Briggs v. Select Portfolio Servicing, Inc.

CHAYO BRIGGS, Plaintiff and Appellant, v. SELECT PORTFOLIO SERVICING, INC., Defendant and Respondent.

E074699

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

June 8, 2021

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CIVDS1921322)

OPINION

APPEAL from the Superior Court of San Bernardino County. Keith D. Davis, Judge. Affirmed.

Chayo Briggs, in pro. per., for Plaintiff and Appellant.

Kutak Rock and Steven M. Dailey for Defendant and Respondent.

Plaintiff Chayo Briggs (Briggs) sued defendant Select Portfolio Servicing, Inc. (Select), alleging it committed fraud and other torts while reviewing Briggs' request for mortgage assistance and when it foreclosed on his mortgage and recorded a notice of trustee's sale. The trial court sustained Select's demurrer to Briggs' complaint, but granted Briggs 30 days leave to file an amended complaint. When Briggs failed to file an amended complaint within 30 calendar days of the order, the court granted Select's request for a judgment of dismissal of the lawsuit with prejudice. On appeal, Briggs, who represents himself, argues the trial court denied him due process of law by not granting him additional time to file an opposition to the demurrer after his attorney abandoned him and by dismissing the lawsuit without allowing him additional time to conduct research and prepare an amended complaint.

It is patently clear on the face of the record that the trial court prematurely dismissed the lawsuit before the time had run for Briggs to file an amended complaint. Relevant here, section 472b of the Code of Civil Procedure¹ expressly and unequivocally provides that the time to file an amended complaint runs from the service of notice of an order sustaining a demurrer with leave to amend, and not from the actual order. In reliance on the trial court's order, which purported to state Briggs needed to file an amended complaint by a set date, Select fell into a trap for the unwary and did not serve Briggs with notice until much later and, as a matter of law, granted Briggs an additional 30 plus days in which to file an amended complaint. Because the trial court granted Select's request to dismiss the lawsuit before the time to amend had lapsed, we must conclude it erred.

However, the error is not reversible per se. And, because Briggs has not argued he could have amended his complaint to state a viable cause of action, we conclude the error was harmless. Therefore, the judgment is affirmed.

I.

PROCEDURAL BACKGROUND²

Briggs filed his complaint in this lawsuit on July 24, 2019. He was represented by counsel at that time. Select filed and served its demurrer on August 23. On October 28, Briggs filed and served a substitution of attorney and informed the trial court and Select that, from then on, he would represent himself. Briggs appeared for the November 6 hearing on the demurrer. The minute order indicates, "No opposition presented." The trial court stated its tentative ruling on the demurrer, "encourage[ed] [Briggs] to seek legal counsel," and provided him "with the paperwork containing the contact information for various legal aid groups." After hearing arguments, the court sustained the demurrer, granted Briggs "30 days leave to amend," and ordered counsel for Select to give notice. The minute order states: "The First Amended Complaint is due to be served and filed no later than 12/6/19." On December 10, 2019—four days after the last date Briggs wassupposedly to file his amended complaint—Select served Briggs with notice of the ruling by overnight delivery. The notice stated Briggs had until December 6, 2019, to file an amended complaint.

On January 7, 2020, Select filed an ex parte application requesting the trial court dismiss the action pursuant to section 581, subdivision (f)(2), because Briggs had not filed an amended complaint on or before December 6, 2019. Briggs did not file an opposition or appear at the hearing conducted the next day. The trial court granted the application and dismissed the action. A formal judgment of dismissal was entered January 22, 2020.

II.

DISCUSSION

"To prevail on appeal, an appellant must establish both error and prejudice from that error." (WFG National Title Ins. Co. v. Wells Fargo Bank, N.A. (2020) 51 Cal.App.5th 881, 894.) It is the burden of the party challenging a judgment on appeal, including a self-represented one, to provide an adequate record to assess error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) The appellate record here does not include a reporter's transcript. We must, therefore, treat this as an appeal "'"on the judgment roll."'" (Kucker v. Kucker (2011) 192 Cal.App.4th 90, 93.) Accordingly, our review is limited to determining whether any error "'"appears on the face of the record."'" (Ibid.)

