Filed 7/30/20 McKelvy v. Tangen CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

MIKE MCKELVY,

Plaintiff and Appellant,

v.

TOM TANGEN,

Defendant and Respondent.

B296135

(Los Angeles County

Super. Ct. No. BC605557)

APPEAL from a judgment of the Superior Court of Los Angeles County, Monica Bachner, Judge. Affirmed.

Mike McKelvy, in pro. per, for Plaintiff and Appellant.

David S. Miller, LibertyBell Law Group, for Defendant and Respondent.

* * * * * *

Plaintiff Mike McKelvy (plaintiff) argues that the trial court erred in dismissing his action pursuant to Code of Civil Procedure section 581, subdivision (f)(2). Because plaintiff has not established that the trial court’s order was an abuse of discretion, we affirm.

FACTS AND PROCEDURAL BACKGROUND

In a form complaint filed in March 2015, plaintiff alleged he loaned defendant Tom Tangen (Tangen) “letters and movie memorabilia” pertaining to Mary Philbin, the actress who played the lead in the silent movie version of The Phantom of the Opera. Rather than use those items as the basis for a book or film documentary on Philbin’s life, plaintiff alleged, Tangen tried to sell them at a memorabilia show.

After Tangen’s motion for judgment on the pleadings as to the form complaint was granted, plaintiff filed an “Amended Complaint” that largely repeated the allegations in his prior form complaint. The Amended Complaint alleged claims for (1) “general negligence,” (2) “intentional tort” and (3) “fraud.”

Tangen filed a demurrer. Plaintiff did not oppose the demurrer, and the trial court sustained it because the Amended Complaint’s allegations were insufficient. The court dismissed plaintiff’s general negligence and fraud claims without leave to amend. However, because plaintiff appeared at the hearing on the demurrer and “presented facts that appeared to set forth a cause of action for conversion,” the court granted him leave to amend the “intentional tort” claim. The amended pleading was to be filed “within twenty days.”

Exactly 20 days after the court issued its order, plaintiff filed a document entitled “Answer To Ruling On Demurrer To The First Amended Complaint” (Answer to Ruling). The document was not captioned as a complaint, contained no factual allegations, and set forth no prayer for relief. Instead, it stated that “[c]onversion is considered the civil side of larceny” and set forth “[t]he elements of conversion” and the “three ways” “[a] conversion is usually proved.”

Tangen filed a motion to dismiss the complaint under section 581, subdivision (f)(2) on the ground that plaintiff did not file an amended complaint as ordered by the trial court because the document he filed was “not a [c]omplaint.” Plaintiff filed an opposition, alleging that Tangen and his lawyer were “absolutely low class” but offering no explanation why the Answer to Ruling qualified as a complaint or why section 581, subdivision (f)(2) did not apply. After Tangen filed a reply, and the court held a hearing, the trial court dismissed Tangen’s complaint because plaintiff did not comply with the court’s order allowing him to file an amended complaint because the Answer to Ruling filed “lack[ed] all the formalities of a pleading: it does not have a caption, it fails to set forth a cause of action for conversion, and it lacks a prayer for relief.”

Plaintiff filed this timely appeal.

DISCUSSION

A trial court may dismiss a complaint with prejudice if it sustained a demurrer with leave to amend, the plaintiff does not file an amended complaint within the allotted time, and the defendant moves to dismiss. (§ 581, subd. (f)(2); Cano v. Glover (2006) 143 Cal.App.4th 326, 329-330.) We review such a dismissal for an abuse of discretion. (Gitmed v. General Motors Corp. (1994) 26 Cal.App.4th 824, 827 (Gitmed).)

There was no abuse of discretion in this case. Of the three prerequisites for dismissal under section 581, subdivision (f)(2), only one is disputed on appeal—namely, whether plaintiff filed an amended complaint within the allotted time. We conclude that he did not because the Answer to Ruling he filed does not qualify as a complaint. At a minimum, a complaint must “‘set forth the actionable facts relied upon with sufficient precision to inform the defendant of what [the] plaintiff is complaining, and what remedies are being sought.’ [Citation.]” (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413; Prue v. Brady Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1376 [“a complaint must set forth the essential facts of the plaintiff’s case with reasonable precision and with particularity sufficient to acquaint the defendant with the nature, source, and extent of the plaintiff’s claim.”].) The Answer to Ruling does not meet these minimum requirements: It alleges no facts whatsoever, and sets forth no prayer for relief. Nor are we at liberty to ignore these fundamental defects just because plaintiff is a self-represented litigant. (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543 [“Pro. per. litigants are held to the same standards as attorneys.”]; Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284 [self-represented litigants “are not entitled to special exemptions from the California Rules of Court or [the] Code of Civil Procedure.”].)

Plaintiff’s sole argument on appeal is that the trial court never gave him the opportunity to be heard and to present his evidence because his case was “dropped before being brought to trial.” He does not address the basis for the trial court’s dismissal or offer any explanation why that basis was wrong. Plaintiff has therefore not carried his burden of establishing that the trial court abused its discretion (Gitmed, supra, 26 Cal.App.4th at p. 827), and we must accordingly affirm.

DISPOSITION

The judgment is affirmed. Tangen is entitled to his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, P.J.

LUI

_________________________, J.

CHAVEZ

Parties and Attorneys
McKelvy v. Tangen
Division 2
Case Number B296135
Party Attorney

Mike McKelvy : Plaintiff and Appellant
4612 Franklin Ave
Los Angeles, CA 90027 Pro Per

Tom Tangen : Defendant and Respondent
David Scott Miller
LibertyBell Law Group
20350 Ventura Blvd.
Suite 230
Woodland Hills, CA 91364