persona. A party representing himself is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants having attorneys. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247; see Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d117, 121 [self-represented parties are held to “the same ‘restrictive procedural rules as an attorney’”].)
Because plaintiff has elected to proceed with only a clerk’s transcript--and no transcripts of any of the hearings referred to in the court’s written orders--we must treat this as an appeal “on the judgment roll, ” to which the following rules apply: “‘Error must be affirmatively shown by the record and will not be presumed on appeal [citation]; the validity of the judgment on its face may be determined by looking only to the matters constituting part of the judgment roll [citation]; where no error appears on the face of a judgment roll record, all intendments and presumptions must be in support of the judgment [citations]; the sufficiency of the evidence to support the findings is not open to consideration by a reviewing court [citation]; and any condition of facts consistent with the validity of the judgment will be presumed to have existed rather than one which would defeat it [citation].’” (Ford v. State of California (1981) 116 Cal.App.3d507, 514, overruled on other grounds in Duran v. Duran (1983) 150 Cal.App.3d176, 177-179; see also Allen v. Toten (1985) 172 Cal.App.3d1079, 1082-1083; Cal. Rules of Court, rule 8.163.)
In sum, our review of a judgment roll appeal is limited to determining whether any error “appears on the face of the record.” (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d510, 521.)
Plaintiff Cannot Show the Court Erred in Striking His First and Second Amended Complaint
Code of Civil Procedure section 436 gives the trial court the authority to strike out any pleading, in whole or in part, that fails to conform to the laws of this state, a court rule, or the court’s prior rulings, “at any time in its discretion, and upon any terms it deems proper.”
An order striking a pleading is reviewed for abuse of discretion, and the burden is on the plaintiff to establish such abuse. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612.)
Plaintiff asserts the trial court erred in striking his first amended complaint in the course of ruling on defendants’ motion for summary judgment. In his view, because Judge Smith had found the original complaint to be without fatal errors, even though it employed “chain pleading, ” Judge Golden had no power to “undo the prior judicial action” and thus erred in finding the virtually identical first amended complaint flawed and striking it.
As to the second amended complaint, plaintiff contends he received inadequate notice of the court’s sua sponte motion that it would consider striking the complaint for failure to comport with the Code of Civil Procedure and the court’s prior orders.
Defendants respond that, by further amending his complaint, plaintiff has forfeited or waived his right to argue that the court erred in striking both of these amended pleadings.
Defendants’ argument is persuasive. In Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, the trial court sustained a demurrer to a cross-complaint on the ground that the Labor Code did not authorize the action. The defendant then amended the cross-complaint. The Supreme Court declined to decide whether the trial court was correct in sustaining the demurrer, saying that “[r]ather than appealing the trial court’s order, the [Division of Labor Standards Enforcement] chose to amend its [cross-]complaint. By doing so, it waived its right to appeal any error in the sustaining of the first demurrer.” (Aubry, at p. 966, fn. 2; see also Anmaco, Inc. v. Bohlken (1993) 13 Cal.App.4th 891, 900 [when a party chooses to amend the complaint after a motion for judgment on the pleadings sustained, it forfeits the right to appeal any error therein].)
That reasoning, applicable to demurrers and motions for judgment on the pleadings, applies here. The court’s sua sponte motion to strike the complaint functions like a demurrer in that it is an attack on the face of the pleading. When a party chooses to amend the complaint after such a motion is sustained, it forfeits the right to appeal any error therein. (Anmaco, Inc. v. Bohlken, supra, 13 Cal.App.4th at p. 900.) Plaintiff responded to the court’s sua sponte actions striking the first and second amended complaints by filing, or proffering for filing, further amended pleadings. By doing so, he forfeited any argument that the court erred in striking the first and second amended complaints.
Even if not forfeited, plaintiff’s contentions have no merit. Plaintiff rests his challenge to the court’s striking of the first amended complaint on the apparent belief that Judge Golden was bound by Judge Smith’s view of the viability of the complaint’s allegations, or the propriety of their form. He was not.
First, Judge Golden was not obligated to follow Judge Smith’s lead because the two judges were not examining the complaint from the same procedural posture. Judge Smith was considering defendants’ demurrer to the complaint; on demurrer, the judge assumes the truth of properly pleaded or implied factual allegations, and strives to give the complaint a reasonable interpretation, and read it in context. (Cf. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) Judge Golden, in contrast, was exercising his discretion to “[s]trike out any irrelevant, false, or improper matter inserted in any pleading” or to “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436.) The two judges were not doing the same thing.
Second, even if they had both been ruling on demurrers and applying the same tests, Judge Golden was not bound by Judge Smith’s prior ruling. “It should go without saying that a ruling which erroneously overrules a demurrer is not binding on anyone. The objection may be raised again by the defendants, and the error may be corrected by the same or some different law and motion judge, by the trial judge, or by the appellate court.” (Summers v. City of Cathedral City (1990) 225 Cal.App.3d1047, 1063; see also Pacific States Enterprises, Inc. v. City of Coachella (1993) 13 Cal.App.4th 1414, 1420, fn. 3 [if a demurrer is erroneously overruled, the objecting party may properly raise the point again, after the complaint is amended; whether the next demurrer is heard by the same judge who made the former ruling, or a different judge, neither is bound by the first ruling and both are “‘equally free to reexamine the sufficiency of the pleading’”].)
