Smith
v.
State

This case is not covered by Casetext's citator
COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICTNov 7, 2018
F065182 (Cal. Ct. App. Nov. 7, 2018)

F065182

11-07-2018

ROBERT P. SMITH III, Plaintiff and Appellant, v. STATE OF CALIFORNIA et al., Defendants and Respondents.

Robert P. Smith III, in pro. per., for Plaintiff and Appellant. Xavier Becerra, Attorney General, Alberto L. Gonzalez and John M. Feser Jr., Deputy Attorneys General, for Defendants and Respondents.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 08C0403)

OPINION

APPEAL from a judgment of the Superior Court of Kings County. Thomas DeSantos, Judge. Robert P. Smith III, in pro. per., for Plaintiff and Appellant. Xavier Becerra, Attorney General, Alberto L. Gonzalez and John M. Feser Jr., Deputy Attorneys General, for Defendants and Respondents.

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INTRODUCTION

Appellant Robert P. Smith III challenges the trial court's dismissal of his civil rights complaint primarily challenging inadequate dental care. Respondents State of California, California Department of Corrections and Rehabilitation (CDCR), and 11 individually named defendants, filed a motion for judgment on the pleadings, raising procedural defects with the complaint. The motion was granted, and Smith was provided 30 days to file an amended complaint. He failed to do so. Over six months passed and respondents failed to move to dismiss based on Smith's failure to file an amended complaint. Accordingly, the court sua sponte set a motion to dismiss for failure to file an amended complaint. After briefing and argument, the court found that Smith's failure to file an amended complaint was not justified and dismissed the complaint.

On appeal, Smith challenges the trial court's decision on several grounds. He argues that the court abused its discretion in granting the motion for judgment on the pleadings and for dismissing the complaint for failure to timely file an amended complaint, that the trial court deprived him of his due process rights for failing to grant his request for the appointment of independent experts, that the court deprived him of the opportunity to obtain necessary discovery from respondents, that the court allowed respondents to be represented by counsel who were not of record in the case, that the court erred in denying his request for entry of default against respondents, that the court abused its discretion in rejecting his attacks against respondents' answer, that the court erred in denying his sanctions motion, and that the court wrongly denied his postjudgment motions.

Upon review, we find that the trial court did not abuse its discretion in granting the motion for judgment on the pleadings and for dismissing the matter for failure to file an amended complaint. Further, none of Smith's other allegations of impropriety on the part of the court are meritorious. Accordingly, the judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

Smith Files Complaint

On September 28, 2008, Smith, then an inmate at California State Prison, Corcoran, filed a complaint alleging causes of action against 10 individuals and the State of California, by and through the CDCR arising from delayed and improper dental and medical care.

Smith alleged that on July 10, 2007, he sought treatment from the dentist for gum pain. Smith was seen by a dentist that day. The dentist told Smith that he had an abscess, that the tooth would have to be removed, and prescribed him a one-week course of antibiotics. Smith requested a root canal instead, but the dentist rejected the request because the tooth was too decayed to be saved. No other treatment besides the antibiotic was provided with regard to that tooth.

Four days later, on July 14, 2007, Smith cracked a front tooth while eating a sandwich. He sought dental care that day, but a dentist was not available. Smith returned two days later and attempted to receive emergency dental treatment, but he was not seen. Over the next two days, Smith returned to the dental clinic, was eventually seen, and had the cracked tooth extracted. Smith alleged extraction resulted in a disfiguring gap that subjected Smith to ridicule, caused emotional distress, and affected his ability to enunciate certain words. Based on the lack of dental care, Smith claimed that respondents were deliberately indifferent to his serious medical needs, giving rise to cognizable claims under 42 United States Code section 1983. He also presented a claim for negligence under state law.

Smith also alleged medical claims in his complaint. He claimed he sought medical treatment for hip and leg pain. He was provided medications, physical therapy, and an MRI was taken of his leg and back. Smith alleged that the medications and physical therapy were not effective to reduce the pain. Because of respondents' failure to provide the proper diagnosis, care and treatment in a timely manner, Smith alleged he was subject to extreme and unnecessary pain for several months.

Filing of Demurrer

On July 20, 2009, respondents filed a demurrer to the complaint under Code of Civil Procedure section 430.10, subdivision (e). In the demurrer, respondents alleged that the action should not proceed because the State of California was not a person under 42 United States Code section 1983, the state could not be sued for general negligence, and the state was immune from liability for injuries to a prisoner under Code of Civil Procedure section 430.10, subdivision (e). On October 9, 2009, the court issued a minute order sustaining the demurrer with 30 days leave to amend. On October 26, 2009, the court issued a formal, written order sustaining the demurrer. The written order stated that the first and third causes of action failed to state causes of action upon which relief could be granted because the State of California was not a proper defendant (see Hafer v. Melo (1991) 502 U.S. 21, 25-26), that the state could not be sued for general negligence (Gov. Code, § 815, subd. (a)), and that the state had immunity to liability stemming from injuries to a prisoner (Gov. Code, § 844.6, subd. (a)(2)).

Respondents filed an earlier demurrer on June 4, 2009, alleging that Smith had failed to comply with the requirements of the Government Claims Act (Gov. Code, § 810 et seq.). Smith filed an opposition and moved to strike the demurer. He presented evidence that he had in fact filed an administrative claim. The court granted Smith's motion to strike and allowed respondents to file the amended demurrer at issue here.

As the written order stated that it provided Smith 30 days' leave to amend, it is reasonably construed that the start of the 30-day deadline commenced on the date of issuance of the written order, rather than from the date of the issuance of the minute order. Regardless, Smith failed to file an amended complaint within either time period.

