California Court of Appeal Dec 16, 2020 No. E073358Unpublished
Filed 12/16/20 Patkins v. Piantini CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
DAVID PATKINS,
Plaintiff and Appellant, E073358
v. (Super.Ct.No. CIVDS1504254)
REBECCA PIANTINI, OPINION
Defendant and Respondent.
APPEAL from the Superior Court of San Bernardino County. Brian S.
McCarville, Judge. Affirmed in part; reversed in part.
David C. Patkins, in pro. per., for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
Plaintiff and appellant, David C. Patkins (Plaintiff), requested entry of a default
judgment against defendant and respondent, Rebecca Piantini, M.D. (Defendant). The
trial court found (1) Plaintiff’s causes of action were barred by the statute of limitations;
and (2) Plaintiff failed to demonstrate liability. The trial court denied Plaintiff’s request
for entry of a default judgment and dismissed the case with prejudice.
1
Plaintiff raises three issues on appeal. First, Plaintiff contends the trial court
erred by sua sponte raising the statute of limitations. Second, Plaintiff asserts the trial
court erred by requiring him to establish liability when liability was established by
Defendant’s default. Third, Plaintiff contends the trial court erred by dismissing the
case without notice. We affirm in part and reverse in part.1
FACTUAL AND PROCEDURAL HISTORY
A. CRIMINAL CASE
Plaintiff’s six-month old son (the victim) suffered skull fractures and a brain
injury and was transported to the hospital, by ambulance, on April 28, 2001. The victim
died in the hospital on May 1, 2001. (People v. Patkins (Nov. 19, 2003, E032757)
[nonpub. opn.] [2003 Cal. App. Unpub. LEXIS 10853, [2], 4-6].)2 Defendant worked as
1 Plaintiff attached exhibits to his brief in lieu of oral argument (ILOA Brief). A party may attach exhibits to an appellate brief if the exhibits are already in the appellate record and do not exceed 10 pages. (Cal. Rules of Court, rule 8.204(d).) Plaintiff does not explain if the exhibits attached to his ILOA Brief are also part of the record of appeal. Additionally, Plaintiff’s exhibits are approximately 90 pages in length. Accordingly, we do not consider the exhibits attached to Plaintiff’s ILOA Brief. (Cal. Rules of Court, rule 8.204(d).) Also, in the ILOA Brief, Plaintiff requests the appointment of counsel. We deny Plaintiff’s request. (County of Fresno v. Superior Court (1978) 82 Cal.App.3d 191, 195 [“[O]ur independent review of the authorities in this and other states has failed to turn up a single case wherein a court has held that an indigent civil litigant is entitled to court-appointed counsel at public expense.”].)
2 On our own motion, we take judicial notice of our unpublished opinion in People v. Patkins (Nov. 19, 2003, E032757) [nonpub. opn.] [2003 Cal. App. Unpub. LEXIS 10853]. (Evid. Code, § 452, subd. (d); see also Pacific Gas & Electric Co. v. City and County of San Francisco (2012) 206 Cal.App.4th 897, 907, fn. 10 [an unpublished case may be cited for factual background purposes].) In the record for the instant appeal, Plaintiff provided an incomplete copy of our opinion in his criminal case.
2
a forensic pediatrician. Defendant wrote a medical report about the victim that included
the victim’s medical history, observations of the victim, and her opinion that the
victim’s death was caused by abusive head trauma. A jury found defendant guilty of the
second-degree murder of the victim (Pen. Code, § 187), child abuse resulting in death
(Pen. Code, § 273a), and possession of brass knuckles (Pen. Code, § 12020, subd. (a)).
