Filed 5/7/20 Curtis v. Hasbun CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

GRETA S. CURTIS,

Plaintiff and Appellant,

v.

SALEH HASBUN et al.,

Defendants and Respondents.

B296393

(Los Angeles County

Super. Ct. No. BC602298)

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael L. Stern, Judge. Affirmed.

Greta S. Curtis, in pro. per., for Plaintiff and Appellant.

Law Offices of Robert A. Brown and Robert A. Brown for Defendants and Respondents.

INTRODUCTION

In this appeal we decide whether the trial court erred in dismissing, under Code of Civil Procedure section 472b (Section 472b), the action filed by plaintiff and appellant Greta S. Curtis. We affirm.

This is the second time Curtis’s case has come before us. Previously, Curtis appealed the trial court’s order sustaining a demurrer to her complaint without leave to amend. Finding the court correctly sustained the demurrer but erroneously denied leave to amend, we reversed and “remanded with directions to the trial court to grant Curtis leave to file a complaint containing” certain causes of action. We issued and served a remittitur on August 28, 2018. (Curtis v. Hasbun et al., (June 28, 2018, B278552) [nonpub.opn.].) After more than three months had passed and Curtis had failed to file an amended complaint, defendants and respondents Saleh Hasbun, Amber Hasbun, Melissa Hasbun, and Boostz, Inc. (defendants) moved to dismiss the case under Section 472b. The court granted the motion, and Curtis appealed.

On appeal Curtis argues: (1) the trial court had no power to grant defendants’ motion to dismiss because such an action would be a “material variance” from our previous directive to the trial court; (2) Section 472b is inapplicable here because we reversed the judgment resulting from the sustaining of the demurrer, not the order sustaining the demurrer; and (3) Curtis could not have filed an amended complaint without permission or action from the trial court. In her reply brief, she additionally argues that: (1) defendants’ interpretation of Section 472b would lead to the “absurd” result of requiring her to amend a complaint the court had already dismissed; and (2) Section 472b is inapplicable because we held the court erred in sustaining the demurrer. As detailed below, we conclude: (1) the court did not err in granting defendants’ motion to dismiss despite our previous directive to grant Curtis leave to amend; (2) Section 472b applies when, as here, reversing the judgment has the effect of reversing an order sustaining a demurrer without leave to amend; and (3) Curtis could have filed an amended complaint, or a motion seeking permission to do so. Additionally, though we need not address arguments first raised in a reply brief, we note that: (1) it is not absurd to require a plaintiff to amend a complaint after a court sustains a demurrer; and (2) contrary to Curtis’s contention, our previous opinion found the trial court correctly sustained the demurrer to her complaint, and erred only in denying leave to amend. We affirm the trial court’s judgment of dismissal.

STATEMENT OF RELEVANT FACTS

A. Curtis Files Two Lawsuits and Appeals Their Dismissal
B.
In November 2015, Curtis filed a complaint against the Hasbuns and their company Boostz for unpaid attorneys’ fees in the amount of $200,000 (Case No. BC602298, the First Action). Defendants’ demurrer to the complaint was set for hearing on February 4, 2016; Curtis therefore had until January 22, 2016, to file an opposition. Rather than do so, she instead filed an amended complaint on February 2, 2016. However, under the version of Code of Civil Procedure section 472 that became effective on January 1, 2016, this was impermissible without leave of court, which Curtis did not obtain. Consequently, on February 4, 2016, the trial court struck the amended complaint and sustained the demurrer without leave to amend. However, the court did not enter a judgment, and Curtis did not immediately appeal.

Instead, on March 2, 2016, she filed the stricken amended complaint from the First Action as an original complaint in a separate action (Case No. BC612413, the Second Action). The court sustained defendants’ demurrer to that complaint without leave to amend. Curtis timely appealed the dismissal of the Second Action.

On October 12, 2016, Curtis filed a notice of appeal in the First Action, appealing a “judgment of dismissal after an order sustaining a demurrer” (though no judgment of dismissal had yet been entered). On March 15, 2017, at our request, the trial court filed an order of dismissal in the First Action.

On June 28, 2018, we issued a single opinion addressing both appeals. In the First Action, we found that Curtis had shown no error in the trial court’s ruling sustaining the demurrer to her complaint, but concluded the trial court erred in denying leave to amend. We therefore reversed the judgment and “remanded with directions to the trial court to grant Curtis leave to file a complaint containing the following claims in her first amended complaint: the first cause of action for breach of contract (insofar as it is asserted against Boostz); the third, fourth, and sixth causes of action for common counts; and the seventh cause of action for fraud.” In the Second Action, we reversed the judgment as to four of the seven causes of action. On August 28, 2018, we issued a remittitur and served it on “All Counsel.”