In response, Smith filed, among other things, a motion for reconsideration of the ruling on the demurrer. The motion to reconsider was denied on December 21, 2009. On December 7, 2009, more than 30 days after the order sustaining the demurrer was issued, Smith filed a document titled "PLAINTIFF'S AMENDMENTS TO THE COMPLAINT HERE." Rather than file an amended complaint, Smith described the amendments he intended to make to the complaint to comply with the findings of the demurrer. Specifically, he intended to remove claims for monetary damages against respondents State of California and CDCR.

The amendments were filed in superior court after the case had been removed to federal court. However, the trial court allowed and considered the amendments in its later rulings.

Removal to Federal Court

On November 30, 2009, even though the case had been pending for over a year, respondents filed a notice of removal to federal court. Smith filed a motion to remand to superior court on December 29, 2009, alleging procedural defects, including that removal was untimely. On September 29, 2010, the federal district court ordered the matter remanded to Kings Superior Court because removal to federal court was untimely.

Motion for Judgment on the Pleadings

After the matter was remanded back to superior court, respondents filed an answer to Smith's complaint on October 29, 2010. On March 1, 2011, respondents filed a motion for judgment on the pleadings. Smith filed a declaration opposing the motion, to which respondents filed a reply brief. The court held a hearing on the motion on April 15, 2011, and took the matter under submission. On April 22, 2011, the court issued a written order granting the motion. In its ruling, the court noted the complaint was previously subject to a demurrer that was sustained with leave to amend. Rather than file an amended complaint, Smith filed amendments to the complaint, and the court found the "filing of this document was a substantial factor in the uncertainty as to the theory behind the causes of action brought by [Smith] and the persons or entities named in each cause of action." The court held that Smith failed to meet the requirements of California Rules of Court, rule 2.112. The court specifically noted that Smith failed to separately state each cause of action, that he failed to state which defendants were named in each claim, and that claims could not combine legal theories. It noted that Smith's "failure to comply with pleading requirements have resulted in [respondents] and this court having to guess what causes of action are contained within the complaint and its amendment." The court concluded by stating, "The motion is otherwise granted on the grounds that the complaint and its amendment border on unintelligible and fail to comply with the pleadings requirements as set forth in ... rule 2.112. [Smith] is given 30 days leave to amend after service of this ruling on the parties by the clerk of the court."

All further references to rules are to the California Rules of Court.

Here, Smith combined theories of intentional torts under California law and federal civil rights liability under 42 United States Code section 1983 in the same claim.

Smith did not file an amended complaint within 30 days. Rather, on May 13, 2011, Smith filed an ex parte request to reconsider and stay the order granting the motion or, alternatively, provide an extension of time to file an amended complaint. On May 23, 2011, the court denied the motion for reconsideration as untimely and, likewise, denied the request for an extension of time. On June 8, 2011, Smith filed a second motion for reconsideration or, alternatively, for an extension of time to file a complaint. On June 22, 2011, the court denied the second motion. The court noted that the first motion for reconsideration was denied as untimely; however, the court also noted that Smith failed to include new facts, circumstances, or law sufficient to support reconsideration of the motion. The court held that Smith had not demonstrated that he was being denied adequate law library access to justify an extension of time to file an amended complaint. On July 26, 2011, the court held a case management conference, where it noted that Smith had failed to file an amended complaint within the allotted time. Respondents advised that they would move to dismiss the matter, and the court set another management conference.

Respondents filed a request for dismissal of the complaint. On September 1, 2011, the court denied the request without prejudice, finding that respondents were required to move for dismissal and allow for briefing and argument rather than request dismissal. On September 23, 2011, respondents filed an ex parte application to shorten time to hear their motion to dismiss. On September 26, 2011, the court held a hearing on the application to shorten time, which it denied for lack of good cause and explained that the motion to dismiss could be heard on a normal briefing schedule. Respondents did not re-file the motion or request the court to set a hearing date on the motion to dismiss.

The request for dismissal was not contained in the record on appeal; however, it is apparent that a request was filed based on the court's order denying the request.

On November 7, 2011, Smith filed a motion for lifting the stay of discovery. On December 13, 2011, the court held a hearing on the motion for lifting the discovery stay. Smith explained that he knew he had to prepare an amended complaint, but that he believed that his inability to conduct discovery was stopping him from properly doing so. He noted that he should have stated that his purpose for requesting to lift the discovery stay to conduct further discovery was to assist in preparing an amended complaint, but he failed to do so in the motion. After hearing the parties' arguments, the court denied the motion to lift the discovery stay as moot since the stay had expired months earlier. The court also used its inherent powers to sua sponte set a motion to dismiss for failure to file an amended complaint within the 30-day period after the order for judgment on the pleadings was issued on April 22, 2011. In setting briefing for the court's sua sponte motion to dismiss, Smith asked the court if his opposition to the motion to dismiss could be in the form of a proposed amended complaint. The court stated it was up to Smith as to how he wanted to proceed. The court also stated: "I should also note that if the ... First Amended Complaint is filed by [January 3, 2012], this motion, the Court's motion [will] go off calendar."

There is no evidence that respondents filed a renewed motion for judgment on the pleadings after the court denied their ex parte request to hear the motion on shortened time.

On January 9, 2012, Smith filed a motion to compel discovery, a declaration regarding his inability to prepare and file an amended complaint, a provisional amended complaint, and a request for a continuance to adequately prepare an amended complaint. Smith explained that he had not obtained the discovery needed from respondents to draft an amended complaint, that he spent his law library time researching how to file a motion to compel discovery and, while he prepared what he termed as a "provisional, proposed amended complaint," he hoped that the court would not accept it and would rather provide him a continuance to obtain discovery and draft an amended complaint.