In the criminal case, the trial court sentenced defendant to prison for a term of 59 years
to life. In 2003, this court affirmed the judgment in defendant’s criminal case. (People
In March 2015, Plaintiff sued Defendant for (1) fraud; (2) intentional infliction of
emotional distress; and (3) violations of the Business and Professions Code (Bus. &
Prof. Code, §§ 2230.5, subd. (c), 2234, subds. (d) & (e), 2262). Plaintiff alleged that
Defendant attended the victim’s autopsy and, by means of fraud, affected the San
Bernardino County deputy medical examiner’s conclusion concerning the victim’s
cause of death. Plaintiff asserted the autopsy findings did not support abusive head
trauma as the victim’s cause of death; however, because of Defendant’s fraud, abusive
head trauma was listed as the victim’s cause of death. Plaintiff alleged the statute of
limitations had been tolled because, since 2003, Plaintiff had been diligently trying to
locate missing medical records by making demands upon various agencies. In 2014,
Plaintiff gained access to medical books and was able to discover Defendant’s alleged
fraud.
3
In July 2015, at Plaintiff’s request, a trial court clerk entered Defendant’s default.
In September 2015, the trial court denied Plaintiff’s request for a default judgment and
dismissed Plaintiff’s case. Plaintiff appealed. In September 2017, this court affirmed
the denial of the request for a default judgment but reversed the dismissal of the case.
The denial of the request was affirmed because Plaintiff failed to allege causation. We
explained that Plaintiff failed to allege that he was convicted of murder or incarcerated,
and therefore, there was no causation between Defendant’s alleged acts and Plaintiff’s
alleged harm. The dismissal was reversed because there was no notice given to Plaintiff
that the case might be dismissed, e.g., by issuing an order to show cause (OSC) why the
case should not be dismissed.
C. EVENTS OCCURRING AFTER ISSUANCE OF THE REMITTITUR
On December 5, 2017, the trial court set an OSC re: dismissal returnable on
April 17, 2018. On December 28, Plaintiff filed a First Amended Complaint (FAC).
The FAC included causes of action for fraud/misrepresentation, fraud/concealment, and
intentional infliction of emotional distress. Plaintiff alleged that he became aware of
Defendant’s fraud in 2014 when he gained access to medical books. Plaintiff alleged
the victim’s head trauma occurred when Plaintiff accidentally fell on the stairs while
holding the victim. The fall caused the victim’s head to strike the edge of a step.
Plaintiff alleged that Defendant falsely opined that the victim had been shaken and died
of abusive head trauma, in contradiction to the autopsy findings. Plaintiff attached a
reporter’s transcript to his FAC, which reflects a deputy medical examiner’s testimony
indicating the victim may have been shaken but that his brain injury likely occurred
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from the same blunt force trauma that caused him to suffer a skull fracture. Plaintiff
asserted that as a result of Defendant’s acts, Plaintiff suffered a murder conviction and a
loss of liberty. Plaintiff prayed for general damages of $250,000 or the maximum
allowed by law and punitive damages in an unspecified amount.
On March 23, 2018, a trial court clerk entered Defendant’s default. On April 17,
the trial court continued the hearing on the OSC re: dismissal to June 18. On May 18,
the trial court rejected Plaintiff’s default judgment packet because Defendant had not
been properly served with the summons and complaint. Defendant’s default was
vacated.
Plaintiff filed an ex parte motion for clarification of the failure to properly serve
Defendant. The court held a hearing on the motion. Plaintiff was not present. The trial
court read into the record Code of Civil Procedure section 417.20, which concerns out-
of-state service, and then ordered the court reporter to prepare a transcript and send it to
Plaintiff. The court continued the matter to allow Plaintiff to file further documents in
support of his ex parte motion.
Plaintiff appeared via telephone at the continued hearing. The trial court again
found service on Defendant was not proper. The court directed Plaintiff to Code of
Civil Procedure section 415.30, which concerns service by mail. On August 28, 2018,
the trial court rejected Plaintiff’s default judgment packet because the service of the
summons and complaint did not comply with Code of Civil Procedure section 415.40,
in that Defendant did not sign the return receipt.
5
On October 10, 2018, Plaintiff requested the entry of Defendant’s default, and a
court clerk entered the default. Plaintiff filed the declaration of Hector Sanchez along
with a brief concerning service of process. On December 19, 2018, the trial court held a
hearing on the status of service in the case. The trial court “deemed service of the
summons and complaint valid as of today” and continued the matter to allow Plaintiff to
submit a default judgment packet. On April 18, 2019, the trial court set a default prove-
up hearing for July 26.
