Taranto v. Whittier College

Filed 9/28/06 Taranto v. Whittier College CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from judgments of the Superior Court of Orange County, Thomas N. Thrasher, Sr., (G034772) and Kazuharu Makino (G035515), Judges. Affirmed.

Bradley S. Taranto, in pro. per., for Plaintiff and Appellant.

Musick, Peeler & Garrett, Stuart W. Rudnick and Bethany A Pelliconi for Defendant and Respondent Whittier College/Whittier Law School.

Maher & Maher and Michael K. Maher for Defendants and Respondents O’Neil Data Systems, Inc., and William O’Neil & Company, Inc.

* * *

Bradley Taranto is a former law student dismissed from Whittier College School of Law (Whittier) after a disciplinary hearing board received evidence from faculty and students about bizarre, disruptive, and threatening behavior. Taranto sued Whittier for various causes of action, including violations of the Unruh Civil Rights Act, the Fair Employment and Housing Act (FEHA), slander, breach of contract and intentional infliction of emotional distress. Taranto also joined as defendants Stride & Associates, Inc. (Stride), an employment agency that had placed him in several jobs in the technology sector before his problems at Whittier surfaced, and William O’Neil & Company, Inc. (O’Neil), a potential employer which allegedly conspired with Stride to have Taranto take a psychological test.

Whittier obtained summary judgment on Taranto’s claims, and we affirmed the judgment on November 23, 2004. (Taranto v. Whittier College (Nov. 23, 2004, G033813) [nonpub. opn.].) In response, Taranto amended his complaint on January 15, 2005, to add “Whittier Law School” as a “Doe” defendant. The trial court granted Whittier’s demurrer to Taranto’s amended complaint. Taranto appeals from this decision (docket No. G034772).

Taranto’s lawsuit against the O’Neil defendants proceeded to a bench trial.^[1] The trial court rendered judgment for the O’Neil defendants. Taranto separately appeals from this judgment (docket No. G035515). We consolidate Taranto’s two pending appeals for decision. After considering Taranto’s arguments and reviewing the record, we find no basis for disturbing the judgment.

I

Claims Against Whittier

A. Procedural Background

In March 2002, Taranto filed his first amended complaint. Among other changes from the original, he removed “Whittier Law School” as a named defendant and replaced it with “Whittier College.”

On January 8, 2004, the trial court granted Whittier College’s summary judgment motion. The court explained in its written order that Taranto’s separate statement was deficient, several causes of action were barred by Taranto’s failure to exhaust administrative remedies, and there was no issue of fact refuting Whittier’s showing it had a legitimate, nondiscriminatory reason to expel Taranto. As noted above, we affirmed the court’s summary judgment in an unpublished opinion on November 23, 2004.

On January 15, 2004, Taranto filed an amendment to the complaint substituting “Whittier Law School” in place of “Doe[] 1.” On January 8 and March 2, Taranto had the complaint served on “Whittier Law School” and subsequently requested entry of default.

On March 11, the court filed the summary judgment. The judgment recounted the court had previously “granted the Motion of Defendant Whittier College . . . erroneously sued as Whittier Law School (‘Defendant’) for Summary Judgment as to the Plaintiff’s entire First Amended Complaint . . . .”

In June 2004, “Whittier Law School” noticed a demurrer to the first amended complaint. It argued the earlier summary judgment barred Taranto from prosecuting his amended complaint based on principles of collateral estoppel and res judicata. Defendant asserted it was a school within and operated by Whittier College, did not transact business for itself, and had no business operations separate from the college.

Taranto moved to strike the demurrer. He argued it was untimely because it was filed more than 30 days after service of the complaint. He also argued Whittier was in default, and that the court’s written summary judgment order was void because he had (prematurely) appealed the summary judgment decision on February 3, 2004.[2] He also asserted defendant had not supplied affidavits to support its contention it was one and the same as Whittier College, that state records reflected the law school and college were separate corporations, and “[n]o motion of intervention was made, so Whittier College has not adjudicated the facts and actions as to Whittier Law School.”

On July 8, the court by minute order denied Taranto’s motion to strike as untimely and sustained defendant’s demurrer without leave to amend. The court’s minute order provided, “Plaintiff’s attempted amendment to the Complaint amounts to nothing more than refiling the same Complaint against Whittier College/Whittier Law School, who are one and the same. As the Plaintiff’s claims against them have already been in this case on the merits via Summary Judgment . . . the Plaintiff’s claims are barred by res judicata.”

Taranto moved to reconsider the orders striking his motion and sustaining the demurrer. The court denied the motion on August 19. The court filed a written order on the demurrer and entered judgment on September 22. On November 23, Taranto noticed an appeal from the July 8 and August 19 rulings.

