Gonsalves v. Conseco Ins. Co.

Filed 3/12/07 Gonsalves v. Conseco Ins. Co. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Placer)

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In this case, we reject attorney Victor Gonsalvess factually and legally unsupportable assertion that the state court lost jurisdiction to dismiss a Placer County case with prejudice once a Sacramento County case based on similar allegations was removed to federal court. No stranger to this court, Gonsalves (plaintiff) appeals the order of dismissal with prejudice of one of his many lawsuits against defendant Conseco Insurance Company after the court sustained defendants demurrer and plaintiff failed to file a timely amendment, then voluntarily dismissed the case. We reject not only his jurisdictional argument, but the hopeless attempts he makes to save his Placer County action on the merits. We affirm.

FACTS

On April 22, 2005, plaintiff filed his first amended complaint against defendant, among others, in Placer County, alleging various contract and tort claims. The trial court sustained defendants demurrer and ordered plaintiff, who appeared at the hearing on July 19, 2005, to file a second amended complaint within 20 days of the hearing. On July 26, defendant served plaintiff with a written notice of the courts ruling. Plaintiff did not file a second amended complaint within 20 days. On September 26, 2005, he voluntarily dismissed the Placer County action without prejudice.

Less than three months later, however, he filed another lawsuit based on similar facts in Sacramento County. On December 22, 2005, defendant requested the superior court in Placer County to vacate plaintiffs voluntary dismissal without prejudice and to dismiss the case with prejudice. The court granted the motion. Plaintiff sought to vacate the order, claiming surprise at the courts ruling. The motion was denied. Plaintiff appeals.

DISCUSSION

I

A plaintiff cannot voluntarily dismiss an action without prejudice after failing to file an amended complaint within the specified time ordered by a court in sustaining a demurrer. (Groth Bros. Oldsmobile, Inc. v. Gallagher (2002) 97 Cal.App.4th 60, 66.) To allow a plaintiff to dismiss and begin anew would subvert the statutory scheme limiting the plaintiffs right of dismissal (Code Civ. Proc., 581), subject a defendant to annoying and continuous litigation (Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 785-786), and burden our courts with fruitless and wasteful proceedings (id. at p. 789). For this reason, the trial court granted defendants motion to vacate the voluntary dismissal and entered a dismissal with prejudice.

Plaintiff insists the order and ensuing judgment are void because the court was without jurisdiction. Ignoring the key facts and relying on inapposite federal authority, plaintiff argues that the removal of his later filed Sacramento County lawsuit to federal court divested the superior court of jurisdiction to make any further rulings in the earlier case filed in Placer County. We will identify the dispositive facts before exposing the flaws in plaintiffs analogy to federal removal cases.

First, of course, is the important fact that the Placer County action was not removed to federal court; it was only the Sacramento County action that was removed. Second, the federal court never enjoined proceedings in the Placer County action. Third, the Placer County action was filed first, and therefore, there is no suggestion it was filed to subvert the federal courts jurisdiction.

Despite these facts, plaintiff relies on Kansas Public Emp. Ret. Systems v. Reimer & Koger (8th Cir. 1996) 77 F.3d 1063, in which the plaintiffs attempted to do an end run around federal court jurisdiction with transparent procedural maneuvers. The case was removed to federal court after a party was joined and a federal question was presented. The plaintiff filed a new state suit against one of the defendants in the earlier case. In this case, the district court specifically found that KPERSs newly filed state suit against Peat, Marwick was an attempt to subvert the removal of the earlier case. The court further found that the new suit was substantially identical to the old and that KPERS had merely tried to carve up what was one case into separate cases with separate claims, all leading to a subversion of the RTCs right to remove the entire case. (Id. at p. 1070.)

Similarly, in Frith v. Blazon-Flexible Flyer, Inc. (5th Cir. 1975) 512 F.2d 899 (Frith), the court found that to justify an injunction of state court proceedings, the federal court must find a species of fraud; that is, an attempt to subvert the purposes of the removal statute. Because the first federal district court judge had expressly found that the plaintiffs second suit was not brought in an attempt to subvert the federal court of jurisdiction, the Fifth Circuit Court of Appeals held that the state proceedings should not be enjoined.

Here, like in Frith, there could be no attempt to subvert the jurisdiction of the federal court because the Placer County action was filed before the Sacramento County action was removed and defendant sought to have the Placer County action dismissed. Plaintiff here would turn the federal cases on their heads by allowing a plaintiff to escape the consequences of his own failure to file a timely amendment in state court by using federal law designed to preclude such mischief by plaintiffs.

