Filed 5/11/20 Smith v. Peacock CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION FIVE
MARK SMITH,
Plaintiff and Appellant,
v.
TONYA PEACOCK, et al.,
Defendants and Respondents.
A157088
(Alameda County
Super. Ct. No. RG17882950)
Mark Smith appeals from a judgment of dismissal entered after the trial court sustained respondents’ demurrer to his second amended complaint without leave to amend. He contends the court erred by failing to enter the default of respondents and in concluding that he had not opposed the demurrer and failed to state a cause of action. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
A. Prior Lawsuit Against Smith
In December 2013, the Alameda County District Attorney filed a complaint against Smith for civil penalties, an injunction, and other equitable relief, asserting that he violated Business and Professions Code sections 17200 et seq. and 17500 et seq. and attempted to obtain money through false representations (citing Pen. Code, §§ 664/487). According to the complaint, Smith made untrue and misleading statements to business owners – including misrepresenting himself to be the owner of their expired fictitious business names – and then charged the business owners a fee to “renew” the names. It was further alleged that Smith executed, filed and published fictitious business name statements knowing they were false.
After a trial in October 2014, the court entered judgment against Smith, finding that he violated Business and Professions Code sections 17200 et seq. and 17500 et seq. as alleged in the complaint. The court permanently enjoined Smith from filing, selling, offering to sell, transferring, or offering to transfer any fictitious business name without prior approval by Judge Roesch (or any successor to his judicial assignment) and ordered Smith to pay restitution and civil penalties.
Smith filed an appeal, which was dismissed after he failed to file an opening brief.
B. This Proceeding Filed By Smith
On November 17, 2017, Smith filed a pro se complaint against respondents Tonya Peacock (Peacock), Inter-City Express (Inter-City), and the Daily Journal Corporation (Daily Journal) on a judicial council form for breach of contract and violation of statutes. He sought $10,000,000 in damages but did not allege any facts.
In February 2018, respondents filed a demurrer to the complaint; the court sustained the demurrer with leave to amend.
In May 2018, Smith filed two pro se complaints – referred to collectively as the first amended complaint – against Inter-City and Daily Journal for breach of contract and intentional interference with economic relationship. Smith alleged that he “hired the Inter-City Express subsidiary of the Daily Journal Corporation to publish hundreds of fictitious business names,” Inter-City employee Peacock sent him notice that Inter-City would not publish the fictitious business names “without reason,” and he lost over $100,000 for not being able to resell the fictitious business names and millions of dollars for not being able to use those names. Peacock was not named as a defendant.
In June 2018, Inter-City and Daily Journal filed a demurrer to the first amended complaint, contending that no cause of action was stated as a matter of law.
On August 20, 2018 – after the demurrer was filed but before it was heard – Smith filed a Request for Entry of Default against Peacock, as well as Inter-City and Daily Journal. The court clerk refused to enter the default because Inter-City and Daily Journal had filed a demurrer and there was no proof of service for Peacock. The court followed up with an order denying Smith’s request because “Tonya Peacock is not a named defendant in the first amended complaint” and “Defendant Inter-City Express and Daily Journal Corporation have filed a demurrer.”
In September 2018, the court sustained the demurrer to the first amended complaint with leave to amend, explaining that Smith still had not complied with the “basic pleading requirements” set forth in Code of Civil Procedure section 425.10 and California Rule of Court 2.112, and Smith’s “inexplicable decision to provide the Court with boilerplate citations to certain court decisions does not help his cause.” The court admonished: “[Smith] is hereby advised that he has just one more chance to comply with his obligations under CCP § 425.10 and Rule of Court 2.112 to plead sufficient facts to support one or more claims against Defendants [Inter-City and Daily Journal]. The Court is very unlikely to give [Smith] another opportunity to amend if it rules in Defendants’ favor on the Demurrer to the Second Amended Complaint.”
On October 1, 2018, Smith filed a pro se second amended complaint against Inter-City, Daily Journal, and Peacock (even though the court had not granted leave to add her as a defendant). The second amended complaint purported to assert causes of action for breach of contract and violation of Business and Professions Code sections 17200 and 17500. It also purported to assert new causes of action for “Violations of Business and Professions Civil Code Section § 1550 (legal contract)” and “Infringement of Trade Name.” Like the first amended complaint, the second amended complaint alleged that Peacock sent notice that Inter-City would not publish the fictitious business names Smith submitted, he lost $100,000 for not being able to resell the fictitious business names, and he lost profits (this time alleged to be $12 million) for not being able to “use his Fictitious Business Names that were stolen by the Inter-City Express.” It did not allege when these events occurred. Nor did it allege that the subject fictitious business name statements were outside the scope of the court’s October 2014 judgment and injunction.
On November 2, 2018, all respondents filed a demurrer to the second amended complaint, arguing that the pleading was barred by collateral estoppel because it was based on the same legal and factual issues litigated against Smith in the prior lawsuit, the second amended complaint did not state facts sufficient to constitute a cause of action, and the pleading was uncertain. They also noted that the second amended complaint against Peacock exceeded the scope of the court’s order granting leave to amend. The hearing on the demurrer was set for February 21, 2019.
On the same day that respondents filed their demurrer to the second amended complaint, Smith filed a Request for Entry of Default against Inter-City and Daily Journal. The court refused to enter the default because “[a] demurrer has been filed.”
On November 5, 2018, Smith filed a request for entry of default and default judgment against Peacock for $2,000,435, along with a proposed judgment against her for $2,800,435. The court clerk refused to enter the default because of the pendency of the demurrer. The court issued an order to the same effect.
