Filed 9/16/20 Buckley v. NBC Universal CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

TRISTRAM BUCKLEY,

Plaintiff and Appellant,

v.

NBC UNIVERSAL, INC.,

Defendant and Respondent.

B299646

(Los Angeles County

Super. Ct. No. BC706084)

APPEAL from an order of the Superior Court of Los Angeles County, Lia Martin, Judge. Affirmed.

Tristram Buckley, in pro. per., for Plaintiff and Appellant.

P.K. Schrieffer, Paul K. Schrieffer, Hee Jae J. Yoon, for Defendant and Respondent.

__________________________

Plaintiff and appellant Tristram Buckley appeals from a judgment of dismissal following an order sustaining a demurrer in favor of defendant and respondent NBC Universal, Inc., dba Universal Studios (Universal) in this action arising out of injuries that Buckley suffered on a theme park ride. After the trial court denied Buckley’s request for a waiver of court fees, Buckley failed to pay the court fees, file a revised request, or request a hearing on the order denying the waiver, so the court voided the complaint pursuant to Government Code section 68634, subdivision (g). The court subsequently granted an ex parte motion to reinstate the complaint based on excusable neglect or mistake under Code of Civil Procedure section 473, but later sustained a demurrer brought by Universal on the ground that the court lost jurisdiction when the complaint was voided. On appeal, Buckley contends: (1) the trial court should have granted his request for a fee waiver, because the form was complete and no supporting documentation was required; and (2) the trial court had jurisdiction to set aside a dismissal of the complaint. We conclude that Buckley has not shown that the complaint states a cause of action, the record is inadequate to review contentions regarding his original application for a fee waiver, and the trial court had no jurisdiction under Code of Civil Procedure section 473 to vacate a dismissal of the complaint for failure to pay filing fees or obtain a fee waiver. Therefore, we affirm.

FACTS AND PROCEDURAL BACKGROUND

Buckley, a licensed California attorney acting in pro per, filed a complaint on May 11, 2018, against Universal, Robocoaster, LTD, Kuka Robotics, Inc., and Dynamic Structures, for battery, fraud and deceit, concealment, premises liability, negligence, violation of the Consumer Legal Remedies Act, false advertising, unfair business practices, deceit upon the public, product liability, and breach of contract. He alleged that he had suffered spinal injuries on the theme park ride Harry Potter and the Forbidden Journey weeks after it first opened to the public in California, and required surgery to replace damaged discs.

Buckley filed a request for a fee waiver on May 11, 2018. The request has not been made part of the appellate record. The trial court denied the request on May 14, 2018. The court indicated that the request was incomplete and provided 10 days to pay the fees or file a new revised request “that includes the items listed below . . . : Please provide the court with your means of support.” The court clerk mailed a copy of the order to Buckley on May 15, 2018. On June 4, 2018, the court clerk sent a notice stating that because the request for a fee waiver was denied on May 14, 2018, and Buckley had failed to make payment, the complaint was now voided pursuant to Government Code section 68634, subdivision (g).

On July 31, 2018, Buckley filed an ex parte application for relief pursuant to Code of Civil Procedure section 473, subdivision (b). He stated that he did not receive the court’s notice that the fee waiver was denied or the notice that the complaint was voided. He did not learn his complaint was dismissed until he reviewed the case information online. He stated that the complaint was timely when filed, but he would forfeit his claims if relief was not granted. Buckley also filed a new request for a fee waiver on July 31, 2018.

There is no evidence in the appellate record showing Buckley served the defendants with the ex parte motion or otherwise gave notice to Universal of the ex parte proceeding. The July 31, 2018 fee request is also not part of the record on appeal.

On July 31, 2018, Buckley appeared for the ex parte hearing, but there was no appearance for any of the defendants. The trial court granted the ex parte application pursuant to Code of Civil Procedure section 473, subdivision (b), “as the dismissal resulted from surprise and inadvertence. The dismissal is ordered vacated and the action is reinstated. The Clerk’s Office is requested to process the new Fee Waiver, submitted July 31, 2018.” The trial court granted the new fee waiver request on August 1, 2018.

Buckley filed a 71-page amended complaint on September 24, 2018. On February 28, 2019, Universal filed a demurrer on several grounds. Universal argued that after the original complaint was voided, the trial court did not have jurisdiction to reinstate the complaint under Code of Civil Procedure section 473. In addition, Universal argued in detail that the amended complaint failed to state a cause of action as to each of the causes of action listed.