On July 26, 2019, Plaintiff attended the hearing via Skype. The trial court found
“[P]laintiff is attempting to give expert medical testimony in order to contradict
[D]efendant’s testimony during [Plaintiff’s] criminal trial, which is inappropriate as [he]
is not qualified to do so.” Further, the trial court found “from the evidence presented,
the testimony of [P]laintiff, and documents filed, that the alleged injury to [the victim]
occurred in April of 2001. The Court [found] that plaintiff complained of perjury by
[Defendant] to the Medical Board and the Board responded in 2003. In 2006 [Plaintiff]
made another complaint which was also responded to. The Court [found] that plaintiff
was on notice of the allegations as late as 2006, but did not file his complaint until
March 19, 2015. [¶] The Court [found] no basis to pursue the case based upon
expiration of the statute of limitations. [¶] The Court [found] nothing has been
established that would suggest the statute of limitations has been tolled for any
purpose.”
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Further, the court found that “[P]laintiff provided no clear and convincing
evidence that [Defendant] did anything wrong, or even by preponderance of the
evidence if considered in a general civil standard, and there is no expert testimony that
she did anything wrong.” The trial court denied Plaintiff’s request for a default
judgment and dismissed the case with prejudice.
DISCUSSION
A. STATUTE OF LIMITATIONS
Plaintiff contends the trial court erred by sua sponte raising the statute of
limitations because (1) the trial court was advocating as Defendant’s counsel; and
(2) the court disregarded the allegations in the FAC pertaining to the tolling of the
statute of limitations.
“The statute of limitations is a defense that can be waived.” (RRLH, Inc. v.
Saddleback Valley Unified School Dist. (1990) 222 Cal.App.3d 1602, 1605, fn. 2.) That
means the statute of limitations “is a ‘personal privilege’ to be asserted or waived at the
option of the one entitled to assert it[;] the statute must be affirmatively invoked by him
by appropriate pleading or its benefits to him are waived.” (Bell v. Travelers Indem.
Co. of Hartford, Conn. (1963) 213 Cal.App.2d 541, 547.) If a party wants to raise a
statute of limitations defense, it should be raised by demurrer or in an answer.
(Berendsen v. McIver (1954) 126 Cal.App.2d 347, 351.) “The essence of the rule
requiring the statute [of limitations] to be pleaded is to apprise plaintiff that defendant
intends to rely upon that defense.” (Hall v. Chamberlain (1948) 31 Cal.2d 673, 680.)
7
It was not the trial court’s role to raise a statute of limitations defense on behalf
of Defendant. In the instant case, Defendant may have made a tactical decision to not
answer the FAC. (See Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267,
281-282 (Kim) [defaulting can be a tactical move].) Defendant’s decision not to answer
the FAC or her failure to answer the FAC does not give the trial court the authority to
raise a defense that must be affirmatively and personally raised by Defendant. (O’Neil
v. Spillane (1975) 45 Cal.App.3d 147, 156 [“It is blackletter law that the defense of the
statute of limitations is a personal privilege which must be affirmatively invoked in the
lower court by appropriate pleading . . . or [it] is waived”].)
As one court explained, “A trial judge presiding over a case initiated by an
incarcerated and self-represented plaintiff, particularly when there has been no
appearance by any defendant, faces a significant challenge in balancing his or her
obligations to facilitate the ability of the self-represented litigant to be fairly heard, on
the one hand, and to refrain from assuming the role of advocate, on the other.”
(Holloway v. Quetel (2015) 242 Cal.App.4th 1425, 1434.) By raising the statute of
limitations, the trial court was acting as an advocate, which it cannot do.
We conclude the trial court erred by raising the statute of limitations defense
because only Defendant may raise that issue. Because we conclude the trial court erred
by raising the statute of limitations, we do not address the secondary issue of whether
the trial court erred by disregarding the tolling allegations in the FAC.
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B. DEFAULT PROVE-UP HEARING
Plaintiff asserts the trial court improperly required him to prove the material
allegations of the FAC when the material allegations had already been “admitted by
Defendant (Def.) by default.”