Nor can plaintiff show that the court abused its discretion by giving inadequate notice it intended to consider whether to strike plaintiff’s second amended complaint. Plaintiff complains he was provided inadequate time to prepare a proposed third amended complaint, but he cannot show this was an abuse of discretion when the court had not yet granted him leave to further amend his pleading, and he did not seek additional time to prepare one.
Plaintiff Cannot Show the Court Abused its Discretion in Refusing to Allow the Filing of a Fourth Amended Complaint
A plaintiff has the right to amend his complaint once without leave of court, before the defendant demurs or answers; the purpose of this rule is to facilitate prompt correction of errors in the original pleading. (Code Civ. Proc., § 472; see Woo v. Superior Court (1999) 75 Cal.App.4th 169, 175.)
Thereafter, Code of Civil Procedure section 473 states the governing rule regarding amendment of pleadings: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding....” (Id., subd. (a)(1); see also § 576.) “‘Leave to amend a complaint is thus entrusted to the sound discretion of the trial court. “... The exercise of that discretion will not be disturbed on appeal absent a clear showing of abuse. More importantly, the discretion to be exercised is that of the trial court, not that of the reviewing court. Thus, even if the reviewing court might have ruled otherwise in the first instance, the trial court’s order will yet not be reversed unless, as a matter of law, it is not supported by the record.”’ [Citations.]” (Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242.)
Generally, judicial policy favors “liberal allowance” of amendments to pleadings, if the motion is timely made and will not prejudice the opposing party. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530; see also Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596.)
Here, however, we cannot say the court’s decision to refuse plaintiff a fourth attempt to amend his complaint constituted an abuse of discretion.
First, the court’s reasoning, as demonstrated in its order denying motion for leave to file fourth amended complaint, shows a reasoned exercise of its discretion. Before denying plaintiff’s request to file a fourth amended complaint, the court explained the events preceding its decision: “A second amended complaint was filed April 30, 2008 and a hearing was scheduled on demurrers of the defendants addressed to that complaint. Prior to that hearing date, on the court’s own initiative, notice was given to the parties that, on that date, consideration would be given to the entry of an order, made pursuant to the authority conferred by Code of Civil Procedure section 436, striking the second amended complaint.... [¶] On July 10, 2008, the matter was called and I provided an extended explication of the defects I found to exist in the second amended complaint. They included the failure of the second amended complaint to comply with the requirement of Code of Civil Procedure section 425.10, subdivision (a)(1) and its employment of the ‘disfavored practice’) (See [Uhrich] v. State Farm Fire & Casualty Co. (2003) 109 Cal.App.4th 598, 605) of incorporating into each successive count all of the allegations of each preceding count, with the result that the 13th count of the second amended complaint contained all of the allegations of the 116 paragraphs.
“Following that hearing, on July 18, 2008 there was entered an order 1) rejecting plaintiff’s proposal to file a third amended complaint in the form presented by plaintiff at the hearing, 2) striking the second amended complaint pursuant to the authority conferred by Code of Civil Procedure section 436, and 3) granting plaintiff leave to file a motion seeking an order authorizing the filing of a further amended complaint complying with Code of Civil Procedure section 425.10, containing only material allegations as defined by Code of Civil Procedure section 431.10 subdivision [(a)] and not containing immaterial allegations as defined by Code of Civil Procedure section 431.10, subdivisions (b) and (c).
“The instant motion seeks an order authorizing the filing of a proposed fourth amended complaint. It is denied because the proposed complaint 1) does not conform to the standards specified in the order [striking the second amended complaint], 2) does not contain--for each of the counts--a statement of the facts constituting the cause of action in ordinary and concise language, 3) contains immaterial allegations, 4) continues the disfavored practice of cumulative pleading by incorporating into each succeeding count all of the preceding allegations of the complaint, and 5) is not drawn in conformity with the laws of the state.”
Nor can we fault the trial court’s conclusion that plaintiff’s continued attempts at amendment failed to bring his complaint closer to complying with the statutory and court-ordered requirements that it be “concise, ” avoid immaterial matter, and avoid cumulative pleading. Although plaintiff’s complaint shrunk by approximately eight pages between the first and fourth amended versions, it contained still more than four pages of initial “general allegations” and--expressly contrary to the court’s direction--continued to employ the cumulative pleading that had been disapproved by the court since plaintiff filed his first amended complaint.
Finally, we cannot say the court’s decision to refuse plaintiff a fourth attempt to amend the complaint should be reversed because it is “‘“not supported by the record”’” (Branick v. Downey Savings & Loan Assn., supra, 39 Cal.4th at p. 242). We do not have the complete record on appeal, specifically, we do not have the transcript of the hearings at which the court instructed plaintiff in what must be done to bring his pleading into compliance with the law, and heard his responses to those directions. Under these circumstances, we cannot second guess the court’s exercise of its discretion. (See ibid.)
DISPOSITION
The judgment is affirmed.
We concur SCOTLAND, P. J. CANTIL-SAKAUYE, J.