At the January 23, 2012, motion hearing regarding dismissal of the complaint, Smith reiterated how he lacked time to prepare an amended complaint and how, out of an abundance of caution, he had filed a provisional proposed amended complaint with the court. After hearing arguments from both parties, the court stated the following ruling on the record:

"In this matter the Court is ruling as follows: [Smith] has failed to either, one, file a First Amended Complaint that complies with the requirements of [rule] 2.112, that is, all causes of action to be separately pleaded, to set forth its nature, and to set forth the parties against whom each cause of action is directed; or two, file opposition that adequately justifies and excuses [Smith's] failure to file a First Amended Complaint within 30 days of the Court order served by mail on April 25th, 2011, as ordered by the Court.
"I'll note that [Smith] has filed a declaration that attempts to excuse his failure due to his lack of access to the prison law library and his need to conduct discovery before filing the First Amended Complaint.
"The events underlying this lawsuit took place in 2007. [Respondents] were identified as ten individual defendants, the State of California and CDCR and Does 1 through 40.
"[Smith] argued that the Court order of April 22nd, 2011, ... required that he identify Doe defendants before he filed his First Amended

Complaint. This is not true. The order of April 22nd, 2011, only held that the amendment to the Complaint was confusing in that it was not acceptable for [Smith] to refer to [respondents] as quote, either specially named below under this cause of action or currently identified as Does 1 through18, close quote.
"The order did not say that [Smith] could not plead allegations against Doe defendants, instead the order held that under [rule] 2.112, [Smith] must identify the persons against whom the cause of action is directed, a reference, to quote, either or, close quote, [respondents] was improper.
"The Court finds that [Smith's] professed inability to file his First Amended Complaint is contrived, not based on any logical reading of the Court's order, and it does not justify [Smith's] failure to file [his] First Amended Complaint within 30 days of the mailing of the order.
"[Smith] has ... failed to file an Amended Complaint within 30 days and has failed to set forth a legitimate and justifiable excuse for such failure, hence, the case is now ordered dismissed."


On May 16, 2012, Smith filed a motion for new trial or relief from judgment. Prior to the hearing on the motion, Smith filed a notice of appeal on June 13, 2012. On July 11, 2012, the court held the hearing on the motion. It found that despite the filing of the notice of appeal, it had jurisdiction over the motion for relief from judgment, which it denied, even taking into consideration that Smith had presented an amended complaint with his motion.

Smith filed several other motions, appeals, and other filings that were not related to the dismissal of the action. He challenges the denial of several of the motions in this appeal. The relevant details of those motions are described in addressing those claims below. Additionally, he filed two separate requests for judicial notice with this court on May 26, 2016, and September 26, 2017. In each instance, he requests this court to take notice of records of documents filed in the underlying action. Under Evidence Code section 452, a court may take judicial notice of the records of any court of this state. We therefore grant the motions to take judicial notice of the proffered court records. (Taus v. Loftus (2007) 40 Cal.4th 683, 726.)

DISCUSSION

I. Dismissal of Complaint

Smith challenges the trial court's grant of the motion for judgment on the pleadings, claiming that it failed to properly look at the claims made in the complaint in the light most favorable to him. He next claims that the court lacked jurisdiction to sua sponte set a motion to dismiss the complaint. Finally, he alleges that the court erred in granting the motion to dismiss, especially in light of the fact that he had provided the court with two different proposed amended complaints in an attempt to remedy the issues noted in the order on the motion for judgment on the pleadings. We review each issue in turn, starting with whether the court abused its discretion in granting the motion for judgment on the pleadings.

A. Judgment on the Pleadings

1. Standard of Review

On appeal, the standard of review of an order granting a motion for judgment on the pleadings is the same as that applicable to a judgment following the sustaining of a demurrer. (Ponderosa Homes, Inc. v. City of San Ramon (1994) 23 Cal.App.4th 1761, 1768.) Like a demurrer, a motion for judgment on the pleadings is confined to the face of the pleading under attack and all facts alleged are deemed admitted. (April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 815, 825.) "When reviewing a judgment dismissing a complaint after a successful demurrer, we assume the complaint's properly pleaded or implied factual allegations are true, and we give the complaint a reasonable interpretation, reading it in context." (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 320.) If we see a reasonable possibility that the plaintiff could cure the defect by amendment, then we conclude that the trial court abused its discretion in denying leave to amend. (Ibid.)

In addition, when a demurrer is sustained with leave to amend, but the plaintiff elects not to amend, it is presumed on appeal that the complaint states the strongest case possible. (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1091.) A reviewing court normally "resolve[s] all ambiguities and uncertainties raised by the demurrer against the plaintiff" when a demurrer is sustained with leave to amend and the plaintiff chooses not to amend. (Hooper v. Deukmejian (1981) 122 Cal.App.3d 987, 994; see Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1421; Ram v. OneWest Bank, FSB (2015) 234 Cal.App.4th 1, 22, fn. 3.) Thus, a judgment of dismissal following the failure to amend must be affirmed if the unamended complaint is objectionable on any ground raised in the demurrer. (Ram v. OneWest Bank, FSB, supra, at p. 10.)

"[A] judgment or order of the trial court is presumed correct and prejudicial error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) 'In the absence of a contrary showing in the record, all presumptions in favor of the trial court's action will be made by the appellate court....' (Bennett v. McCall (1993) 19 Cal.App.4th 122, 127.)" (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187.)

To the extent that Smith's additional challenges to the judgment call for a different standard of review, we will specifically note the standard when addressing his claims.

