Wilber v. Manzer CA2/6

Filed 1/3/23 Wilber v. Manzer CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

RON WILBER, 2d Civil No. B315149 (Super. Ct. No. 56-2020- Plaintiff and Appellant, 00544758-CU-PO-VTA) (Ventura County) v.

DAN MANZER et al.,

Defendants and Respondents.

Ron Wilber appeals in propria persona from a judgment dismissing his first amended complaint with prejudice. Appellant submitted an opening brief but not a reply brief. Because his opening brief completely fails to comply with the rules of appellate procedure, we affirm. Factual and Procedural Background In his opening brief appellant states, “This is a commercial/industrial, tenant v. landlord case . . . .” Appellant was the tenant and respondents were the landlord. The lease describes the premises as “[a]n approximate 1,375 square foot

industrial unit which is part of a larger multi-tenant industrial building.” In November 2020 appellant filed a first amended complaint against respondents. It consists of eight causes of action: fraud, assault, negligence, intentional/negligent infliction of emotional distress, elder abuse, unlawful attempt to evict, defamation, and pursuing eviction proceedings during California’s Covid-related eviction moratorium. Respondents filed an anti-SLAPP motion to strike all eight causes of action. (Code Civ. Proc., § 425.16.)1 The trial court granted the motion as to some of appellant’s claims. As to the remaining claims, the court granted respondents’ motion for judgment on the pleadings with leave to amend. But appellant never filed an amended pleading. Respondents moved to dismiss the action pursuant to section 581, subdivision (f)(2), which provides, “The court may dismiss the complaint . . . when . . . 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.” Respondents’ motion for judgment on the pleadings was “equivalent to a demurrer.” (Kapsimallis v. Allstate Ins. Co. (2002) 104 Cal.App.4th 667, 672.) The court dismissed the action with prejudice. Rules of Appellate Procedure “‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. . . .’” (Denham v. Superior Court