“A defendant’s failure to answer the complaint has the same effect as admitting
the well-pleaded allegations of the complaint, and as to these admissions no further
proof of liability is required. [Citations.] Thus, in a default situation . . . if the
complaint properly states a cause of action, the only additional proof required for the
judgment is that needed to establish the amount of damages.” (Carlsen v. Koivumaki
(2014) 227 Cal.App.4th 879, 898.) “ ‘The “well-pleaded allegations” of a complaint
refer to “ ‘ “all material facts properly pleaded, but not contentions, deductions or
conclusions of fact or law.” ’ ” ’ ” (Ibid.) If the well-pleaded allegations in a complaint
fail to state a cause of action, then a default judgment cannot be entered. (Kim, supra,
201 Cal.App.4th at p. 282; Falahati v. Kondo (2005) 127 Cal.App.4th 823, 829.)
“In California, fraud must be pled specifically; general and conclusory
allegations do not suffice. [Citations.] ‘Thus, “ ‘the policy of liberal construction of the
pleadings . . . will not ordinarily be invoked to sustain a pleading defective in any
material respect.’ ” [Citation.] [¶] This particularity requirement necessitates pleading
facts which “show how, when, where, to whom, and by what means the representations
were tendered.” ’ ” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)
9
We examine whether Plaintiff sufficiently pled the material facts for his fraud
causes of action such that liability was established by Defendant’s default. Because this
review is similar to reviewing a ruling on a demurrer, we apply the de novo standard of
review. (Entezampour v. North Orange County Community College Dist. (2010) 190
Cal.App.4th 832, 837.)
“ ‘ “The elements of fraud, which give rise to the tort action for deceit, are
(a) misrepresentation (false representation, concealment, or nondisclosure);
(b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance;
(d) justifiable reliance; and (e) resulting damage.” ’ ” (Small v. Fritz Companies, Inc.
(2003) 30 Cal.4th 167, 173.)
“The law is quite clear that expressions of opinion are not generally treated as
representations of fact, and thus are not grounds for a misrepresentation cause of
action.” (Neu-Visions Sports, Inc. v. Soren/McAdam/Bartells (2000) 86 Cal.App.4th
303, 308.) However, there are exceptions to this rule. An opinion may be actionable
“where it is ‘expressed in a manner implying a factual basis which does not exist.’ ”
(Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 893 (Jolley).) An
opinion may also be actionable as a misrepresentation when (1) it is false and (2) “it is
made by a party who ‘possess[es] superior knowledge.’ ” (Id. at p. 892.)
In his FAC, Plaintiff alleged, “[Defendant] did not rely, or base an SBS [(shaken
baby syndrome)] diagnosis on the actual autopsy findings and diagnosis (i.e., ‘one
traumatic [blunt-force] episode’ to account for all 4-28-01 neurological damage).” We
will examine whether Plaintiff sufficiently alleged that Defendant’s opinion implied a
10
non-existent factual basis. Plaintiff attached to the FAC a partial reporter’s transcript
from the preliminary hearing for Plaintiff’s criminal case. Defendant testified at the
preliminary hearing and explained that “the [victim’s] most fatal injury and the injuries
that were very acute . . . [were] subdural hematoma, which is bleeding into the covering
layer . . . between the brain and the skull . . . and there was a lot of bleeding, extensive
bleeding. And the most acute was mostly on the right. It was to the back of the
head. . . . [¶] He had also extensive retinal hemorrhages . . . . They were very
extensive.” Defendant opined that the victim’s injuries were caused by “abusive head
trauma or what we commonly know as shaken baby syndrome.” Defendant explained
that such injuries could result if “a baby is shaken vigorously. It’s an acceleration-
deceleration, so it’s a forward and back movement (indicating) of the head that causes
the brain to go back and forth and causes a lot of intercranial bleeding, a lot of bleeding
in the head, causes bleeding in the eyes.”
