Briggs v. Select Portfolio Servicing CA4/2 (2021) · DecisionDepot
Briggs v. Select Portfolio Servicing CA4/2
California Court of Appeal Jun 8, 2021 No. E074699Unpublished
Filed 6/8/21 Briggs v. Select Portfolio Servicing 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
CHAYO BRIGGS,
Plaintiff and Appellant, E074699
v. (Super.Ct.No. CIVDS1921322)
SELECT PORTFOLIO SERVICING, INC., OPINION
Defendant and Respondent.
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
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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.
1 All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
2
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 was
2 Briggs does not argue his complaint pleaded sufficient facts to survive Select’s demurrer, and he only challenges the court’s alleged failure to grant him additional time to file an opposition to the demurrer. Therefore, we need not set forth the facts alleged in his complaint. Moreover, because the superior court dismissed the action when Briggs failed to amend his complaint after the court sustained Select’s demurrer with leave to amend, we must assume the complaint contained the strongest statement of Briggs’ causes of action. (Lyles v. Sangadeo-Patel (2014) 225 Cal.App.4th 759, 764.) Nor does Briggs contend he would have been able to file an amended complaint and plead a viable cause of action that would have survived another demurrer.
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supposedly 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.)
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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)
[“[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 than
3 “[U]nless otherwise ordered, leave to . . . amend within 10 days is deemed granted, except for actions in forcible entry, forcible detainer, or unlawful detainer in which case 5 calendar days is deemed granted.” (Cal. Rules of Court, rule 3.1320(g).)
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December 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
until the prevailing party sends out a formal Notice of Ruling (unless waived). Thus, if
the prevailing party forgets or delays sending out the requisite notice, it operates as an
automatic extension of time to the other side.” (Weil & Brown, Cal. Practice Guide:
Civil Procedure Before Trial (The Rutter Group 2020) ¶ 7:135, p. 7(I)-62, italics added.)
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Thirty days from December 10, 2019—the date Select served Briggs with notice
of the order sustaining the demurrer—fell on Thursday, January 9, 2020. And, because
Select served the notice by express mail, Briggs had two additional court days, or until
Monday, January 13, 2020, to file his amended complaint. (§ 1013.) Consequently,
because “the time allowed by the court” for Briggs to file an amended complaint had not
yet expired on January 8 (§ 581, subd. (f)(2)), the trial court clearly erred by dismissing
the lawsuit on that date.
B. Briggs Has Not Shown He Was Prejudiced.
In the context of default judgments, the courts have long held that a prematurely
entered default and default judgment are null and void. (Whealton v. Whealton (1967)
67 Cal.2d 656, 659 [default and default judgment were entered before time for the
defendant to answer had lapsed and were “therefore void”]; Schwab v. Southern
California Gas Co. (2004) 114 Cal.App.4th 1308, 1320 [“A prematurely entered default
is invalid, and any judgment entered after an invalid default is also invalid.”],
disapproved on another ground by Sass v. Cohen (2020) 10 Cal.5th 861, 887, fn. 12;
(People v. American Surety Co., supra, 31 Cal.App.5th at p. 400.)
“Ordinarily, acts in excess of jurisdiction are subject to harmless error analysis,
that is, they support a reversal of the judgment only upon a showing of prejudice.”5
(LAOSD Asbestos Cases (2018) 28 Cal.App.5th 862, 871.) “We typically apply a
harmless-error analysis when a statutory mandate is disobeyed, except in a narrow
category of circumstances when we deem the error reversible per se. This practice
derives from article VI, section 13 of the California Constitution, which provides: ‘No
judgment shall be set aside, or new trial granted, in any cause . . . for any error as to any
4 As Select asserts, Briggs did not appear at the ex parte hearing and oppose the motion to dismiss, and he did not move to set aside the judgment of dismissal once it was entered. To the extent Select argues the doctrine of forfeiture should apply to prevent this court from reaching the clear error that is apparent on the face of the record, we are not persuaded. “In general, forfeiture of a claim not raised in the trial court by a party has not precluded review of the claim by an appellate court in the exercise of that court’s discretion. [Citations.] Thus, an appellate court may review a forfeited claim—and ‘[w]hether or not it should do so is entrusted to its discretion.’” (In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7.) We recognize that Briggs, who represents himself, is entitled to the same but no greater consideration as other parties and attorneys. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247; Stover v. Bruntz (2017) 12 Cal.App.5th 19, 31.) But, considering the trial court and Select’s attorneys were under the misapprehension that Briggs only had until December 6, 2019, to file his amended complaint, it would be patently unfair to hold Briggs to a higher standard and penalize him for not recognizing that Select’s dismissal request was premature and for not opposing the request and/or moving to set it aside on that basis.
5 Although in its supplemental brief Select argued in the alternative that, if the dismissal was premature, the error was merely voidable and valid until set aside, Select did not expressly address whether the error was subject to harmless error analysis and did not argue Briggs cannot establish prejudice. We afforded Select the opportunity to address the issue of prejudice during oral argument.
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matter of procedure, unless, after an examination of the entire cause, including the
evidence, the court shall be of the opinion that the error complained of has resulted in a
miscarriage of justice.’” (In re Jesusa V. (2004) 32 Cal.4th 588, 624; see Code Civ.
Proc., § 475.)
“The phrase ‘miscarriage of justice’ has a settled meaning in our law, having been
explained in the seminal case of People v. Watson (1956) 46 Cal.2d 818 . . . . Thus, ‘a
“miscarriage of justice” should be declared only when the court, “after an examination of
the entire cause, including the evidence,” is of the “opinion” that it is reasonably probable
that a result more favorable to the appealing party would have been reached in the
absence of the error.’ (Id. at p. 836.) ‘We have made clear that a “probability” in this
context does not mean more likely than not, but merely a reasonable chance, more than
an abstract possibility.’ (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704,
Examining the record, we conclude Briggs was not prejudiced by the trial court’s
premature dismissal of his complaint. As already noted, Briggs does not argue on appeal
that he could have filed an amended complaint that states viable causes of action and
would survive another demurrer had the trial court not prematurely dismissed his lawsuit.
(See, ante, fn. 2.) Therefore, we must conclude the trial court’s error was harmless and
affirm the judgment.
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III.
DISPOSITION
The judgment of dismissal is affirmed. In the interests of justice, the parties shall
bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J. We concur:
MILLER J.
MENETREZ J.
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AI Brief
AI-generated · verify before citing
Holding. The trial court erred by dismissing the action before the statutory time for the plaintiff to file an amended complaint had expired, but the error was harmless because the plaintiff failed to demonstrate he could have pleaded a viable cause of action.
Issues
Whether the trial court erred by dismissing the lawsuit before the time to file an amended complaint had lapsed under Code of Civil Procedure section 472b.
Whether a premature dismissal under Code of Civil Procedure section 581, subdivision (f)(2) is reversible error absent a showing of prejudice.
Disposition. affirmed
Quotations verified verbatim against the opinion
“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.”
“Because Briggs has not argued he could have amended his complaint to state a viable cause of action, we conclude the error was harmless.”