C. The Trial Court Dismisses the First Action After Curtis Fails to File an Amended Complaint
D.
It appears neither the court nor any party took action after the remittitur was issued until over three months later when, on December 4, 2018, defendants moved to dismiss the First Action per Section 472b on the ground that Curtis’s deadline to file her amended complaint was September 27, 2018, and she had not filed an amended complaint. Curtis opposed the motion, arguing the trial court was without power to grant it because doing so would be a “material variance from the reviewing court[’s] directions” to give her leave to file a complaint. She claimed she could not “grant herself leave to file a complaint since [s]he did not have the power []or authority to do so.” She further claimed to have no “duty or obligation to file an amended complaint prior to the court granting her leave to do so.” In a declaration accompanying her opposition, she explained that she was “under the mistaken belief that the trial court would hold a status conference whereupon it would ‘grant’ [her] ‘leave to file’” an amended complaint, and stated that she “would have filed a motion seeking leave to file an amended complaint but the disposition did not require [her] to file a motion so [she] thought the Court would ‘grant’ [her] leave.” The court granted defendants’ motion to dismiss, and later entered judgment against Curtis. Curtis timely appealed.

DISCUSSION

In hearing defendants’ motion to dismiss, the trial court stated that because the Court of Appeal issued an opinion permitting Curtis to file an amended complaint, Section 472b gave her 30 days to file such a complaint. Because she undisputedly failed to do so, the court granted defendants’ motion. Curtis challenges the trial court’s interpretation of Section 472b. “Where . . . the construction of a statu[t]e is at issue, we independently review the statute to determine the validity of the judgment.” (County of Alameda v. Pacific Gas & Electric Co. (1997) 51 Cal.App.4th 1691, 1698.) As discussed below, we find the trial court did not err in dismissing the action; we consider and reject Curtis’s arguments to the contrary.

A. The Trial Court Did Not Err in Dismissing the Action
B.
Pagarigan v. Aetna U.S. Healthcare of California, Inc. (2007) 158 Cal.App.4th 38 (Pagarigan) is on point and is dispositive. In Pagarigan, after the trial court granted defendants’ demurrer to plaintiffs’ complaint without leave to amend, the Court of Appeal issued an opinion that “reversed . . . and remanded the case with instructions. The instructions were to sustain the [defendants’] demurrer with leave to amend as to the first and 11th causes of action, to sustain the [defendants’] demurrer without leave to amend on the remaining counts, and for further proceedings consistent with that opinion.” (Id. at 40.) Four months later, the clerk served a notice of remittitur. (Id. at 41.) The plaintiffs did not file an amended complaint, and the trial court neither issued an order permitting them to do so, nor changed its previous order sustaining defendants’ demurrer without leave to amend. (Ibid.) Six weeks after the remittitur was served, defendants moved to dismiss the action under Section 472b on the ground that plaintiffs had failed to timely file an amended complaint. (Pagarigan, supra, at 41, 42.) The trial court granted the motion and plaintiffs appealed. (Id. at 42.) The Court of Appeal affirmed, finding Section 472b to be “on point” and holding that “[t]he plain language of Code of Civil Procedure section 472b sets a deadline. Plaintiffs did not meet it. The trial court correctly granted [defendants’] motion to dismiss the [plaintiffs]’ case . . . .” (Id. at 42.)

The Pagarigan plaintiffs argued Section 472b did not apply because the 30-day deadline set forth therein “conflicted with this court’s more specific opinion . . . which gave instructions for remand. . . ‘to sustain the demurrer with leave to amend as to the first and eleventh causes of action . . . and . . . without leave to amend as to the remaining counts . . . and for further proceedings consistent with this opinion.’” (Pagarigan, supra, 158 Cal.App.4th at 42.) The Court of Appeal found no conflict, explaining that section 472b “sets out a procedural timeline. The appellate opinion set out substantive requirements. The substantive requirements could have been met within the procedural timeline. . . . Once this 30-day clock began to tick, it would have been straightforward for the [plaintiffs] to file an appropriate pleading. This pleading could have been, for instance, a motion (1) to enter an order sustaining [defendants’] demurrer as the Court of Appeal had directed, and (2) for leave to file an appropriately amended complaint. Such a pleading would have complied fully with all authorities. Indeed, it would have effectuated these rules. It would have kept this case moving forward, which is the aim of section 472b. The [plaintiffs]’ claim of conflict has no basis.” (Id. at 42-43.)

Additionally, while the Pagarigan court acknowledged that “appellate directions to a trial court are binding” and “leave of court is required under some circumstances for plaintiffs to amend their complaint,” it concluded neither of these truisms was an “excuse for [plaintiffs]’ inaction here.” (Pagarigan, supra, 158 Cal.App.4th at 43.) “In sum, Code of Civil Procedure section 472b required the [plaintiffs] to act within 30 days of the . . . remittitur date. The [plaintiffs] did not act within 30 days. It was not error for the trial court to grant [defendants’] motion to dismiss the [plaintiffs]’ suit.” (Ibid.)