Also attached to the FAC is a partial reporter’s transcript that is unidentified but
appears to be from Defendant’s criminal trial. The partial transcript includes some of
the testimony of Dr. Trenkle, who is a deputy medical examiner for the San Bernardino
County Coroner’s Office. Trenkle conducted the autopsy on the victim. Trenkle
testified that the victim suffered subdural hematomas. Trenkle agreed with a question
reflecting there was “extensive retinal hemorrhaging . . . in this case.” Trenkle testified
that in shaken baby syndrome “the baby’s head is moving back and forth, and it can—it
can lead to subdural hemorrhage.” Thus, Trenkle agreed the facts that underlie
Defendant’s opinion exist, i.e., the victim suffered subdural hematomas and retinal
11
hemorrhages, and that shaken baby syndrome involves a forward and backward
movement of a baby’s head, which can cause bleeding. Accordingly, Plaintiff’s FAC
fails to sufficiently allege that Defendant’s opinion, as presented at the preliminary
hearing, implied a factual basis that does not exist.
In regard to Defendant’s trial testimony, Plaintiff asserts that Defendant
incorrectly relied upon an intraparenchymal hemorrhage to support her shaken baby
syndrome diagnosis. Plaintiff cites to a consulting physician report that defendant
wrote. In the report, Defendant wrote, “There is air and hemorrhage along the shunt
tract and new intraparenchymal hemorrhage in the left frontal lobe.” At the end of the
report, Defendant opined that the victim’s death was caused by an intentionally inflicted
injury. However, in the report, Defendant does not explain why she believes the
victim’s injuries were intentionally inflicted. Thus, it is unclear why Plaintiff believes
the intraparenchymal hemorrhage is a basis for Defendant’s opinion.
Nevertheless, for the sake of addressing Plaintiff’s concern, we will assume the
intraparenchymal hemorrhage was the basis for Defendant’s opinion. Plaintiff asserts
the autopsy did not record a new intraparenchymal hemorrhage, which we presume is
Plaintiff’s way of asserting that the intraparenchymal hemorrhage did not exist.
Plaintiff’s assertion that the intraparenchymal hemorrhage did not exist is contradicted
by a radiology report that reads, “There is a left frontal intraparenchymal hemorrhage
just lateral to the frontal horn of the left ventricle, this appears new.” The radiology
report was written by Kevin Kroeger, M.D. and agreed with by Nathaniel Wycliffe,
12
M.D. Thus, it appears that Defendant’s opinion concerning the intraparenchymal
hemorrhage did not imply a factual basis that does not exist.
Next, Plaintiff asserts Defendant lied about the victim having suffered a fracture
of his right femur. The autopsy report’s “diagnosis” section provides, in part, “Inflicted
injury, right femur, remote,” and beneath that, as a subpoint, it reads, “Subperiosteal
new bone formation.” Thus, in the autopsy report, Trenkle wrote that the victim had
previously suffered an injury to his right femur. Accordingly, Plaintiff has not
sufficiently alleged that Defendant implied a fact that did not exist.
In sum, there is corroboration, in the materials Plaintiff attached to the FAC, for
the facts that Defendant relied upon in reaching her opinion. Thus, Plaintiff did not
sufficiently allege that Defendant implied a factual basis that does not exist when giving
her opinion.
In regard to Defendant’s opinion being false, Plaintiff alleged that Defendant
made an “incompetent neurological diagnosis” by concluding that shaken baby
syndrome caused the victim’s fatal brain injury. Defendant believed a blunt force
impact would have fractured the victim’s skull but that shaking likely caused the
victim’s brain injury. Trenkle believed the victim’s brain injury could have resulted
from a single blunt force impact that was so severe it fractured the victim’s skull and
injured the victim’s brain. Nevertheless, Trenkle testified that it was possible the victim
was shaken in addition to the blunt force impact. Because Trenkle agreed the victim
may have been shaken, Defendant’s belief that the victim may have been shaken was
not necessarily false or wrong. Because the allegations do not show that Defendant’s
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opinion was false, the fraud/misrepresentation cause of action does not fall within the
exception for a false opinion that is expressed by a person with superior knowledge.
(Jolley, supra, 213 Cal.App.4th at p. 892.)