A. The Trial Court Clearly Erred By Prematurely Dismissing Briggs' Complaint.

The trial court dismissed Briggs' lawsuit pursuant to Code of Civil Procedure section 581, subdivision (f)(2), which provides the court may dismiss the complaint if, "after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal." A request for dismissal of "the entire action and for entry of judgment" under section 581, subdivision (f)(2), may be made ex parte. (Cal. Rules of Court, rule 3.1320(h).) Such a judgment of dismissal must be made with prejudice. (Cano v. Glover (2006) 143 Cal.App.4th 326, 329-330; Kruss v. Booth (2010) 185 Cal.App.4th 699, 713, fn. 14.)

Usually, we apply the deferential abuse of discretion standard of review to a dismissal under section 581, subdivision (f)(2). (Nuño v. California State University, Bakersfield (2020) 47 Cal.App.5th 799, 801-802; Gitmed v. General Motors Corp. (1994) 26 Cal.App.4th 824, 827.) But the basic question posed by this appeal is not whether the dismissal was an appropriate exercise of discretion, but whether the court had the power to dismiss the lawsuit when it did. The scope of the trial court's authority under section 581, subdivision (f)(2), is a matter of statutory construction we review de novo. (City of Desert Hot Springs v. Valenti (2019) 43 Cal.App.5th 788, 793.)

As already noted, the trial court may dismiss a lawsuit pursuant to section 581, subdivision (f)(2), only if the plaintiff fails to amend "within the time allowed by the court." When the trial court sustains a demurrer, "the court may grant leave to amend the pleading upon any terms as may be just and shall fix the time within which theamendment or amended pleading shall be filed." (§ 472a, subd. (c).) The court has broad discretion to determine the time within which the plaintiff must file an amended complaint.³ (Vestal v. Young (1905) 147 Cal. 715, 721.) But, that time "runs from the service of notice of the decision or order, unless the notice is waived in open court, and the waiver entered in the minutes." (§ 472b.) In other words, absent a proper waiver of notice, "the time to amend a complaint following a demurrer runs from notice of the ruling, not the ruling itself . . . ." (People v. $20,000 U.S. Currency (1991) 235 Cal.App.3d 682, 691; accord, Parris v. Cave (1985) 174 Cal.App.3d 292, 294 ["[S]ection 472b requires service of notice of the order sustaining or overruling a demurrer in order to start the time running on the right to amend."].) And if, as here, the notice is made by express overnight delivery, the time to file an amended complaint is extended by two additional court days. (§ 1013, subd. (c); see People v. $20,000 U.S. Currency, at p. 689 ["Because the time to amend . . . runs specifically from the service of the notice [citations], section 1013 ordinarily would apply."].)

In its supplemental brief and during oral argument before this court, Select argued there is a crucial distinction between ordering a plaintiff to file an amended complaint on or before a "fixed date" or "date certain," on the one hand, and giving the plaintiff a "numerical number of days" within which to amend, on the other. Because the trial court "fixed" the time within which Briggs had to amend his complaint to no later thanDecember 6, 2009, or exactly 30 days, Select argues service of the notice of ruling did not extend the time for him to amend and, consequently, the dismissal was not premature. But this argument ignores the plain language of section 472b, which, we repeat, states the time to amend "runs from the service of notice of the decision or order" unless notice is waived. (Italics added.) "'"[W]here . . . the language [of a statute] is clear, there can be no room for interpretation."'" (Walker v. Superior Court (1988) 47 Cal.3d 112, 121; accord, City of Desert Hot Springs v. Valenti, supra, 43 Cal.App.5th at p. 793 ["'"If there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs."'"].)

True, had the parties waived notice in open court and the waiver had been placed on the record, Briggs would have had exactly 30 days from the date of the order, or until December 6, 2019, to file an amended complaint. But, the trial court expressly directed Select to give notice. Therefore, notwithstanding language in the trial court's order to the contrary, the 30 days for Briggs to file an amended complaint did not begin to run until Select served Briggs with notice. (§ 472b.)

The leading treatise on the subject advises parties against falling into the trap for the unwary in which Select fell. "Even if the judge makes the ruling [on the demurrer] in open court before both counsel, the time within which to . . . amend does not begin to run...