Universal submitted a request for judicial notice of several documents, including Buckley’s declaration filed in a different case in opposition to a motion to declare him a vexatious litigant. In the declaration, Buckley noted he had a pre-existing spinal injury from a surfing accident, including several damaged cervical and lumbar discs, that was severely aggravated by riding on the newly opened Harry Potter ride at Universal Studios in May of 2016.

Prior to the hearing on the demurrer and without leave of court, Buckley filed an 80-page second amended complaint. He also filed an opposition to the demurrer. He argued that several of the causes of action stated in the complaint had three- and four-year statutes of limitation, so for Universal to assert that Buckley was barred from litigating the action further based on the statute of limitations was a false representation intended to mislead the court. He also argued that his original fee waiver request had been complete, because the form was complete under the statute because it was fully filled out. The form did not require Buckley to provide his “means of support.” The court’s options when it had reviewed his request for a fee waiver were to grant the application or set the matter for a hearing to determine the veracity of the information on the form. Buckley concluded that, the court having failed to select one of the options, the fee waiver was deemed granted by operation of law. He also attempted to distinguish the case relied on by Universal, Hu v. Silgan Containers Corp. (1999) 70 Cal.App.4th 1261 (Hu). Buckley argued the issues raised by Universal as to individual causes of action were moot, because he had filed a responsive amended complaint.

Universal filed a reply arguing the demurrer must be sustained, because Buckley had not contested that the amended complaint failed to plead sufficient facts to constitute any cause of action. In addition, Buckley had failed to address the holding in Hu that relief could not be obtained under Code of Civil Procedure section 473, because the court had no authority to reinstate the complaint under that section. The second amended complaint must be disregarded, because Buckley did not seek leave of court and the parties did not stipulate to file it.

On April 1, 2019, Buckley filed a declaration in support of his opposition which addressed arguments made in Universal’s reply. On April 12, 2019, Buckley filed a supplemental declaration and a blank fee waiver request form in support of his opposition. The form requires the applicant to select one of three reasons for the fee waiver. If the applicant checks the box that corresponds to having a gross monthly income 125 percent or less of the current poverty guidelines under Government Code section 68632, subdivision (b), as Buckley represents in his brief on appeal that he did, then the applicant must fill out three additional questions on the form. One of the additional questions asks the applicant to list the source and the amount of any income that is received each month, with space provided to describe the means of support and the amount.

A hearing was held on May 31, 2019. No reporter’s transcript has been made part of the record on appeal. The trial court sustained the demurrer without leave to amend and, in a written decision filed the day of the hearing adopting its tentative ruling, ordered the action dismissed, including the second amended complaint. The court noted that defendants argued the trial court had lost jurisdiction when plaintiff failed to either provide a revised request for a fee order or pay the required fees within 10 days of the notice given on May 15, 2018. Buckley argued that he had been given relief from that failure when the court had subsequently granted his ex parte request pursuant to section 473, subdivision (b), reinstating the case, and that the denial of his request was erroneous and he had not received notice.

The court found the denial of the fee waiver in May 2018 complied with Government Code section 68634, because “[t]he order on the fee waived is checked at box (4)(b), stating that the fee waiver is denied. Under that, in subbox (1) it asks for a new revised request which includes providing the court with ‘your means of support.’ [Buckley] was given ten days to pay the fees or provide a new revised fee waiver request. [He] did neither.” The court concluded that “[Buckley] was given a specific reason for the denial [of his fee waiver application] and a reasonable opportunity to submit a revised application.”

On July 29, 2019, Buckley filed a notice of appeal from the judgment of dismissal after the order sustaining the demurrer.

DISCUSSION

Standard of Review

“In our de novo review of an order sustaining a demurrer, we assume the truth of all facts properly pleaded in the complaint or reasonably inferred from the pleading, but not mere contentions, deductions, or conclusions of law. [Citation.] We then determine if those facts are sufficient, as a matter of law, to state a cause of action under any legal theory. [Citation.] [¶] In making this determination, we also consider facts of which the trial court properly took judicial notice. [Citation.] Indeed, a demurrer may be sustained where judicially noticeable facts render the pleading defective [citation], and allegations in the pleading may be disregarded if they are contrary to facts judicially noticed.” (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 751 (Scott).)

“In order to prevail on appeal from an order sustaining a demurrer, the appellant must affirmatively demonstrate error. Specifically, the appellant must show that the facts pleaded are sufficient to establish every element of a cause of action and overcome all legal grounds on which the trial court sustained the demurrer. [Citation.] We will affirm the ruling if there is any ground on which the demurrer could have been properly sustained.” (Scott, supra, 214 Cal.App.4th at p. 752.)