The fact that Smith is proceeding pro se does not change the standard of review. Self-represented litigants are not entitled to special consideration from judges. But there is a corollary: "Although self-represented litigants are not entitled to special treatment, they are entitled to the same treatment as a represented party." (Petrosyan v. Prince Corp. (2013) 223 Cal.App.4th 587, 594.) Self-represented litigants "are not entitled to special exemptions from the California Rules of Court or Code of Civil Procedure. [Citation.] They are, however, entitled to treatment equal to that of a represented party." (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284.)

2. Trial Court Ruling

The trial court issued the following ruling on respondents' motion for judgment on the pleadings:

"The complaint was the subject of a demurrer that was sustained with leave to amend at a hearing on October 9, 2009. Rather than filing a complete first amended complaint, on December 7, 2009, [Smith] filed a pleading entitled 'Plaintiff's Amendments to the Complaint Here.' The filing of this document was a substantial factor in the uncertainty as to the theory behind the causes of action brought by [Smith] and the persons or entities named in each cause of action. In addition, uncertainty in what causes of action have been brought by [Smith] and [respondents] named in each cause of action is due to [Smith's] failure to comply with the requirements of ... rule 2.112. Each cause of action in its title must set forth its number, its nature and the parties or parties to whom the cause of action is directed.
"It is unacceptable for [Smith] to have referred to [respondents] in the cause of action as being 'either specially named below under this cause of action or as currently identified as Does 1-18.' It is unacceptable for [Smith] to label a cause of action an 'intentional tort.' If [Smith's] first cause of action is for violation of 42 USC 1983, then the cause of action should be labeled as such and all elements of this cause of action must be pleaded and supported by ultimate facts pleaded plainly and succinctly. It is unacceptable for [Smith] to plead, as he did in paragraph 30, that the cause of action gives rise to claims under 42 USC 1983, state tort claims for intentional wrongful acts, and for injunctive and declaratory relief. All of these allegations violate the pleading requirements of rule 2.112 that each cause of action be brought separately. [Smith's] failure to comply with pleading requirements have resulted in [respondents] and this court having to guess what causes of action are contained within the complaint and its amendment.
"The argument that qualified immunity exists as a matter of law is moot as to Grannis, Hall and Cassesi, as they were not named as moving parties in the motion. The motion is otherwise granted on the grounds that the complaint and its amendment border on unintelligible and fail to comply with the pleading requirements as set forth in ... rule 2.112. [Smith] is given 30 days leave to amend after service of this ruling on the parties by the clerk of the court."


3. Analysis

a. Sustaining the Demurrer

"'When a demurrer is sustained with leave to amend, and the plaintiff chooses not to amend but to stand on the complaint, an appeal from the ensuing dismissal order may challenge the validity of the intermediate ruling sustaining the demurrer.'" (Lee v. Hanley (2015) 61 Cal.4th 1225, 1232, quoting County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 312.)

The trial court granted the motion for judgment on the pleadings based on Smith's failure to adequately and separately plead his causes of action against the various respondents. In doing so, the court did not address many of the other arguments presented by respondents in the motion, including the application of governmental immunity under Government Code sections 844.6 and 845.6, qualified immunity (see Saucier v. Katz (2001) 533 U.S. 194, 202) and that Smith's allegations did not support claims for treble or punitive damages (Code Civ. Proc., § 425.13).

The complaint, as filed, used form pleadings of causes of action for intentional torts and general negligence; however, as noted by the court, Smith did not specify clearly what claim he was presenting, and against which defendants. Rule 2.112 states: "Each separately stated cause of action, count, or defense must specifically state: [¶] (1) Its number (e.g., 'first cause of action'); [¶] (2) Its nature (e.g., 'for fraud'); [¶] (3) The party asserting it if more than one party is represented on the pleading (e.g., 'by plaintiff Jones'); and [¶] (4) The party or parties to whom it is directed (e.g., 'against defendant Smith')."

Reviewing the pleading, the court correctly found that several of Smith's claims alleged several causes of action collectively, rather than separately, and Smith failed to specifically describe how the elements of each cause of action were met. Moreover, Smith failed to individually list the defendants alleged in each claim.

The trial court did not address whether it was ultimately possible for Smith to state the causes of action alleged. Rather, it found that the complaint failed to meet basic pleading requirements, and it provided Smith the opportunity to amend the complaint. Sustaining a demurrer for uncertainty without leave to amend is disfavored, because ambiguities can be clarified under modern discovery procedures. (See Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) However, when a demurrer is sustained, but the plaintiff is provided leave to amend, it lacks the same prejudicial effect. Here, the court did not reach any conclusion with regard to whether Smith could state legally viable claims. Rather, the trial court provided him the opportunity to amend the pleading to separately and clearly state the causes of action alleged, and to which defendants they applied. The trial court did not abuse its discretion in granting the motion for judgment on the pleadings.

The court also took into consideration that it had previously sustained a demurrer alleging similar grounds and that Smith had filed amendments to the complaint with the court that created additional confusion with respect to the alleged claims.

b. Sua Sponte Order Setting Motion to Dismiss

Smith next contends that the trial court exceeded its authority or acted outside the bounds of its jurisdiction in sua sponte setting a motion to dismiss based on Smith's failure to file an amended complaint.

The California Supreme Court has explained that the phrase "'"lack of jurisdiction"'" has been "'applied to a case where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no "jurisdiction" (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.'" (Law Offices of Stanley J. Bell v. Shine, Browne & Diamond (1995) 36 Cal.App.4th 1011, 1022.) "'Speaking generally, any acts which exceed the defined power of a court in any instance, whether that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis, are in excess of jurisdiction, in so far as that term is used to indicate that those acts may be restrained by prohibition or annulled on certiorari.'" (Ibid.)

