Filed 5/4/18 Darulis v. San Miguel Consolidated Tire Protection Dist. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



MARK DARULIS,

Plaintiff and Appellant,

v.

SAN MIGUEL CONSOLIDATED FIRE PROTECTION DISTRICT et al.,

Defendants and Respondents.
D073147



(Super. Ct. No. 37-2017-00000625-
CU-WM-CTL)


APPEAL from an order of the Superior Court of San Diego County, Joel R. Wohlfeil, Judge. Affirmed.
Mark Darulis, in pro. per., for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
Mark Darulis, appearing in propria persona, appeals from a postjudgment order denying his second amended writ petition against Fire Preventive Service, Inc. (FPS) and San Miguel Consolidated Fire Protection District (the District). We affirm the order.
BACKGROUND
The District contracts with FPS for fire nuisance abatement. The District sent Darulis a notice in accordance with "local Ordinance 94-3 and/or 2014.1" (the Ordinances) to abate a fire hazard on his property within 30 days of the notice. The notice informed Darulis that the District would clear the property if he failed to do so. The notice provided information on how to appeal the decision. Darulis later received a "final notice" from the District to abate the fire hazard on his property. This notice stated that if the nuisance was not abated within 10 days the case would be assigned to a contractor for abatement and that Darulis would be charged all costs of the abatement, collection costs, attorney fees and administrative fees. The notice provided a telephone number to call if the nuisance had already been abated.
FPS sent Darulis a bill stated that it had been contracted by the District to reduce fire hazards, that his property was not in compliance with the Ordinances, and that he was being charged a $350 administrative fee. FPS then sent Darulis a final bill stating that if it did not receive the payment of the $350 owed, it would file an abatement lien on the property and that these costs would be added to his bill.
In January 2017 Darulis filed an action against FPS, labeled as a petition for writ of mandate under Code of Civil Procedure sections 1085 and 1094.5, to stop FPS from placing a lien on his property or add costs to his property tax bill. The proof of service purported to show service on the president of "San Diego County Fire Preventive Services." After hearing Darulis's arguments, the trial court issued a minute order dated April 24 (the April order) denying the petition based on defective service.
Darulis then filed an amended petition against FPS. The trial court issued a minute order dated June 23 (the June order) denying the amended petition on six grounds: (1) defective service; (2) the court was unable to determine the alleged wrongdoing or the relief sought; (3) no administrative hearing occurred as required by section 1094.5; (4) the documents appended to the petition were inadmissible; (5) the petition did not include a memorandum setting forth the applicable law and analyzing the relevant facts in light of legal authority; and (6) even ignoring the above, the petition appeared invalid because the "Service Agreement" between the District and FPS identified the District as the responsible public agency that imposed the charges.
Darulis filed a second amended petition naming both FPS and the District. He argued that: (1) FPS lacked jurisdiction to serve him with a notice to abate fire hazard, (2) FPS failed to comply with its service agreement with the District, (3) Ordinance 2014-1 violated Health and Safety Code section 14910, (4) the action against him must be dismissed based on violation of due process and Health and Safety Code section 14910, (5) the weight of the evidence did not support FPS's claim against him for money, and (6) the District could not impose a lien on behalf of FPS. Darulis sought an order that the District "reject or recall any monies FPS has submitted to them to place on [his] property tax bill."
After hearing oral argument, the court issued a minute order dated September 29 (the September order) denying the second amended petition. The court noted that Darulis did not receive leave to file a second amended petition and the petition constituted an improper motion for reconsideration of the court's prior decision denying the writ of mandate. The court noted, "If Petitioner seeks to assert a writ action against a new respondent (i.e., . . . [the] District), then he must initiate a new action. This legal action has now been concluded."
On October 27 Darulis filed a notice of appeal from the September postjudgment order.
DISCUSSION
I. SCOPE OF APPEAL
Darulis limited his notice of appeal to the September order. Despite this, his opening brief purports to challenge the trial court's April and June orders on his original and amended petitions.
"To appeal from a superior court judgment or an appealable order of a superior court, . . . an appellant must serve and file a notice of appeal." (Cal. Rules of Court, rule 8.100(a)(1).) "Care must be taken in drafting the notice of appeal to identify the order or judgment being appealed so as not to mislead or prejudice [the] respondent." (Morton v. Wagner (2007) 156 Cal.App.4th 963, 967.) Our jurisdiction to address trial court error is " 'limited in scope to . . . the judgment or order appealed from.' " (Soldate v. Fidelity National Financial, Inc. (1998) 62 Cal.App.4th 1069, 1073.) A "notice [of appeal from a trial court order or judgment] is sufficient if it identifies the particular judgment or order being appealed." (Rule 8.100(a)(2).) Although we are obligated to "liberally construe[ ]" a notice of appeal (Rule 8.100(a)(2)), when a notice unambiguously refers to a specific document and fails to mention another, it is inadequate to allow review of the second, unspecified, document. (Shiver, McGrane & Martin v. Littell (1990) 217 Cal.App.3d 1041, 1045 ["Despite the rule favoring liberal interpretation of notices of appeal, a notice of appeal will not be considered adequate if it completely omits any reference to the judgment being appealed."].)