B. The Trial Court Did Not Err in Sustaining Whittier’s Demurrer Without Leave to Amend

Taranto contends the trial court erred in sustaining Whittier’s demurrer, and offers a host of arguments lacking coherence and therefore difficult to discern. We summarize below Taranto’s arguments as we understand them. Considering those arguments and based on our independent review of the record, we conclude the trial court did not err in sustaining the demurrer and dismissing Taranto’s lawsuit against Whittier.

A demurrer tests the legal sufficiency of the complaint. Consequently, we review the complaint de novo to determine whether it contains sufficient facts to state a cause of action. (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420.) The demurrer admits all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law. We also consider matters judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Ibid.) The trial court exercises its discretion in determining whether to grant leave to amend a legally deficient complaint. (Ibid.) The trial court abuses its discretion if it is reasonably possible an amendment can cure the pleading. (Ibid.) The burden rests “squarely on the plaintiff” to prove the possibility an amendment will cure the defect. (Ibid.)

Code of Civil Procedure section 474 provides that “[w]hen the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly . . . .” Practitioners often learn of new potential defendants after filing the action, but if the statute of limitations has run, plaintiff may not add them as parties to the lawsuit. To remedy this potential problem, under section 474 practitioners routinely include fictitious names or “Doe” defendants in the original complaint. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2006) 6:79, p. 6-21 (rev. #1, 2006).) But the plaintiff must have been “genuinely ignorant” of the defendant’s identity or the facts rendering the defendant liable when the original complaint was filed, and not use the amendment procedure merely as a subterfuge for avoiding the requirements of section 474. (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 177; Taito v. Owens Corning (1992) 7 Cal.App.4th 798, 802.) When the plaintiff seeks to substitute a real defendant for one sued fictitiously, “the relevant inquiry is what the plaintiff knew or, through the exercise of due diligence, reasonably could have discovered at an earlier date.” (General Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 588, original italics.) Ignorance in this context means that the plaintiff was unaware of the defendant’s connection with the case or with the plaintiff’s injuries, even if the plaintiff knew of the existence of the defendant or knew its name. (Ibid.)

Here, Taranto knew of the facts giving rise to a cause of action and the entity allegedly responsible for his injuries. Indeed, he named “Whittier Law School” in his original complaint before amending his pleading to name Whittier College. Taranto was not “genuinely ignorant” of defendant’s true name or identity and therefore his effort to bring the case within Code of Civil Procedure section 474 fails. (Scherer v. Mark (1976) 64 Cal.App.3d 834).

The Doe amendment fails for another reason. The first amended complaint contains a paragraph declaring that Taranto was ignorant of the true names of Does 1-100 and “therefore sues these defendants by such fictitious names,” but contains no substantive allegations against Doe 1. Nowhere does Taranto allege Doe 1, and therefore “Whittier Law School,” committed a wrong or caused him harm. (See Schroeter v. Lowers (1968) 260 Cal.App.2d 695, 701 [plaintiffs moved to amend to substitute a new defendant for Doe 1 with a supporting affidavit explaining why they sought to add a new party, but the amendment proved futile because the original complaint contained no allegations of negligence on the part of a Doe].) Thus, the amended complaint failed to state a cause of action against Doe 1/Whittier Law School.

Finally, Taranto failed to meet his burden of proving a reasonable possibility he could cure the defects by amending the complaint. Collateral estoppel applies to later litigation to give conclusive effect to issues determined in a former proceeding. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 701-702.) Collateral estoppel or issue preclusion is a part of the doctrine of res judicata. (Bame v. City of Del Mar (2001) 86 Cal.App.4th 1346, 1363.) A prior determination bars prosecution of a new action when “(1) the issue is identical to that decided in a former proceeding; (2) the issue was actually litigated and (3) necessarily decided; (4) the doctrine is asserted against a party to the former action or one who was in privity with such a party; and (5) the former decision is final and was made on the merits.”[3] (Silver v. Los Angeles County Metropolitan Transportation Authority (2000) 79 Cal.App.4th 338, 357; Campbell v. Scripps Bank (2000) 78 Cal.App.4th 1328, 1334.) Collateral estoppel is subject to general demurrer where the elements appear in the facts pleaded in the complaint or where sufficient information to support the defense is properly judicially noticed. (Frommhagen v. Board of Supervisors (1987) 197 Cal.App.3d 1292, 1299; Lazzarone v. Bank of America (1986) 181 Cal.App.3d 581, 590.)