Although not authorized by statute, the court possessed authority to sua sponte set a motion to dismiss based on its inherent ability to control the disposition of causes on its docket. "'It is well established, in California and elsewhere, that a court has both the inherent authority and responsibility to fairly and efficiently administer all of the judicial proceedings that are pending before it, and that one important element of a court's inherent judicial authority in this regard is "the power ... to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance."'" (Briggs v. Brown (2017) 3 Cal.5th 808, 852; see, e.g., Hays v. Superior Court (1940) 16 Cal.2d 260, 264 ["There is nothing novel in the concept that a trial court has the power to exercise a reasonable control over all proceedings connected with the litigation before it. Such power necessarily exists as one of the inherent powers of the court and such power should be exercised by the courts in order to insure the orderly administration of justice."].)

To comply with the court's order on the motion for judgment on the pleadings and to continue to litigate the action, Smith was required to file an amended complaint. He failed to do so within the 30-day period ordered by the court. However, no mechanism automatically functions to dismiss the action. Respondents attempted to dismiss the complaint, but never followed proper procedures.

Smith could have chosen not to amend, knowing the action would be dismissed, allowing for the right to challenge the court's order on the motion for judgment on the pleadings. Smith's actions to attempt to conduct discovery and prepare proposed amended complaints belie any intent to have the action dismissed.

As described above, respondents assured the court that they would move to dismiss the action at a case management conference. They then filed a request for dismissal form and an ex parte application to file a motion to dismiss with the court, but never actually filed a properly noticed motion to dismiss. --------

The court issued a written order granting the motion for judgment on the pleadings on April 22, 2011. After an additional two months passed after the 30-day deadline to file an amended complaint, the court held a case management conference. Respondents stated that they would move to dismiss the action, but they failed to do so. On December 13, 2011, the court held a hearing and used its inherent powers to sua sponte set a motion to dismiss for failure to file an amended complaint.

Accordingly, six months passed after the motion for judgment on the pleadings was granted where Smith did not file an amended complaint and respondents failed to file a motion to dismiss the action. At that time, the court sua sponte set briefing on the motion to dismiss. Ideally, respondents would have properly filed a motion to dismiss but, as described, their attempts to do so were procedurally flawed. Further, over two additional months passed since respondents' second attempt to move to dismiss, and they had not taken further action to file a motion to dismiss. As respondents appeared unable to properly move to dismiss the case, the court used its inherent authority to set briefing for a motion to dismiss. Having granted the motion for judgment on the pleadings, the court had found the complaint lacking, and that it was inappropriate to proceed until an amended complaint was filed. In setting the motion to dismiss, the court attempted to compel Smith to file an amended complaint and even mentioned that if one was filed the motion would be vacated. The court was well within its inherent authority to set the motion to dismiss.

Further, there are no concerns regarding Smith's due process rights, as the court provided him the opportunity to file briefing, telephonically appear, and argue against dismissal at the hearing. "The constitutional guarantee of due process requires that a court give notice to a party and an opportunity to respond before sua sponte dismissing an action." (In re Marriage of Straczynski (2010) 189 Cal.App.4th 531, 538.) The court provided Smith sufficient process and, only upon reviewing his opposition and listening to his arguments at hearing, did the court dismiss the action. Accordingly, the court did not abuse its discretion in using its inherent authority to set the motion to dismiss.

c. Granting the Motion to Dismiss

Finally, we examine whether having set the motion to dismiss, the court abused its discretion in granting the motion to dismiss. Code of Civil Procedure section 581, governs dismissal of civil actions. Section 581, subdivision (f)(2), provides that a court "may dismiss the complaint as to that defendant ... [¶] ... [¶] 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." "The phrase 'may dismiss' means discretionary dismissal," and the provision affords the defendant the right to obtain a court order dismissing the action with prejudice. (Cano v. Glover (2006) 143 Cal.App.4th 326, 329-330.)

"Generally, 'the trial court has wide discretion in determining whether to allow the amendment, but the appropriate exercise of that discretion requires the trial court to consider a number of factors: "including the conduct of the moving party and the belated presentation of the amendment. [Citation.] ... The law is well settled that a long deferred presentation of the proposed amendment without a showing of excuse for the delay is itself a significant factor to uphold the trial court's denial of the amendment. [Citation.]" [Citation.] "The law is also clear that even if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial." [Citation.]'" (Emerald Bay Community Assn. v. Golden Eagle Ins. Corp. (2005) 130 Cal.App.4th 1078, 1097, quoting Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613 (Leader).)

We review a trial court's grant of a motion to dismiss under Code of Civil Procedure section 581, subdivision (f)(2), for abuse of discretion. (Harlan v. Department of Transportation (2005) 132 Cal.App.4th 868, 874; accord, Leader, supra, 89 Cal.App.4th at p. 613.) "Discretion is abused when the trial court's ruling is arbitrary, capricious, exceeds the bounds of reason or prevents a fair hearing from being held." (Link v. Cater (1998) 60 Cal.App.4th 1315, 1321.) "It is [the] appellant's burden to establish an abuse of discretion." (Gitmed v. General Motors Corp. (1994) 26 Cal.App.4th 824, 827.)

The trial court dismissed Smith's action based on his failure to file an amended complaint. It noted Smith attempted to excuse the failure to file an amended complaint because he lacked sufficient access to the law library and needed further discovery to properly state his claims. The court found the reasons contrived and unjustified. Smith, from his communications and filings with the court, knew and understood that he was required to file an amended complaint, but failed to do so. Rather, he focused his efforts in moving to compel discovery that he alleged would assist him in drafting the amended complaint. After the motion for judgment on the pleadings was granted, Smith filed motions for reconsideration and for extensions of time to file the amended complaint, all of which were denied. Smith also made several filings to attempt to conduct discovery, despite not having amended the complaint.