We are faced with an identical situation: like the Court of Appeal in Pagarigan, we reversed the trial court’s sustaining of a demurrer with directions to the trial court to permit Curtis to file an amended complaint. Like the trial court in Pagarigan, the court below issued no orders after the remittitur, and Curtis neither filed an amended complaint, nor sought leave to do so. We thus reach the same conclusion as the Pagarigan court and find no error in the trial court’s granting of defendants’ motion to dismiss the First Action. (Pagarigan, 158 Cal.App.4th at 43.)

C. Curtis’s Arguments to the Contrary Are Unavailing
D.
1. The Court’s Actions Were Not Void
2.
Citing several cases for the general proposition that a trial court is required to follow an appellate court’s directions, Curtis argues that “[a]ny material variance from those directions was unauthorized and void.” Curtis is correct that “[w]hen there has been a decision upon appeal, the trial court is reinvested with jurisdiction of the cause, but only such jurisdiction as is defined by the terms of the remittitur. The trial court is empowered to act only in accordance with the direction of the reviewing court; action which does not conform to those directions is void.” (Hampton v. Superior Court of Los Angeles County (1952) 38 Cal.2d 652, 655.)

But this argument was directly addressed by Pagarigan: “The [plaintiffs] cite authorities for [the rule] . . . that appellate directions to a trial court are binding. This is true but is no excuse for the [plaintiffs’] inaction. . . . [¶] . . . It was not error for the trial court to grant [defendants’] motion to dismiss the [plaintiffs]’ suit.” (Pagarigan, supra, 158 Cal.App.4th at 43.) In other words, regardless of whether the trial court followed our directions, Curtis was not excused from following the mandate of Section 472b, and the trial court did not err in dismissing her case for failing to do so.

3. Section 472b Applies to Reversing a Judgment of Dismissal After a Successful Demurrer
4.
Curtis argues that Section 472b is inapplicable because we reversed the trial court’s judgment of dismissal and Section 472b “applies to demurrers and not the reversal of a judgment.” Curtis correctly notes that the text of Section 472b states that it applies “[w]hen an order sustaining a demurrer without leave to amend is reversed or otherwise remanded . . . .” But as Curtis herself recognizes, “an order denying leave to file an amended pleading is not directly appealable,” and “the proper mode of review [is] through appeal from the ensuing final judgment.” (See, e.g., Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1695 [“Orders sustaining demurrers are not appealable. [Citations.] An appeal can be taken after entry of such an order only after the court enters an order of dismissal”].) Curtis’s interpretation of Section 472b would render it meaningless, because an order sustaining a demurrer without leave to amend is never reversed — only the judgment or order of dismissal resulting therefrom. (See California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 634 [“We cannot presume the Legislature . . . engaged in an idle act or enacted a superfluous statutory provision”].) A more sensible interpretation, one impliedly adopted by Pagarigan, is that Section 472b applies when an appellate court issues an order that has the effect of reversing an order sustaining a demurrer without leave to amend. We issued such an order, and thus Section 472b applied.

5. Curtis Was Required to File an Amended Complaint, or Move the Court for Permission to Do So
6.
Curtis argues that she “could not ‘grant’ herself leave to file a complaint since she did not have the power or authority to do so,” and that she “did not have a duty or obligation to file an amended complaint prior to filing a complaint and the court granting her leave to do so.”

Pagarigan directly addressed Curtis’s argument, holding that Section 472b “sets out a procedural timeline” and noting that the plaintiffs there could have “file[d] an appropriate pleading” such as “a motion (1) to enter an order sustaining [defendant’s] demurrer as the Court of Appeal had directed, and (2) for leave to file an appropriately amended complaint.” (Pagarigan, supra, 158 Cal.App.4th at 43.) “Code of Civil Procedure section 472b required the [plaintiffs] to act within 30 days of the . . . remittitur date.” (Id. at 43.) Curtis, like the plaintiffs in Pagarigan, had a duty to file an amended complaint or seek leave to do so.

7. Curtis’s Arguments on Reply Fail
8.
In her reply brief, Curtis argues for the first time that: (1) interpreting Section 472b to apply here would lead to an “absurd result” because she would be required to amend a complaint that had already been dismissed; and (2) Section 472b does not apply because we previously found defendants’ demurrer should have been sustained only as to the second and fifth causes of action. Though we need not address these arguments, we briefly explain their defects below.

First, requiring a plaintiff to file an amended complaint after the trial court has sustained a demurrer is far from absurd — it is an everyday occurrence. “Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, ‘leave to amend is routinely and liberally granted . . . .’” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.)

Second, in arguing that we “sustained the demurrer to the second and fifth causes of action only,” Curtis conflates her two actions. In the Second Action, we held the demurrer should have been sustained only to the second, fourth, and fifth causes of action. But it is the dismissal of the First Action that is on appeal. In the First Action, we found “no error in the trial court’s ruling” sustaining the demurrer to Curtis’s complaint, only that “the trial court erred in denying leave to amend.” Thus, Section 472b applies.

DISPOSITION

The judgment is affirmed. Respondents are awarded their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL

REPORTS.

MANELLA, P. J.

We concur:

WILLHITE, J.

COLLINS, J.