Montgomery v. Los Angeles County CA2/7 ( 2014 )

Filed 2/19/14 Montgomery v. Los Angeles County CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SEVEN
GERALD MONTGOMERY, B244168
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC481718)
v.
LOS ANGELES COUNTY et al.,
Defendants and Respondents.
Appeal from orders of the Superior Court of Los Angeles County, Charles F.
Palmer, Judge. Affirmed as to Los Angeles County. Appeal dismissed as to Wal-Mart
Stores, Inc.
Gerald Montgomery, in pro. per., Plaintiff and Appellant.
Pettit Kohn Ingrassia & Lutz, Valerie Garcia Hong, Jenna H. Leyton-Jones,
Lauren E. Schue, for Defendant and Respondent Wal-Mart Stores, Inc.
Nelson & Fulton, Henry Patrick Nelson and Rina Mathevosian, for Defendant and
Respondent, Los Angeles County.
_____________
Gerald Montgomery appeals from an order dismissing his lawsuit against Los
Angeles County after the court sustained the County’s demurrer to his complaint with
leave to amend and Montgomery failed to file an amended complaint within the court-
ordered 15-day period. Montgomery also purports to appeal from an order denying his
request for entry of default against Wal-Mart Stores, Inc. We affirm the order dismissing
the action against the County. We dismiss the appeal from the order denying
Montgomery’s request for entry of default for lack of an appealable order.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Complaint
On March 29, 2012 Montgomery filed a form complaint against the County and
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Wal-Mart, as well as several of their respective employees, alleging claims for civil
rights violations, negligence and fraud arising out of an incident in which he was
apparently arrested for shoplifting items from a Wal-Mart store. Although far from clear,
the complaint appears to allege a sheriff’s deputy filed a fictitious police report and
tampered with evidence. It also alleges Wal-Mart negligently supervised its employee,
causing Montgomery to suffer damages.
2. The County’s Demurrer
On April 17, 2012 the County demurred to the complaint on the ground it was
uncertain, ambiguous, unintelligible, failed to identify a statute authorizing a claim for
liability against a public entity and failed to state a cause of action. On September 10,
2012 the court sustained the County’s demurrer and gave Montgomery 15 days leave to
file an amended complaint. Notice of ruling was mailed to Montgomery on
September 10, 2012.
1 In addition to the County and Wal-Mart, the complaint named the Los Angeles
County Sheriff’s Department, Los Angeles County Sheriff Lee Baca, Los Angeles
County Sheriff’s Deputy Joshua Whiting, Kelly Robbins and Steven Gay. Only the
County and Wal-Mart have appeared in the action.
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3. Montgomery’s Request for Entry of Default Against Wal-Mart
On June 20, 2012 Montgomery apparently filed a request to enter a default against
Wal-Mart, which had not yet appeared or responded to the complaint. The request was
rejected by the clerk as deficient because the statement of damages did not indicate the
name of the defendant served. Wal-Mart demurred to the complaint the next day,
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asserting many of the same grounds presented by the County in its earlier demurrer.
On September 11, 2012 Montgomery filed a document entitled motion seeking
entry of default and a default judgment against Wal-Mart, arguing default was required
because Wal-Mart had demurred long after the 30-day time period for filing a responsive
pleading. On September 21, 2012, following a telephonic hearing, the court denied the
request for entry of default. The court ruled the motion lacked sufficient notice pursuant
to Code of Civil Procedure section 1005, subdivision (b), failed to include a proof of
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service and lacked any substantive merit.
4. The County’s Request for Dismissal
On October 10, 2012 the County filed an ex parte application for dismissal
pursuant to Code of Civil Procedure section 581, subdivision (f)(2), on the ground
Montgomery had failed to file an amended complaint within the time period ordered by
the court. Montgomery, who had been given notice of the ex parte proceeding on
October 2, 2012, appeared for the October 10, 2012 hearing. The trial court granted the
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County’s ex parte application and dismissed the action.