Neither Lapides v. Board of Regents (2002) 535 U.S. 613 [152 L.Ed.2d 806] (Lapides) nor Embury v. King (9th Cir. 2004) 361 F.3d 562 (Embury) dictate a different result. Plaintiff contends these cases stand for the proposition that federal courts would find that the removal of the Sacramento County case automatically suspended the jurisdiction of the state court over the Placer County action. Not so. These cases have nothing to do with the suspension of jurisdiction. As defendant correctly points out, these cases merely hold that a state waives Eleventh Amendment immunity when it voluntarily removes a case to federal court, and that defendant is not a state, it has no asserted immunity, and the Placer County action has not been removed to federal court. Unlike Lapides and Embury, this is not an appeal from the removal of a state action to federal court. Moreover, the status of the Sacramento County case in federal court has no bearing on the jurisdiction of the state court in the Placer County case.

If, as plaintiff asserts, there were any facts to support his raw allegation that defendant was manipulating the judicial process and/or subverting the federal courts jurisdiction, he should have requested the federal court to enjoin the Placer County action. (Hull v. Burr (1914) 234 U.S. 712 [58 L.Ed. 1557]; Kern v. Huidekoper (1881) 103 U.S. 494 [26 L.Ed. 497]; French v. Hay (1875) 89 U.S. 250 [22 L.Ed. 857].) In essence, he asks us to enforce a phantom injunction. He cites no authority, and we have found none, for the radical notion that a state courts jurisdiction is divested in one case when an entirely different, albeit similar, case is removed to federal court. As we stated at the outset, neither the facts nor the law support plaintiffs argument.

II

Plaintiff contends that even if the court had jurisdiction to rule on defendants motion, the ruling was erroneous. Again, his complaints are tardy and misdirected. We begin with the procedural chronology.

At a hearing on July 19, 2005, the court sustained defendants demurrer to various causes of action and overruled it as to others. The court granted plaintiffs request for 20 days in which to file an amended complaint. Plaintiff was personally present at the hearing. There is no indication in the record that plaintiff waived notice. On July 26 defendant gave written notice of the courts ruling, and on August 2 presented an order to the court. The order was mistakenly rejected because court personnel relied on the courts tentative ruling rather than the final ruling made at the hearing. Twenty days from the date of the hearing was August 8.

Plaintiff attempted to file his second amended complaint on August 9. It was rejected as untimely. Plaintiff did not seek any relief from the rejection of his amended complaint. Instead, on December 7, he filed a similar action in Sacramento County after seeking to dismiss the Placer County action on September 26.

Now in the wrong court at the wrong time, plaintiff argues defendants motion should not have been granted because the court never signed an order, the amended complaint should have been accepted for filing because 20 days had not passed after service of notice, and we should reverse because the law favors resolution of disputes on their merits. Section 472b of the Code of Civil Procedure does not, as he suggests, excuse his delinquency.

Code of Civil Procedure section 472b provides: When a demurrer to any pleading is sustained or overruled, and time to amend or answer is given, the time so given runs from the service of notice of the decision or order, unless notice is waived in open court, and the waiver entered in the minutes. When an order sustaining a demurrer without leave to amend is reversed or otherwise remanded by any order issued by a reviewing court, any amended complaint shall be filed within 30 days after the clerk of the reviewing court mails notice of the issuance of the remittitur.

Indeed, pursuant to Code of Civil Procedure section 472b, the rejection of the second amended complaint on August 9, 2005, may have been erroneous. But plaintiff did not litigate that issue in the trial court, nor did he seek extraordinary relief. As a result, when defendant filed its motion to vacate and dismiss, plaintiff had not filed a second amended complaint. In granting defendants motion, the court explained, in pertinent part:

Additionally, Plaintiff had several options available to him if he believed that the clerks office erroneously rejected his 2d amended complaint. Plaintiff could have filed a motion for clarification, a motion for an order directing the clerk to file the 2d amended complaint, a motion requesting additional time to file the 2d amended complaint, or a motion for relief under CCP 473. Plaintiff did none of those things. Instead, Plaintiff filed a dismissal without prejudice as to the Conseco Defendants on Sept. 29, 2005, and then filed a complaint in Sacramento County in an attempt to avoid the consequences of failing to file an amended complaint after a demurrer had been sustained with leave to amend.

The court notes that while Plaintiff has asserted that he has a right to relief under CCP 473 in his opposition to this motion, Plaintiff has yet to file a motion affirmatively seeking that relief.

Thus, as defendant aptly points out, plaintiff finds himself in a predicament of his own making. He got an adverse ruling on the Conseco defendants demurrers, didnt amend within the time allowed by the court, didnt seek relief from his failure to do so, and chose, rather, to attempt to manipulate the judicial process (to use a phrase he has picked up on) by dismissing the Conseco defendants without prejudice, something that is expressly prohibited by the law, so he could refile in another court. The court properly vacated plaintiffs voluntary dismissal inappropriately entered after a demurrer had been granted with leave to amend and an amendment was not filed.

The judgment is affirmed.

RAYE , Acting P.J.

We concur:

MORRISON , J.

ROBIE , J.

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