Finally, in opposing the motion to dismiss, Smith attached a proposed amended complaint. Smith explained in his opposition that he "opted to avail myself of the alternative option of filing an amended complaint," but noted that "this, too presents issues as I, ... have not been provided the discovery from [respondents] I have sought that is necessary for me to be able to meet this Honorable Court's order I present an amended complaint, as well as my own desire that I present an amended complaint that is satisfactory and adequate." As a result, and in an attempt to show good faith in attempting to meet the court's orders, Smith submitted what he considered a "'provisional proposed amended complaint,'" but noted that "perhaps ironically if not illogically, I am hoping this Honorable Court refuses to accept it" and rather allows him to obtain discovery and extend the deadline for filing the amended complaint. He continued, "[i]n any event, although I readily concede the frankly unsatisfactory nature of the provisional, proposed amended complaint at Exhibit A here, I now respectfully submit it in the hope I will be permitted an opportunity to file an adequate one upon the providing of discovery." He concluded, that "given these circumstances, I would actually object to being forced to proceed on the provisional, proposed amended complaint" because he believed he was forced to remove any reference to Doe defendants.

What Smith's declaration in opposition makes clear is that, despite providing a proposed amended complaint, it was not his intent or desire for the proposed amended complaint to be filed. Smith did not file the amended complaint, but only provided it as an exhibit in support of his opposition to the motion to dismiss. Further, the fact that he stated that he would object to the court forcing him to proceed with the amended complaint indicates that the court properly construed his filing as an opposition rather than the submission of an amended complaint. Over six months had passed since the original deadline to file the amended complaint expired and when the court sua sponte set the motion to dismiss. While Smith was aware that he was required to file an amended complaint, he made extensive efforts to avoid doing so in the attempt to conduct further discovery. The court was justified in dismissing the complaint. It determined that further discovery was not required to prepare and file an amended complaint, and that Smith had not shown that there was good cause to extend the filing deadline any later. The court was well within its bounds to dismiss the action based on Smith's failure to file an amended complaint, despite having multiple opportunities to do so.

II. Challenges to Denials of Motions

Smith presents several other challenges in his appeal. We shall address each in turn.

A. Due Process

Smith asserts that his due process rights were violated by the court's denials of his motions, including those for meaningful access of the court. "California courts, pursuant to the principles of the in forma pauperis doctrine, have the inherent discretion to facilitate an indigent civil litigant's equal access to the judicial process even when the relevant statutory provisions that impose fees or other expenses do not themselves contain an exception for needy litigants." (Jameson v. Desta (2018) 5 Cal.5th 594, 605.) "Judicial authority to facilitate meaningful access to indigent litigants extends as well to excusing statutorily imposed expenses that are intended to protect third parties (e.g., injunction or damage bonds) and to devising alternative procedures (e.g., additional methods of service or meaningful access) so that indigent litigants are not, as a practical matter, denied their day in court." (Ibid.)

While the court denied many of the motions that Smith filed, Smith provided no specific detail, beyond the fact that the court's rulings were not in his favor, as to how or why his access to the court was curtailed. Smith was not prevented from preparing or filing documents with the court or from telephonically appearing at the hearings. The fact that the motions and other filings were denied is not evidence that Smith was denied meaningful access to the courts. Moreover, a fundamental rule of appellate review is that the appellant must affirmatively show prejudicial error. (Scheenstra v. California Dairies, Inc. (2013) 213 Cal.App.4th 370, 403 (Scheenstra); Denham v. Superior Court, supra, 2 Cal.3d at p. 564.) Smith has not specifically described how he was prejudiced. Although he claims that his right access the courts and the law library was limited, his true underlying concern was that he was unable to obtain the necessary discovery to properly amend his complaint. His claims regarding how the court impeded his right to conduct discovery are separately addressed below. Accordingly, he is not entitled to relief.

B. Independent Experts

Smith asserts that reversal of the trial court's dismissal is warranted because the trial court denied his request for independent experts.

Evidence Code section 731, subdivision (b), provides:

"In any county in which the superior court so provides, the compensation fixed under [Evidence Code] Section 730 for medical experts appointed for the court's needs in civil actions shall be a charge against the court. In any county in which the board of supervisors so provides, the compensation fixed under [Evidence Code] Section 730 for medical experts appointed in civil actions, for purposes other than the court's needs, shall be a charge against and paid out of the treasury of that county on order of the court."

The trial court's written order denying Smith's request for experts, stated:
"During the hearing on April 15, 2011, the court denied [Smith's] motion for appointment of medical and dental expert witnesses under Evidence Code section 730. The court ruled that it does not have authority to order that a medical or dental expert be paid out of public funds when such appointment is for an indigent party in a civil lawsuit for medical malpractice. (County of Fresno v Superior Court (1978) 82 Cal.App.3d 191, 195 [no authority to order expenditure of public funds to pay an attorney to represent an indigent civil litigant sued in a wrongful death action].) No funds are available to this court from which to pay an expert to represent [Smith] under Evidence Code sections 730 and 731. The motion is denied."


Evidence Code section 730 does not confer an absolute right upon a party in a civil action to have an expert appointed. Rather, the matter is left to the trial court's discretion. (In re Marriage of E.U. & J.E. (2012) 212 Cal.App.4th 1377, 1389.) Moreover, "[i]n practice, courts rarely use this power in civil cases." (Wegner, Fairbank, Epstein & Chernow, Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2017) ¶ 8:722, p. 8C-126, italics omitted.) Smith has provided no facts or authority demonstrating the court abused its discretion in not appointing an expert in his civil case alleging the denial of medical care. At the time of the denial, respondents were challenging the sufficiency of Smith's pleadings. Smith has not shown that the court erred in denying his request for an expert at the preliminary stages of the action.