Failure to Allege Facts Stating a Cause of Action

In the trial court, Buckley did not oppose Universal’s arguments showing the amended complaint failed to state a cause of action on any theory. On appeal, Buckley does not contend that the amended complaint alleged facts sufficient to state a cause of action or that he could further amend the complaint to state a cause of action. From our review of the record, the second amended complaint that Buckley filed without leave of court alleges the mechanics of robotic arms, the rise of robots, and multiple statements by unrelated third parties in online reviews. The second amended complaint does not even allege the specific date that the injury occurred in this case or any particular factual allegations related to the incident. On appeal, Buckley has not shown that the operative, amended complaint stated a viable cause of action or could be amended to state a cause of action. For this reason alone, the judgment must be affirmed.

No Reinstatement of Void Complaint

Even if we were to conclude that a cause of action was properly alleged, the judgment must be affirmed. The complaint was voided after the court denied Buckley’s initial request for a fee waiver and, as a result, could not be reinstated under Code of Civil Procedure section 473. Buckley contends that the trial court erred by denying his original request for a fee waiver, but the record is inadequate to allow review of the ruling on the original application and Buckley has not demonstrated error on appeal.

A. Statutory Scheme

The trial court’s processing and determination of fee waiver applications is governed by Government Code section 68634. “All applications for an initial fee waiver shall be accepted for filing. If an applicant submits an application without providing all required information to complete the form, the clerk may request that the applicant supply the omitted information, but shall not refuse to file the application, or refuse to file any pleadings accompanying the application, on the ground that the fee has not been paid. The clerk shall not request that the applicant furnish information that is not required on the Judicial Council fee waiver application form. At the time the application is submitted, the clerk shall not request that the applicant provide documents to support the information other than those required under Section 68633.” (Gov. Code, § 68634, subd. (b).)

A person who has filed an application for an initial fee waiver must be permitted to file his or her pleading immediately, without paying any fees. (Gov. Code, § 68634, subd. (c).) When the court reviews an application for an initial fee waiver, the court must: (1) grant the application if the information shows the applicant meets the criteria for eligibility; (2) deny the application if it is incomplete, and if denied on this basis, give the applicant notice of the specific reason for denial and a reasonable opportunity to submit a revised application; (3) deny the application if the information conclusively establishes the applicant is not eligible, and if denied on this basis, give notice of the specific reason for denial and a reasonable opportunity to request a hearing where the applicant may submit additional information; (4) set an eligibility hearing if the court has good reason to doubt the truth of the factual statements in the application; or (5) set an eligibility hearing if the information in the application does not conclusively establish whether the applicant is or is not eligible. (Gov. Code, § 68634, subd. (e).)

If the court does not give notice of action on the application within five court days after it is filed, the application is deemed granted. (Gov. Code, § 68634, subd. (f).) “If an application is denied in whole or in part, the applicant shall pay the court fees and costs that ordinarily would be charged, or make the partial payment as ordered by the court, within 10 days after the clerk gives notice of the denial, unless within that time the applicant submits a new application or requests a hearing under subdivision (e). If the applicant does not pay on time, the clerk shall void the papers that were filed without payment of the court fees and costs.” (Gov. Code, § 68634, subd. (g).)

B. Inadequate Record

The trial court served notice that Buckley’s application for a fee waiver was incomplete. He contends the court should have granted his application, because it was in fact complete, but has waived this issue by failing to pursue the remedies provided by statute and failing to provide an adequate record for review on appeal.

Buckley did not exercise his rights under the fee waiver statute to file a revised application within the applicable time period or request a hearing in the trial court to contest the court’s determination. In his ex parte motion to vacate the dismissal, he did not argue that his fee waiver application was improperly denied because it was in fact complete. He did not seek a writ of mandate directing the trial court to grant the fee waiver, and he did not file a timely notice of appeal from the denial of the fee waiver.

Even were we to conclude that the denial of Buckley’s fee waiver is reviewable under the procedural posture of this case, we would conclude that Buckley waived the issue by failing to provide an adequate record for review on appeal. The party challenging the trial court’s ruling has the burden of showing reversible error by an adequate record. (Cal. Rules of Court, rule 8.120; Scala v. Jerry Witt & Sons, Inc. (1970) 3 Cal.3d 359, 367, fn. 4; Baranchik v. Fizulich (2017) 10 Cal.App.5th 1210, 1226.) When there is an inadequate record, we must presume any matters that could have been presented to support the trial court’s order were in fact presented, and may affirm the trial court’s determination on that basis. (Bennett v. McCall (1993) 19 Cal.App.4th 122, 127.) An appellant’s failure to present an adequate record will result in the issue being resolved against appellant. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295–1296.)

