Oliver v. North Star Security Services

Filed 9/28/06 Oliver v. North Star Security Services CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Barbara Oliver appeals the judgment dismissing her complaint following the sustaining of a demurrer without leave to amend in favor of respondent North Star Security Services, Inc. (North Star). We affirm.

I. FACTS

In 2003, Oliver, acting in pro. per., filed a complaint against North Star, Akbar Jones, and another defendant. The complaint alleged the wrongful termination of Oliver by North Star as the result of a strong-arm robbery by Akbar Jones, also an employee of North Star.

North Star demurred and moved to strike the complaint. Oliver failed to file any papers in opposition to the demurrer. The court sustained defendant’s demurrer and motion to strike with leave to amend within 20 days of the filing of the order, or by May 19, 2004. The court informed Oliver that she was required to file an amended complaint within those 20 days if she wished to continue with the case. Oliver filed an amended complaint on September 7, 2004.

Again, North Star demurred and moved to strike. Oliver again failed to file any opposition. The court sustained the demurrer and motion to strike the amended complaint with leave to amend the complaint within 60 days. Oliver filed a second amended complaint on January 31, 2005.

On February 22, 2005, North Star filed a third demurrer and motion to strike the second amended complaint, again with no opposition forthcoming. This time the court sustained defendant’s demurrer without leave to amend and dismissed the complaint. Oliver appeals the judgment of the dismissal.

II. DISCUSSION

Oliver contends that since she has acted in pro. per. throughout the duration of this case, the court should be more lenient toward her and afford her another opportunity to fix the mistakes that have prevented this case from moving forward in the trial court. This argument is without merit. A person has the right to represent oneself and act as his or her own attorney during litigation. (Baba v. Board of Supervisors (2004) 124 Cal.App.4th 504, 552-523.) However, any person acting as his or her own attorney is held to the same rules of procedure as is required of those individuals who are qualified to practice law. (Doran v. Dreyer (1956) 143 Cal.App.2d 289, 290.) It is not the responsibility of the courts to reward ignorance. (Ibid.) Therefore, a person who chooses to represent oneself must receive the same treatment as would be expected if represented by an attorney. (Dowden v. Superior Court (1999) 73 Cal.App.4th 126, 129-130.) While it may prove more difficult for Oliver to proceed with the case in pro. per., the law prohibits special treatment in such a case.

A review of this case demonstrates that the trial court properly dismissed the complaint.^[1] First, Oliver has failed to satisfy the burden attributed to reviewing the sufficiency of a complaint against a demurrer and motion to strike. When a trial court sustains a demurrer without leave to amend, we determine whether the complaint states facts sufficient to constitute a cause of action, and if not, whether there is a reasonable probability that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) If the complaint can be amended, the trial court has abused its discretion and the appellate court will reverse. (Ibid.) If the complaint cannot be amended, there has been no abuse and the appellate court will affirm the decision. (Ibid.) However, the burden of proving that the trial court erred rests squarely on the plaintiff. (Ibid.)

In order to establish that the cause of action is adequately pleaded, the plaintiff must show that he or she pleaded facts sufficient to establish every element of that cause of action. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879.) To show the possibility of success for amendment, the plaintiff must set forth the allegations that will cure the defect. (Blank v. Kirwan, supra, 39 Cal.3d at pp. 318-319.) Here, Oliver devotes most of the discussion of her opening brief to the existence of the covenant of good faith and fair dealing in employment contracts. The document briefly addresses the issue of the dismissal of the second amended complaint, but does not offer any support in proving that her allegations were sufficient or could have been augmented to state a cause of action. Oliver’s reply brief addresses the fact that the court sustained the defendant’s demurrer and that the document may be lacking important information, but this brief also offers no support for the argument that the court abused its discretion in dismissing the complaint. No cognizable argument is found in either brief to support the argument that the trial court abused its discretion. Thus, Oliver has not satisfied her burden on appeal.

Finally, the trial court did not abuse its discretion in sustaining the demurrer and dismissing Oliver’s complaint. A court is authorized to make rules for its own governance to the extent that they do not conflict with existing law or the California Rules of Court. (Hall v. Superior Court (2005) 133 Cal.App.4th 908, 916.) North Star argues that the San Francisco Superior Court has adopted courtroom policies allowing the court to forbear reviewing the demurrer or motion to strike in the absence of opposition, and simply sustain the pleading.^[2] Here, Oliver failed to file any papers in opposition to the three separate demurrers and motions to strike filed by North Star. Although Oliver was acting in pro. per. and may not initially have been aware of the necessary requirements, the trial court clearly informed her of its requirement to file an opposition on two occasions. No papers were filed in opposition to the defendant’s demurrer and Oliver has shown no legal basis for reversal.

III. DISPOSITION

The judgment is affirmed.

_________________________

Reardon, Acting P.J.

We concur:

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Sepulveda, J.

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Rivera, J.

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^[1] We note that Oliver has failed to comply with the rules concerning brief preparation. However, we have ignored this noncompliance in favor of resolving the case on appeal, pursuant to California Rules of Court, rule 14(e)(2)(C).

^[2] The reporter’s transcript--in particular, the court’s comments--corroborates the existence of the requirement to file an opposition. North Star has quoted the policy in its brief but has not provided us with a citation or a copy of the policy by way of judicial notice. The policy does not appear in the local rules of court.