Plaintiff concluded in the FAC that Defendant’s opinion was fraudulent because
it contradicted the autopsy findings. However, as explained ante, legal conclusions are
not sufficient for a default judgment. When looking at the well-pleaded allegations of a
complaint, we examine the material facts that are alleged. (Kim, supra, 201
Cal.App.4th at p. 282.) The exhibits attached to the FAC reflect that Trenkle, who
conducted the autopsy, testified that it was possible the victim was shaken. In other
words, the material facts set forth in the FAC reflect Plaintiff is suing Defendant for
expressing her opinion, and Plaintiff failed to allege facts reflecting that Defendant’s
opinion is false or based on non-existent facts.
For the sake of thoroughness, we look at Plaintiff’s allegations related to the
element of justifiable reliance. “In a fraud case, justifiable reliance is the same as
causation.” (Hall v. Time Inc. (2008) 158 Cal.App.4th 847, 855, fn. 2.) In the trial
transcript attached to the FAC, Trenkle opined that the victim’s injuries were caused by
an intentional blunt force impact. Trenkle explained that falling onto a carpeted step
from a height of 18 to 24 inches would not have caused the victim’s injuries. Rather,
for the victim’s skull to fracture due to a fall, the victim would have had to fall from “a
height greater than 10 to 20 feet.” Trenkle explained that fatal injuries from a fall occur,
for example, when a person falls out a window from the third floor of a building or
higher.
14
The jury could have relied upon Trenkle’s testimony to convict Plaintiff in the
criminal trial. Trenkle opined that the victim’s injuries were likely caused by one
severe and intentional blunt force impact. Therefore, if Defendant had never testified
about her opinion that the victim was shaken, then the jury still would have had
evidence by which it could have found the victim’s injuries were intentionally inflicted.
Because it is not clear from Plaintiff’s allegations if the jury relied upon Defendant’s
opinion, as opposed to Trenkle’s opinion, when convicting Plaintiff,
causation/justifiable reliance was not well pled.
In sum, in regard to fraud/misrepresentation, the facts alleged in the FAC and its
attached exhibits indicate that Defendant’s opinion regarding the victim being shaken
(1) relied upon existing facts; (2) was not false because Trenkle agreed it was possible
that the victim was shaken; and (3) may not have been the basis for the jury’s guilty
verdict because the jury could have relied on Trenkle’s opinion in finding Plaintiff
guilty. Accordingly, we conclude Plaintiff did not adequately plead
fraud/misrepresentation.
In regard to fraud/concealment, Plaintiff alleged, “Post-autopsy, [Defendant]
intentionally concealed autopsy material facts, and incompetence, to intentionally
(represent pre-autopsy x-ray impressions, or) misrepresent as ‘found at the autopsy’
[citation], an old ‘thin cortical fracture in the length of the [right] femur.’ Diagnosing
the cause as ‘abuse’ [citation]—or ‘on-going abuse’ as a substantiating ‘factor’
D.A.I./S.B.S. [(diffuse axial injury/shaken baby syndrome)] is cause of neurological
damage (and death) on 4-28-01.”
15
In the foregoing allegation, Plaintiff alleges that Defendant concealed facts.
However, Plaintiff fails to allege how the facts were concealed; when they were
concealed, other than post-autopsy; from whom they were concealed; and where the
concealing occurred. To the extent Plaintiff is asserting that Defendant concealed facts
at the preliminary hearing, it is unclear in what manner she did that because the
transcript reflects that Defendant answered questions on cross-examination. Thus, there
is no indication that Defendant concealed information during the preliminary hearing by
refusing to answer questions.
When pleading a fraud cause of action, a plaintiff must allege facts indicating
“ ‘how, when, where, to whom, and by what means’ ” the fraud occurred. (Lazar v.
Superior Court, supra, 12 Cal.4th at p. 645.) In the FAC it is unclear how, when,
where, to whom, and by what means Defendant allegedly concealed information.
Accordingly, we conclude Plaintiff failed to plead sufficient facts for a
fraud/concealment cause of action.
The intentional infliction of emotional distress cause of action was dependent on
the fraud causes of action in that Plaintiff alleged the fraud resulted in his emotional
distress. One of the elements of an intentional infliction of emotional distress cause of
action is “extreme and outrageous conduct by the defendant.” (Crouch v. Trinity
Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007.) “Ordinarily, a
medical diagnosis and treatment advice will not be considered outrageous unless they
are false and given in bad faith.” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534.)