"A judgment is the final determination of the rights of the parties in an action or proceeding." (§ 577.) An appeal lies only from a final judgment that terminates the trial court proceedings by completely disposing of the matter in controversy. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 697.) " 'A judgment is final "when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined." ' " (Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 304.)
Here, the June order was a final appealable judgment because it resolved Darulis's amended petition on its merits. (Estate of Miramontes-Najera (2004) 118 Cal.App.4th 750, 755 ["[W]e may consider orders a final judgment for purposes of appeal when . . . they have all the earmarks of a final judgment."].) Darulis's notice of appeal, however, only sought review of the trial court's September order. It did not identify the June order. We therefore are jurisdictionally barred from reviewing the June order.
Assuming, without deciding, that the April order denying Darulis's original petition based on improper service of process on FPS is an appealable interlocutory order, Darulis later properly served FPS with his amended petition and the trial court ruled on the merits of the amended petition in its June order. Accordingly, even assuming the trial court erred in its April order, the assumed error is of no consequence.
We disregard Darulis's arguments regarding the June and April orders and limit our discussion to the September order, which is an appealable postjudgment order. (§ 904.1, subd. (a)(2).)
II. SEPTEMBER ORDER
The June order denied Darulis's amended petition, citing five procedural grounds and finding that the petition was "substantively invalid" because the service agreement between the District and FPS provided that unpaid charges are imposed by the District, not the private contractor. The court concluded by "question[ing] whether this Petition should be directed at the public entity, not the private contractor."
Thereafter, Darulis filed a second amended petition naming FPS and the District. The September order "denied" this petition. The trial court noted that its June order was dispositive, that it had not given Darulis leave to file a second amended petition, and that the present petition constituted an improper motion to reconsider the June order. The court stated that if Darulis wanted to assert a claim against the District that he must institute a new action.
A party is permitted to amend a pleading "once without leave of the court at any time before the answer, demurrer, or motion to strike is filed . . . ." (§ 472, subd. (a).) The right to file an amended pleading during this time, without leave of court, includes the right to file an amended complaint to add new parties. (Gross v. Department of Transportation (1986) 180 Cal.App.3d 1102, 1105.) Accordingly, Darulis had a statutory right to file his amended complaint, which the trial court decided via its June order.
The plain language of section 472 provides the right to a single amendment of an original pleading without leave of court. In turn, section 473 provides that "[t]he court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding . . . the name of any party . . . ." (§ 473, subd. (a)(1), italics added.) Taken together, sections 472 and 473 provide that once the statutory right to amend the original pleading has expired, especially where (as here) the court has ruled on the legal sufficiency of a pleading, all further requests to amend require leave of court. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612-613 ["After expiration of the time in which a pleading can be amended as a matter of course, the pleading can only be amended by obtaining the permission of the court."].) To obtain the court's permission, a plaintiff must file a noticed motion. (Id. at p. 613.) Here, Darulis did not seek, or receive, leave to file the second amended petition.
"The court may . . . , at any time in its discretion, and upon terms it deems proper: [¶] . . . [¶] (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court." (§ 436.) Although the September order is styled as one denying the petition, we construe it as an order striking the second amended petition on the court's own motion.
An order striking a pleading is reviewed under the abuse of discretion standard. (Pacific Gas & Electric Co. v. Superior Court (2006) 144 Cal.App.4th 19, 23.) The trial court's order is entitled to a presumption of correctness on appeal, and the appellant bears the burden of affirmatively demonstrating prejudicial error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566; Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528.)
Here, Darulis failed to comply with the established procedural laws of this state when he filed the second amended petition. Darulis also failed to meet his burden showing the trial court erred in denying, or striking, his second amended petition. While we recognize that Darulis is self-represented, he is held to the same standard as an attorney. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) Self-representation is not a ground for lenient treatment and, "as is the case with attorneys, pro. per. litigants must follow correct rules of procedure." (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.) The trial court did not err in striking the second amended petition.
DISPOSITION
The order is affirmed.



NARES, J.

WE CONCUR:



HUFFMAN, Acting P. J.



AARON, J.