C. Discovery

Smith next claims that the court abused its discretion by not allowing him to conduct discovery he alleged was necessary to amend the complaint. At the hearing on February 16, 2011, Smith agreed to stipulate to stay discovery until April 15, 2011, to allow the court to adjudicate the motion for judgment on the pleadings. On November 11, 2011, Smith moved to have the discovery stay lifted. The motion was heard on December 13, 2011, and the court denied the motion as moot as the stipulated discovery stay had already expired and there was no stay in place at the time of the motion.

At the December 13, 2011, case management conference, the court sua sponte set a date for a motion to dismiss to be heard on January 23, 2012. On January 9, 2012, Smith filed a motion to compel discovery from respondents, which was to be heard on February 7, 2012. Accordingly, the hearing on the motion to dismiss was already set prior to the motion to compel, and the motion to compel was made moot by granting the motion to dismiss. Smith did not attempt to expedite the motion to compel to have it heard prior to the motion to dismiss. Moreover, Smith had a diminished right and expectation to discovery once the court found his complaint to be deficient.

When, as here, a plaintiff does not have a viable complaint filed in the action due to a successful demurrer or motion for judgment on the pleadings, it is not an abuse of discretion not to allow further discovery if it "would only be an unnecessary and burdensome additional expense to respondents." (Terminals Equipment Co. v. City and County of San Francisco (1990) 221 Cal.App.3d 234, 247; accord, Pacific Architects Collaborative v. State of California (1979) 100 Cal.App.3d 110, 127; Silver v. City of Los Angeles (1966) 245 Cal.App.2d 673, 674-675 ["Once it is recognized that the complaint shows that [the] plaintiff has no claim, all concerned should be spared the expense of further proceedings."].) But the court did use its discretion to limit Smith's right to discovery. The parties agreed to stipulate to stay discovery for a month. After the stay expired, Smith failed to conduct discovery based on his mistaken belief that the stay was still in effect.

In addition, to the extent Smith required relevant discovery to amend his complaint, he failed to present argument as to what discovery he desired and why it was needed. The court had granted the motion for judgment on the pleadings based on Smith's failure to separately state each cause of action and which respondents were liable for each cause of action. There is no indication that Smith was required to present additional detail to support his claims. Rather, he failed to draft his complaint to meet the pleading requirements set forth in rule 2.112.

Smith also failed to seek such discovery in a timely manner after the motion for judgment on the pleadings was granted. He waited over six months to file the motion to compel and only after a hearing on the motion to dismiss was set. The delay in conducting discovery was not attributable to the court. Instead, it was due to Smith's mistaken belief that the discovery stay remained in effect. The court did not abuse its discretion in ruling on motions relating to Smith's discovery nor did it impede his efforts to conduct discovery.

D. Counsel of Record

Smith next contends that the trial court improperly accepted a notice of removal from respondents' counsel who had yet to appear as counsel of record. The record reflects that respondents' new counsel filed the notice of removal on November 30, 2009, and filed the notice of substitution of counsel on December 9, 2009. Smith is correct that the notice of removal was filed before counsel filed the substitution of counsel form.

In order to obtain a reversal based upon a procedural flaw, such as defective notice of a filing, the appellant must demonstrate not only that the notice was defective, but that he or she was prejudiced. (Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1289.) As explained in Lever v. Garoogian (1974) 41 Cal.App.3d 37, 40, "Procedural defects which do not affect the substantial rights of the parties do not constitute reversible error. (Code Civ. Proc., § 475.)" Smith cannot show prejudice from the error. Even if it was error for the court to remove the action, the case was remanded back to superior court. Once remanded back to superior court, Smith was not limited in taking what action or filing a motion he deemed appropriate. Further, the ultimate reason for dismissal of the matter was based on his failure to file an amended complaint. His failure to file an amended complaint was not related to the removal of the action to federal court. Smith failed to show prejudice from the error.

E. Request for Default

On October 18, 2010, Smith filed a request for entry of default against respondents. The court denied the request, noting that respondents had filed a demurrer to the complaint. The court did not err. The filing of the demurrer served as a general appearance in the action. (Code Civ. Proc., § 1014.) After the court sustained the demurrer, Smith filed amendments to the complaint, but never filed an amended complaint. Accordingly, there was never an amended complaint on file triggering respondents' need to file a response. The court did not err in denying the request for default.

F. Challenges to Respondents' Answer

Smith filed a demurrer and moved to strike respondents' answer. The court denied the filing and noted that there was no legal basis for setting aside the answer and entering default. Smith correctly notes that California law allows for demurrers to be filed with respect to an answer. (Code Civ. Proc., § 430.20.) Smith argues that the court erred in denying the demurrer and motion to strike because the answer does not allege any facts. The answer does not allege facts; rather, respondents generally denied each allegation of Smith's unverified complaint. Code of Civil Procedure section 431.30, subdivision (d), states that a general denial is sufficient to respond to the allegations of an unverified complaint. The answer was sufficient, and the court did not err in denying the motions.

Moreover, a fundamental rule of appellate review is that the appellant must affirmatively show prejudicial error. (Scheenstra, supra, 213 Cal.App.4th at p. 403.) Even had the court erred, Smith has not shown how he was prejudiced by the error. The reason the action was dismissed was based on his failure to file an amended complaint after the court granted the motion for judgment on the pleadings. Accordingly, any deficiencies in the answer were not relevant to issues that resulted in the dismissal of the action.

