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Geoffrey E. Woo-Ming v. Douglas De Salles

August 24, 2011

GEOFFREY E. WOO-MING, PLAINTIFF AND APPELLANT,
v.
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

CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

PROCEDURAL BACKGROUND

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 ...


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