Here, the trial court properly took judicial notice of its own court records (original and amended complaints, order granting summary judgment, judgment, Doe amendment, and request for entry of default judgment) in determining whether the prior summary judgment in favor of Whittier College supported its conclusion the principle of collateral estoppel barred Taranto’s lawsuit against “Whittier Law School.” (Evid. Code, § 452, subd. (d); Barker v. Hull (1987) 191 Cal.App.3d 221, 224 [motion for judgment on the pleadings; prior action as basis for collateral estoppel].) The record reveals Taranto raised the identical issues in his lawsuit against “Whittier College,” and these issues were litigated fully when the trial court granted Whittier’s summary judgment on the merits. Taranto made no showing that his proposed action against Whittier Law School was anything other than a duplication of his claims against Whittier College.

None of Taranto’s specific claims call for a different result. He contends the trial court should have granted his motion to strike because the demurrer was untimely. The court rejected Taranto’s argument because the record demonstrated Taranto simply amended the complaint to add a party who “was previously named, was served and who obtained a summary judgment in its favor.

Simply amending to rename them as a Doe does not defeat the summary judgment.” True, the trial court may in its discretion strike an untimely demurrer and enter a default judgment. (Buck v. Morrossis (1952) 114 Cal.App.2d 461, 464.) But “there is no absolute right to have a pleading stricken for lack of timeliness in filing where no question of jurisdiction is involved and where . . . the late filing was a mere irregularity.” (Tuck v. Thuesen (1970) 10 Cal.App.3d 193, 196, disapproved on other grounds in Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 190.) Here, the trial court could reasonably conclude Taranto should not prevail on a minor procedural point when his lawsuit was barred by collateral estoppel. We discern no abuse of discretion.

Taranto also argues res judicata/collateral estoppel “Do Not Apply” because his earlier appeal divested the trial court of jurisdiction to rule on the summary judgment. The trial court rejected this argument, noting it granted the motion on January 8 and filed its written order on February 3. According to superior court computer records, Taranto filed his notice of appeal on the same day, but after the written order had been filed. This court dismissed Taranto’s premature appeal from the written order (G033494) on March 2, 2004, because no judgment had been entered. The court filed its judgment on March 11, 2004. Thus, we perceive no irregularities requiring reversal of the judgment.

Taranto also appears to complain Whittier Law School did not support its “averments.” We assume he is referring to Whittier Law School’s allegation it was a school within and operated by Whittier College, did not transact business for itself, and had no business operations separate from the college. He also argues the Doe substitution was proper because he was “misle[]d [b]y [d]efendants [a]s [t]o [s]tatus [o]f Whittier College.” He asserts “[t]he companies are not the same and any [r]es [j]udicata only applied to Whittier College.”

Defensive use of collateral estoppel precludes a plaintiff from relitigating identical issues by switching adversaries. (Imen v. Glassford (1988) 201 Cal.App.3d 898; Bernhard v. Bank of America (1942) 19 Cal.2d 807, 813.) Whittier College did not obtain judgment on the basis Taranto had sued the wrong party; as noted above, the college tackled his complaints on the merits and the court ordered summary judgment because Taranto failed to exhaust administrative remedies and failed to present an issue of fact refuting Whittier’s showing it had a legitimate, nondiscriminatory reason to expel Taranto.

Taranto makes several statements related to the action against the O’Neil defendants, which have nothing to do with this appeal (see part II, post). Finally, to the extent we fail to respond to any issue Taranto intended to raise, it is because his point was unclear, not separately identified by heading or subheading, unsupported by argument or authority, or raised for the first time in the reply brief and is, accordingly, deemed waived. (Cal. Rules of Court, rule 14(a)(1)(B); Williams v. City of Belvedere (1999) 72 Cal.App.4th 84, 92, fn. 2.)

II

Claims Against O’Neil

A. Procedural Background

Taranto’s amended complaint alleged O’Neil was a Marina Del Rey stock brokerage firm that interviewed Taranto for a job, apparently in May 2001. Taranto obliquely asserted O’Neil intentionally caused him emotional distress and wrongfully denied him employment under the Unruh Act (Civ. Code, § 51 et seq.) and the Fair Employment and Housing Act (FEHA; Gov. Code, § 12940 et seq.) based on a perceived mental disability stemming in part from a personality profile test.

After our remittitur issued in the first appeal (G030731), the trial court vacated the judgment in favor of O’Neil. At a status conference in September 2003, the court set a trial date of February 9, 2004. That date was vacated on February 5, apparently because Taranto intended to “file Doe amendments naming new parties.” At this point, O’Neil was the only remaining named defendant. At an April status conference, the court ordered Taranto to deliver certain documents to defendant’s lawyers or suffer dismissal, and set a new trial date of September 27, 2004.

Taranto substituted O’Neil Data Systems, Inc. (O’Neil Data) into the action for a Doe and took its default in May 2004. In September, the court vacated entry of the default and deemed its answer filed and served.