2 Wal-Mart maintained it had not been served with the summons and complaint, but
elected to appear and file a responsive pleading as soon as it learned about the case.
3 The court also ruled, erroneously, that, in light of the County’s demurrer sustained
on September 10, 2012, there was no operative pleading against Wal-Mart. In fact, the
court had not yet ruled on Wal-Mart’s demurrer. On September 21, 2012 Montgomery
filed a notice of appeal from the court’s order denying his request for entry of Wal-Mart’s
default.
4 On October 11, 2012 Montgomery filed a timely notice of appeal from the court’s
written order of dismissal.
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5. The Trial Court’s Ruling on Wal-Mart’s Demurrer
On December 4, 2012 the court sustained Wal-Mart’s demurrer with leave to
amend. On February 5, 2013 the trial court stayed further proceedings in the matter
pending resolution of the instant appeal.
DISCUSSION
1. Montgomery Has Not Demonstrated the Court Erred in Granting the County’s
Request for Dismissal
Code of Civil Procedure section 581, subdivision (f)(2), authorizes the court to
dismiss a complaint after a demurrer has been “sustained with leave to amend, the
plaintiff fails to amend it within the time allowed by the court and either party moves for
dismissal.” The dismissal may be requested and granted in ex parte proceedings. (See
Cal. Rules of Court, rule 3.1320(h) [“[a] motion to dismiss the entire action and for entry
of judgment after expiration of the time to amend following the sustaining of a demurrer
may be made by ex parte application to the court under Code of Civil Procedure
section 581(f)(2)”]; Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 789;
Cano v. Glover (2006) 143 Cal.App.4th 326, 329-330.)
Montgomery does not challenge the court’s order sustaining the demurrer with
leave to amend, nor does he offer any substantive argument or authority challenging the
dismissal of the action against the County. Accordingly, he has forfeited any challenge to
the propriety of the order of dismissal. (See Cal. Rules of Court, rule 8.204(a)(1)(B);
Kaufman v. Goldman (2011) 195 Cal.App.4th 734, 743 [appellate court may treat as
forfeited any argument not “supported by both coherent argument and pertinent legal
authority”].) Moreover, it is clear from the record the dismissal of the action was
statutorily authorized. (Code Civ. Proc., § 581, subd. (f)(2); Cano v. Glover, supra,
143 Cal.App.4th at pp. 329-330.)
2. The Order Denying Montgomery’s Request for Entry of Default and Default
Judgment Against Wal-Mart Is Not an Appealable Order
The existence of an appealable judgment or order is a jurisdictional prerequisite to
an appeal. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126; Olson v. Cory (1983)
35 Cal.3d 390, 398.) Here, Montgomery’s case remains pending against Wal-Mart in the
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trial court. The denial of a request to enter a default or default judgment is not among the
statutorily designated interlocutory orders that may be appealed (see Code Civ. Proc.,
§ 904.1, subd. (a)), nor is the denial of a request for entry of default in this case
tantamount to a final judgment. (See Lyon v. Goss (1942) 19 Cal.2d 659, 669-670 [“it
may be said that where no issue is left for future consideration except the fact of
compliance or noncompliance with the terms of the first decree, that decree is final, but
where anything further in the nature of judicial action on the part of the court is essential
to a final determination of the rights of the parties, the decree is interlocutory”]; Belio v.
Panorama Optics, Inc. (1995) 33 Cal.App.4th 1096, 1101-1102; see generally Sullivan v.
Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 304 [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”’”].)
The appeal from the September 21, 2012 order must be dismissed. (Griset v. Fair
Political Practices Com. (2001) 25 Cal.4th 688, 696-697.)
DISPOSITION
The October 10, 2012 order of dismissal in favor of the County is affirmed.
Montgomery’s appeal from the court’s September 21, 2012 order denying his request for
entry of default and default judgment against Wal-Mart is dismissed.
PERLUSS, P. J.
We concur:
WOODS, J. SEGAL, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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