On February 20, 2019 – one day before the scheduled hearing – Smith filed an opposition to the demurrer. The opposition claimed his pleading was sufficient, without explaining what allegations set forth the elements of any viable cause of action, and claimed “the court should grant leave to amend” without stating what new facts could be alleged or why it would make any difference.
On February 21, 2019, the court sustained the “unopposed” demurrer to the second amended complaint without leave to amend and dismissed the
second amended complaint with prejudice.
This appeal followed.
II. DISCUSSION
A. Smith Fails to Establish Error as to Failure to Enter Default
Smith’s opening brief on appeal argues that he filed a request for entry of Peacock’s default on the first amended complaint in August 2018. According to Smith, Peacock was served on January 16, 2018 by service upon her secretary at her place of employment. He asserts that the court clerk did not enter her default because the proof of service was not “entered.”
Smith’s argument is unavailing. First, although he claims the clerk erred, he does not explain why there was error or provide legal authority to support his position. Accordingly, the issue is waived. (Caldera v. Department of Corrections and Rehabilitation (2018) 25 Cal.App.5th 31, 46-47 (Caldera).) Second, whether the clerk erred in declining to enter a default on the first amended complaint is irrelevant, since the judgment of dismissal was based on the second amended complaint. Third, Smith acknowledges that no proof of service was filed, so the clerk was correct in not entering the default. (Code Civ. Proc., § 585, subd. (a).) Fourth, the page in the record he cites to show that Peacock was served pertained to service of the original complaint, not the first amended complaint. Fifth, Peacock was not even named as a defendant in the first amended complaint, so no default could be entered against her anyway.
Smith also asserts that on November 2, 2018, he filed a request for entry of default on the second amended complaint as to Inter-City and Daily Journal. He does not explain why the clerk’s refusal to enter the default was erroneous or provide legal authority to support his position, so the matter is waived. (Caldera, supra, 25 Cal.App.5th at pp. 46-47.) Moreover, he fails to establish error for multiple reasons. His request actually sought entry of default on the original complaint, which by that time was superseded. He fails to show that the deadline for responding to the second amended complaint had passed by the time he requested the default. (Code Civ. Proc., § 585, subd. (a).) And, as the court noted, entry of the default would have been improper because respondents had filed a demurrer. (Code Civ. Proc., § 585, subd. (a).)
B. Smith Fails to Establish Error as to the Demurrer
In his opening brief, Smith contends the court erred in stating he did not oppose a demurrer to his complaint, insisting that he did oppose the demurrer on February 20, 2019. He adds that the tentative ruling was not posted two days before the hearing.
Respondents do not address Smith’s arguments. Nonetheless, Smith cannot prevail on appeal unless he affirmatively establishes error, which he does not do. To the contrary, the page he cites in the clerk’s transcript shows that he filed an opposition to the demurrer, but he did so just one day before the hearing and did not serve opposing counsel until after the hearing. His opposition was thus untimely. (Code Civ. Proc., § 1005, subd. (b).) The court did not err in disregarding the opposition and considering the demurrer to be unopposed.
Moreover, Smith cannot obtain relief on appeal unless he affirmatively establishes that an error was prejudicial – that is, he must show that if the court had considered his opposition (and the tentative ruling had been posted two days before the hearing), the court would have (or should have) overruled the demurrer or granted leave to amend. To accomplish this, Smith must demonstrate that the second amended complaint stated a cause of action or that leave should have been granted. As discussed next, he fails to do so.
1. Waiver of Argument That He Stated a Cause of Action
Smith had the burden – in his opening brief on appeal – to demonstrate that the second amended complaint alleged facts sufficient to establish every element of a cause of action. (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43 (Rakestraw).) His opening brief did not identify, much less analyze, any cause of action. He therefore waived any argument that his allegations were sufficient. (Caldera, supra, 25 Cal.App.5th at pp. 46-47; Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010; Morgan v. Imperial Irrigation Dist. (2014) 223 Cal.App.4th 892, 913 [de novo review limited to issues adequately raised and briefed by citation to the record and supporting authority].)
2. Second Amended Complaint Does Not State a Cause of Action
In his reply brief (and his untimely opposition to the demurrer), Smith claimed his pleading stated a cause of action. Because these arguments are untimely, they should not be considered. But even if they were considered, they would be unavailing. Smith does not point to any specific allegation in his pleading or explain how his allegations established the elements of any cause of action. He does not demonstrate that his purported first and fifth causes of action, for “Violations of Business and Professions Civil Code Section § 1550 (legal contract)” and “Infringement of Trade Name,” are cognizable under California law. He does not explain how his claims against Peacock, who was not a named defendant in the first amended complaint, can survive in light of the fact that the court had not granted leave to add her as a defendant. He thus fails to show the court erred in sustaining the demurrer to the second amended complaint.
3. Smith Does Not Seek Leave to Amend
In his opening brief, Smith does not contend that the trial court abused its discretion by denying him further leave to amend. Nor does he address the issue in his reply brief. He therefore fails to establish error in this regard. (Rakestraw, supra, 81 Cal.App.4th at pp. 43-44.)
Because Smith has not established that his second amended complaint alleged facts sufficient to state a cause of action, or that the court abused its discretion in denying leave to amend, Smith does not prevail on his appeal from the judgment of dismissal.
III. DISPOSITION
The judgment is affirmed.
NEEDHAM, J.
We concur.
SIMONS, ACTING P.J.
BURNS, J.
(A157088)