Here, Buckley failed to provide this court with the record necessary to review his challenge to the trial court’s fee determination. The California Rules of Court provide for transmission of confidential records to the appellate court in a secure manner that preserves the confidentiality of the record (Cal. Rules of Court, rules 8.45, 8.47), but Buckley did not designate his fee waiver application or otherwise make it part of the record on appeal. He also failed to provide reporter’s transcripts of the hearings on the ex parte motion or the demurrer. The trial court’s order on the ex parte motion impliedly finds that the original application was not complete, because the court ordered the second application to be granted. We do not know what factual concessions were made at the ex parte hearing and we cannot review the basis for the trial court’s ruling.

To the extent Buckley’s claims are reviewable on the record provided, no error has been shown. The trial court denied Buckley’s application because he failed to provide information about his means of support. One of the questions on the application requires the applicant to state information about the means of support. In the absence of the actual application, we presume that the trial court followed the law, and that Buckley either submitted no information about his means of support or listed insufficient information. Buckley contends that he was not required to provide documentation of his means of support, but there is no evidence that the trial court requested or required any documentation, rather than required information. No error has been shown.

C. Jurisdiction

Buckley contends the trial court had jurisdiction to grant his motion for relief to reinstate the complaint under Code of Civil Procedure section 473. This is incorrect.

If an application for a fee waiver is denied, the applicant must pay the filing fees, unless the applicant submits a new application or requests a hearing. If the applicant does not pay on time, the clerk must void the papers that were filed without payment. (Gov. Code, § 68634, subd. (g).)

Code of Civil Procedure section 473 cannot provide relief for errors that are jurisdictional, such as failing to timely pay filing fees. (See Davis v. Superior Court (1921) 184 Cal. 691, 695–696 [no jurisdiction under Code of Civil Procedure section 473 to vacate dismissal that resulted from failing to pay fees to transfer file for change of venue]; Hu, supra, 70 Cal.App.4th at pp. 1267–1271 [no jurisdiction under Code of Civil Procedures section 473 to vacate dismissal for failure to pay fees after check is returned without payment under Code of Civil Procedure section 411.20].)

In Hu, the plaintiff’s check for filing fees was returned for insufficient funds and the clerk sent a notice that the plaintiff had 20 days to pay the fees. (Hu, supra, 70 Cal.App.4th at pp. 1263–1264.) The plaintiff did not receive the notice; mail was often stolen at the plaintiff’s apartment complex. Similar to the language of Government Code section 68633, subdivision (g), Code of Civil Procedure section 411.20 states the clerk “shall void the filing” if a party whose check has been returned does not pay the fee within the statutory time period. (Code Civ. Proc., § 411.20, subd. (b).) After the expiration of the statutory time limit, the clerk voided the complaint. The trial court reinstated the complaint, but later granted judgment on the pleadings on the grounds that the court lacked jurisdiction to reinstate the complaint.

The decisions in Davis and Hu did not turn on the reason the fees were unpaid or who failed to pay them, but on the fact that the jurisdictional requirement of timely payment had not been met. Once the court loses jurisdiction, by whatever cause, it has no power to grant relief. (Hu, supra, 70 Cal.App.4th at p. 1266.) The trial court properly granted the demurrer on the ground that the court lost jurisdiction when the complaint was voided, and the dismissal could not be vacated under Code of Civil Procedure section 473.

Buckley contends that the trial court could not reverse the ruling on the ex parte motion. This is incorrect. The trial court’s jurisdiction to vacate the dismissal under Code of Civil Procedure section 473 was reviewable in the subsequent proceeding, as shown in Hu.

DISPOSITION

The judgment is affirmed. Respondent NBC Universal, Inc., dba Universal Studios is awarded its costs on appeal.

MOOR, J.

We concur:

RUBIN, P. J. BAKER, J.

Parties and Attorneys
Buckley v. NBC Universal Studios LLC
Division 5
Case Number B299646
Party Attorney

Tristram Buckley : Plaintiff and Appellant
426 S. Rexford Drive #12
Beverly Hills, CA 90212 Pro Per

NBC Universal Studios LLC : Defendant and Respondent
Paul Karsten Schrieffer
P.K. Schrieffer, LLP
100 N. Barranca Avenue, Suite 1100
West Covina, CA 91791

Hee Jae James Yoon
P.K. Schrieffer LLP
100 N Barranca St
Ste 1100
West Covina, CA 91791-1659