G. Denial of Sanctions Motion

Smith next argues that the trial court abused its discretion in denying his motion for sanctions. The motion requested sanctions due to respondents' "repeated inflammatory, scurrilous, and false attacks" on Smith's character submitted in respondents' case management statement. Smith alleged the following were false or misleading statements in respondents' case management conference statement: that respondents improperly stated that Smith's back problems were related to scoliosis, that Smith was litigious and had sued CDCR on numerous previous occasions, that respondents falsely stated that the federal district court remanded because of lack of subject matter jurisdiction when it was because removal was untimely. Smith conceded that he had filed three actions against CDCR while incarcerated for over 30 years, and that the statement was made to wrongly place him in a bad light in front of the court. The court denied the motion for sanctions and noted that Smith's redress for any objection to the statements in respondents' case management statement was to respond with statements in his case management statement addressing his concerns. Further, the court noted that Smith failed to comply with the procedures set forth in Code of Civil Procedure section 128.7.

"Under Code of Civil Procedure section 128.7, a court may impose sanctions for filing a pleading if the court concludes the pleading was filed for an improper purpose or was indisputably without merit, either legally or factually. [Citation.] ... A claim is factually frivolous if it is 'not well grounded in fact' and it is legally frivolous if it is 'not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.' [Citation.] In either case, to obtain sanctions, the moving party must show the party's conduct in asserting the claim was objectively unreasonable. [Citation.] A claim is objectively unreasonable if 'any reasonable attorney would agree that [it] is totally and completely without merit.'" (Peake v. Underwood (2014) 227 Cal.App.4th 428, 440.) Code of Civil Procedure section 128.7 "'must not be construed so as to conflict with the primary duty of an attorney to represent his or her client zealously. Forceful representation often requires that an attorney attempt to read a case or an agreement in an innovative though sensible way. Our law is constantly evolving, and effective representation sometimes compels attorneys to take the lead in that evolution.'" (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167-168.) A trial court's finding that a claim was presented for an improper purpose is reviewed for abuse of discretion. (Ponce v. Wells Fargo Bank (2018) 21 Cal.App.5th 253, 260-261.)

Even assuming that a case management statement is "a pleading, petition, written notice of motion, or other similar paper" (Code Civ. Proc., § 128.7, italics added) to which Code of Civil Procedure section 128.7 applies, Smith has not shown that the court abused its discretion in denying the motion for sanctions. While Smith did not approve of respondents' counsel's description of the status of the case, he has not shown that respondents' counsel presented statements primarily for an improper purpose or otherwise objectively unreasonable. First, respondents' counsel, in summarizing Smith's claims, described Smith's claim for deliberate indifference to his back problems and used the term scoliosis. Smith concedes that the error was minor. Respondents' counsel first broadly described the injuries alleged by Smith relating to his back. Even if respondents' counsel improperly used the term scoliosis to describe Smith's injuries, respondents' inaccuracy in summarizing Smith's claim was not objectively unreasonable as it would not reasonably be relied upon by the court for any purpose other than obtaining a general understanding of the claims presented. Smith also complains that respondents' counsel described him as litigious, but notes that he has filed three civil actions while incarcerated. Likewise, Smith objected to the statement that respondents intended to file a motion to compel because Smith was "'notorious for not responding to discovery.'" Respondents' counsel was entitled to describe his subjective belief regarding whether Smith's actions could be considered litigious. While Smith disagreed with the description, the court did not abuse its discretion in not sanctioning respondents' counsel for the use of subjective descriptions in an attempt to zealously advocate his clients' position. (Guillemin v. Stein, supra, 104 Cal.App.4th at pp. 167-168.)

H. Postjudgment Motion

Smith, in his final claim, challenges the denial of his postjudgment motions. After the court dismissed the case on January 23, 2012, Smith filed a motion for relief from judgment or, alternatively, a new trial, on May 16, 2012.

In his declaration in support of the motion, Smith extensively restated the history of the case. Relevant to the motion, Smith explained how he discovered that despite missing the deadline to file an amended complaint, he was not precluded from filing one. However, he believed that he could not do so until he conducted further discovery and mistakenly believed that a discovery stay was still in place. Accordingly, he prepared and filed a motion to lift the discovery stay rather than prepare and file an amended complaint. Smith also noted that when the trial court set the motion to dismiss, Smith inquired if he could respond by filing a motion to dismiss and the court confirmed that he could do so. However, rather than preparing an amended complaint, Smith spent his time drafting a motion to compel discovery and described his other hinderances in responding to the motion to dismiss.

The court denied the motion for relief from judgment and noted that there was no basis for granting a new trial or setting aside judgment. This was true even considering that Smith again presented a proposed amended complaint with his postjudgment motion. The trial court held that the failure to file the amended complaint was not due to excusable mistake or neglect, or any other theory that would entitle Smith to relief.

For the same reasons set forth with respect to the motion to dismiss, we find that the court did not abuse its discretion in denying the motion for relief from judgment. Smith did not file an amended complaint, despite being ordered to do so by the court and despite being provided over six months in which to do so. Smith was aware that he had been ordered to file an amended complaint, and that had he filed one, the dismissal hearing would be taken off calendar. However, he refused to comply with the court's orders based on his desire to conduct discovery, and the court was within its discretion to dismiss the complaint and, likewise, deny the motion for relief from judgment.

DISPOSITION

The judgment is affirmed. In the interest of justice, each party shall pay its own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

/s/_________


MEEHAN, J. WE CONCUR: /s/_________
POOCHIGIAN, ACTING P.J. /s/_________
SNAUFFER, J.