Defendant opined that the victim was shaken. Trenkle agreed that the victim may have
16
been shaken. Given that Trenkle agreed the victim may have been shaken, Plaintiff did
not sufficiently allege that Defendant’s opinion was false and given in bad faith. The
conclusions pled by Plaintiff, e.g., the conclusion that Defendant’s opinion was false,
are not sufficient for a default judgment. Plaintiff has to plead facts. The FAC fails to
set forth facts reflecting Defendant’s opinion is false, particularly given the fact that
Trenkle testified the victim may have been shaken.
In sum, Plaintiff did not sufficiently allege his fraud and intentional infliction of
emotional distress causes of action. Because the causes of action were inadequately
pled, the trial court could not enter a default judgment. (Kim, supra, 201 Cal.App.4th at
p. 282.) Therefore, we conclude the trial court did not err by denying Plaintiff’s request
for a default judgment. Moreover, because the causes of action were inadequately pled,
the trial court’s error related to the statute of limitations is harmless in that the request
for a default judgment still would have been denied absent the statute of limitations
error. (See Code Civ. Proc., § 475 [error is harmless unless a “different result would
have been probable”].)
C. DISMISSAL
Plaintiff contends the default prove-up hearing was effectively a hearing on an
OSC re: dismissal without prior notice.
“ ‘ “An elementary and fundamental requirement of due process in any
proceeding which is to be accorded finality is notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford
17
them an opportunity to present their objections.” ’ ” (Edward W. v. Lamkins (2002) 99
Cal.App.4th 516, 529.)
When Defendant’s default was entered, Plaintiff had 45 days to obtain a default
judgment or to obtain an extension of that deadline. (Cal. Rules of Court, rule
3.110(h).) When the trial court denied Plaintiff’s request for a default judgment, it
could have set an order to show cause why the sanction of dismissal should not be
imposed for Plaintiff’s failure to obtain entry of judgment. (Cal. Rules of Court, rule
3.110(h).) Generally, sanctions cannot be imposed without providing notice and an
opportunity to be heard. (Reid v. Balter (1993) 14 Cal.App.4th 1186, 1193.)
In the instant case, the trial court dismissed Plaintiff’s case at the default prove-
up hearing. There is no indication in the record that Plaintiff was given notice that the
case might be dismissed at the default prove-up hearing. When the trial court set the
default prove-up hearing it indicated the hearing would be focused on Plaintiff’s default
judgment packet. Given the lack of notice that the trial court would be considering
dismissal of Plaintiff’s case, we conclude the judgment of dismissal is void due to a lack
of notice and must be reversed. (Lovato v. Santa Fe Internat. Corp. (1984) 151
Cal.App.3d 549, 554; Sole Energy Co. v. Hodges (2005) 128 Cal.App.4th 199, 210;
Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1286.)
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DISPOSITION
The order denying Plaintiff’s request for entry of a default judgment is affirmed.
The judgment dismissing the case is reversed. Plaintiff to bear his own costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(3).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER Acting P. J.
We concur:
CODRINGTON J.
FIELDS J.
19
AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court erred by sua sponte raising the statute of limitations, which is a personal privilege that must be affirmatively invoked by the defendant. However, the court affirmed the denial of the default judgment because the plaintiff failed to sufficiently plead the material facts necessary to state causes of action for fraud and intentional infliction of emotional distress.
Issues
Did the trial court err by sua sponte raising the statute of limitations defense?
Did the trial court err by requiring the plaintiff to establish liability in a default prove-up hearing?
Did the plaintiff sufficiently plead the material facts for his fraud and intentional infliction of emotional distress causes of action?
Disposition. Affirmed in part; reversed in part.
Quotations verified verbatim against the opinion
“It was not the trial court’s role to raise a statute of limitations defense on behalf of Defendant.”
“By raising the statute of limitations, the trial court was acting as an advocate, which it cannot do.”
“If the well-pleaded allegations in a complaint fail to state a cause of action, then a default judgment cannot be entered.”