The trial was trailed to October 25. On that day, the court continued the matter at Taranto’s request to November 22. The case was assigned to Judge Makino, and he granted Taranto’s motion to continue and set a January 24, 2005 trial date.

On January 14, the court struck the jury demand. On January 24, the day set for a bench trial on Taranto’s claims, the court denied Taranto’s request for a further continuance. When Taranto informed the court he had no witnesses or documentary evidence to present, the court granted defendants’ motion for judgment. (Code Civ. Proc., § 631.8.) The court filed its judgment February 7, 2005. In April 2005, the court denied Taranto’s motions for new trial and to vacate the judgment.[4]

B. The Trial Court Did Not Err in Rendering Judgment for the O’Neil Defendants

Taranto argues[5] the court “erred as a matter of law by denying motion to strike defendants willful disregarding of lawful process.” (Original italics omitted.) He references orders dated July 8 and August 19, 2004. Like much of his brief, these orders relate to the action against Whittier. They do not concern the appeal from the O’Neil judgment.

Taranto also states the “documents that O’Neil produced at the deposition” “are suspect on the face” and the “numbering systems are indicative of dates but those dates do not match dates of interview.” Taranto fails to identify any ruling or error relating to this argument; therefore, this contention fails.

Taranto also argues the court erred by denying a continuance. He lists the following facts supporting a continuance: a police report of an entry into his home, a prescription for treating a rash from toxic substances on business records, bank checks had been mysteriously removed from his home, altered, and replaced “with design and purpose,” a phone company record-keeper insisted on a stipulation limiting discovery, and hackers regularly hacked into his phones and servers and billed strange calls to him. He also asserts he suffered “unusual economic hardships“ and the telephone company misled him that it would produce phone records without a court order. He claims the “evidence sought was needed to weight [sic] the apparent fraud, spoliation and Misrepresentations by O’Neil Data . . . at the deposition.”

A continuance before trial is disfavored and will not be granted except on an affirmative showing of good cause. (Cal. Rules of Court, rule 375; County of San Bernardino v. Doria Mining & Engineering Corp. (1977) 72 Cal.App.3d 776, 781 [continuances should be granted sparingly on a proper showing of good cause]; cf. Pham v. Nguyen (1997) 54 Cal.App.4th 11.) “The factors that influence the granting or denying of a continuance in any particular case are so varied that the trial judge must necessarily exercise a broad discretion.” (7 Witkin, Cal. Procedure (4th ed. 1996) Trial, §10, p. 36.)

The record reflects the court reset the trial date several times at Taranto’s behest, from the original date of February 9, 2004, to January 24, 2005. Taranto has not supplied us with a reporter’s transcript from the ruling denying a further continuance. We have no record when many of the events described by Taranto occurred or whether and how they related to his failure to present any evidence at trial. Taranto fails to explain how his telephone records related to any deposition or how this impacted his claims against O’Neil. From the record provided, we cannot say the court abused its wide discretion by denying a further continuance.

Taranto next argues the court erred by ordering his motion to compel responses to interrogatories off calendar. But the minute order he refers to, dated February 5, 2004, reflects the court granted his motions to compel further responses to form and special interrogatories and gave defendant (William O’Neil) 20 days to respond. The court also noted “counsel [plaintiff] to file Doe amendments naming new parties” and ordered “[d]iscovery . . . reopened as to new parties based on time statutes.” Taranto has not directed us to any error or abuse of discretion.

III

Disposition

Judgments affirmed. Defendants are entitled to their costs.

ARONSON, J.

WE CONCUR:

SILLS, P. J.

RYLAARSDAM, J.

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[1] Stride extricated itself from Taranto’s lawsuit when the trial court granted its demurrer without leave to amend. We affirmed this order in an earlier appeal. (Taranto v. Stride & Associate, Inc. (May 20, 2003, G030731) [nonpub. opn.].)

[2] Taranto filed a second notice of appeal from the summary judgment on April 7. This court ultimately affirmed the judgment in an opinion filed November 23, 2004.

[3] Although the summary judgment was not final at the time the court ruled on the demurrer, there was sufficient finality to invoke preclusion. “‘[T]o hold invariably that [issue preclusion] is not to be permitted until a final judgment in the strict sense has been reached in the first action can involve hardship[, including] needless duplication of effort and expense in the second action to decide the same issue . . . .’” (Sandoval v. Superior Court (1983) 140 Cal.App.3d 932, 936.)

[4] Taranto’s unopposed motion to augment the appellate record filed May 2, 2006, is granted. All documents filed or lodged in the superior court that are contained in the three volumes accompanying Taranto’s motion are deemed part of the record on appeal.

[5] Again, Taranto’s arguments are difficult to decipher, but we have endeavored to distill and summarize his legal contentions as we understand them.