IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
August 24, 2011
GEOFFREY E. WOO-MING, PLAINTIFF AND APPELLANT,
DOUGLAS DE SALLES, DEFENDANT AND RESPONDENT.
(Super. Ct. No. 34-2009-00056608-CU-BT-GDS)
The opinion of the court was delivered by: Butz , J.
Woo-Ming v. De Salles
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Plaintiff Geoffrey E. Woo-Ming appeals in propria persona from the denial of his motion for relief from an order dismissing his second amended complaint (also filed in propria persona). (Code Civ. Proc., § 473, subd. (b) (hereafter section 473(b)); 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 200, p. 276.) We shall affirm the order.
The substance of Woo-Ming's second amended complaint is irrelevant to this appeal. It alleged in essence that defendant Douglas De Salles had committed negligent interference with Woo-Ming's prospective economic advantage, opening a competing clinic for erectile dysfunction under the name "Doctor's Clinic for Men" in April 2009 without first obtaining a fictitious name permit from the Medical Board of California. (Bus. & Prof. Code, §§ 2001, 2002, 2285, 2415.) Woo-Ming took advantage of this misstep, obtaining a permit to use that name in August 2009 (though he continued to operate his practice under the name of "Sacramento Virility Clinic"). He then sought to prevent De Salles from using the "Doctor's Clinic for Men" name in any advertising. In October 2009, De Salles obtained a permit for the name "Sacramento Doctor's Clinic for Men." Woo-Ming's second amended complaint alleged "a permanent income loss . . . for [five] months" from De Salle's advertising.
In January 2010, De Salles noticed a demurrer for April 15, 2010. Woo-Ming apparently then filed a motion for summary judgment. The trial court denied the motion for summary judgment on April 6, 2010. On April 15, a different department sustained De Salles's demurrer. The order stated, "The Court construes plaintiff's lack of opposition to the demurrer as a concession of not only the merits of the demurrer itself but also plaintiff's inability to cure the defects in the [second amended complaint]. Accordingly, the demurrer is sustained without leave to amend."
Woo-Ming sent an ex parte communication to the court claiming that he "erroneously" believed the court had dropped the demurrer from its April 15 calendar, apparently attaching his opposition and a proposed amendment. The court rejected the attempted filing because it did not include a proof of service on De Salles.
Woo-Ming thereafter served and filed copies of his opposition to the demurrer, along with a letter in which he claimed that on April 5, 2010, he had misread the tentative ruling on his motion for summary judgment as including the tentative ruling for the following item on the calendar, in which a demurrer was dropped as moot after the plaintiffs filed a first amended complaint in response to a demurrer.*fn1 "To show how fooled [he] was," Woo-Ming also attached copies of a letter conveying a $30,000 settlement demand he made on April 6 after argument on the motion for summary judgment, and special interrogatories that he sent to De Salles on April 13.
The trial court entered its judgment of dismissal on April 26, 2010. On May 17, Woo-Ming filed a motion for relief from the dismissal under section 473(b) on the ground of mistake. He attached his previously filed explanatory letter to the court, with copies of his opposition to the demurrer and the April 5 list of tentative rulings.
A third department ruled on Woo-Ming's motion for relief on June 10, 2010. Its order stated, "Plaintiff's alleged mistake is neither reasonable nor credible. Importantly, [the] demurrer was set to be heard on April 15, 2010, not on April 6, 2010, the day of his summary judgment motion." The order further explained, "his opposition to the demurrer was due on April 2,[*fn2 ] [and] the tentative ruling on his motion for summary judgment was not posted until April 5, 2010. . . . [T]he tentative ruling which he would have this Court believe he thought applied to his case referred to multiple defendants [and] plaintiffs and the filing of a first amended complaint" after a demurrer, rather than a demurrer to a second amended complaint. The trial court therefore concluded Woo-Ming had failed to establish that his "error" was the result of excusable mistake, inadvertence, surprise, or neglect. This appeal followed on July 13, 2010, just within 90 days of his motion for relief. (Cal. Rules of Court, rule 8.108(c)(2).)
At the outset, we note that Woo-Ming's references to his lay status do not have any effect on our review of this matter.*fn3 (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) The sole consequence is that he can invoke only the discretionary provisions of section 473(b), not the mandatory provisions for parties represented by counsel. (Esther B. v. City of Los Angeles (2008) 158 Cal.App.4th 1093, 1099-1100.)
On appeal, the plaintiff must establish that the trial court abused its discretion in finding that his failure to file timely opposition was not based on a mistake that a reasonably prudent person would make (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257-258); in other words, he must convince us that any reasonable judge would have ruled in his favor, not that there could be a rational difference of opinion on the facts. This is a "daunting task," characterized as an "uphill battle" that is generally "'dead on arrival'" in the appellate court. (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1448-1449.) Moreover, to the extent the trial court did not find his claim of mistake to be genuine, it is a credibility resolution that is binding on this court. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 479.)
Woo-Ming's brief does nothing more than ask us to chose a different reading of the facts. He contends that his settlement demand, promulgation of interrogatories, and immediate request to file ready opposition indicate a genuine misinterpretation of the list of tentative rulings for the April 6 law and motion calendar. He also argues that the substance of his opposition (which we do not need to address) demonstrates well-founded confidence that he would prevail and therefore would not intentionally have failed to file it. He claims there could not be any logical reason for disregarding the deadline, and it is far-fetched that he only then looked through the court file to manufacture an excuse. He also argues the trial court abused its discretion in sustaining the demurrer to the second amended complaint without leave to amend.
Taking the latter point first, he did not file a timely appeal from the order sustaining the demurrer without leave to amend. It is consequently final, and its merits are outside the scope of this appeal, which is limited to his grounds for setting aside the dismissal, whatever the merits of the ruling.
We also do not have any obligation to determine the actual basis for Woo-Ming's dereliction. He must stand or fall on the reason that he provided.
While Woo-Ming attempts to corroborate the sincerity of his explanation for failing to oppose the demurrer, the trial court's disbelief that this was the actual reason is not an unreasonable exercise of its power to judge credibility, given that the nature of Woo-Ming's purported misinterpretation strains credulity. As a result, we have no basis to annul the trial court's conclusion that it was not a genuine explanation.
But even without questioning Woo-Ming's credibility, we find that the trial court gave rational bases for concluding that any reasonable person would not have mistaken the tentative ruling in "Item 8" for a ruling in the present case. This required Woo-Ming to seize on the phrase "demurrer is dropped" and ignore a dividing line; a different item number, case title, case number, and moving party; a reference to plural defendants and plaintiffs; and an inapposite basis (mootness) and action in response to the demurrer (filing a first amended complaint). Woo-Ming has consequently failed to demonstrate an abuse of discretion. That his inexcusable failure to file opposition results in the loss of what he perceives as a meritorious cause of action does not amount to any "miscarriage" of justice that trumps his failure to establish an adequate cause for relief (as he asserts in passing in his reply brief without any supporting authority).
Although De Salles's brief describes this action as frivolous, he does not expressly request sanctions for a frivolous appeal. In the absence of any request, we will not consider sanctions sua sponte.
The order denying relief from dismissal is affirmed. De Salles shall recover his costs of appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
We concur: RAYE , P. J. HOCH , J.