DiGiacomo v. City and County of San Francisco CA1/1 ( 2022 )

Filed 8/26/22 DiGiacomo v. City and County of San Francisco CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
RAYMOND VINCENT
DIGIACOMO, JR.,
A162435
Plaintiff and Appellant,
v. (San Francisco City & County
CITY AND COUNTY OF SAN Super. Ct. No. CGC-20-582891)
FRANCISCO,
Defendant and Respondent.
Plaintiff Raymond Vincent DiGiacomo, Jr., filed a complaint with the
City and County of San Francisco (the City) about his alleged mistreatment
by two San Francisco Superior Court employees when he attempted to file
documents at the court. The City denied his claim on the grounds the City
had no liability for conduct of superior court employees and informed plaintiff
he should direct his claim to the superior court. Plaintiff sued the City
anyway, and after the Judicial Council reassigned his case to the Alameda
County Superior Court, the trial court sustained the City’s demurrer to
plaintiff’s complaint without leave to amend.
Plaintiff’s appeal (1) challenges the trial court’s order sustaining the
demurrer and denying his motion to strike the demurrer, (2) asserts the trial
court improperly rejected his peremptory challenge to the judicial officer
assigned for all purposes as untimely, (3) contends the trial court failed to
prevent discrimination against him, and (4) asserts he was entitled to a court
reporter at the hearing on the City’s demurrer. We reject all of plaintiff’s
challenges and affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On August 5, 2019, plaintiff filed the City’s government claim form
(claim form) complaining about his interactions with San Francisco Superior
Court employees that took place on July 22, 2019. Plaintiff’s claim form
included a four-page attachment detailing his interactions with two clerks at
the superior court. He asserts one clerk “flipped through [his] documents and
then, within seconds, immediately began exhibiting verbally abusive
behavior toward [him] which was both inappropriate and highly egregious.”
The clerk also became “very angry” and was “extremely upset” with plaintiff
for failing to include certain information in his filing, and “belittled [him] . . .
in a highly disrespectful tone” for including a certified mail request form.
Plaintiff alleged the employee “displayed several instances of inappropriate
vocal tones, pitches and levels, as well as unduly demeaning facial gestures
in addition to highly abrupt and threatening body movements as he walked
to and from his filing cabinets.” After plaintiff made some modifications to
his filing, he returned to the service window where he encountered a second
clerk. Plaintiff alleged the second clerk “also exhibited disrespectful and
snide behaviors toward [him] when [the clerk] asked [plaintiff] in an
unusually and surprisingly degrading tone, ‘Is this the correct address of the
person you are planning to serve, or do you even know?’ ”
Plaintiff asserted the City “has exhibited elements of negligence by
placing the two employees in question into ‘customer-facing’ and ‘teaching-
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oriented roles’ ” and the City was “actively enabling a systemic culture of
hostility, harassment and poor service quality” by allowing the clerks to
remain in their roles. Plaintiff sought a total of $183.65 as compensation for
his treatment.
The City denied plaintiff’s claim on August 12, 2019, with a letter
stating that “[a]n investigation of your claim filed with the City and County
of San Francisco has revealed no indication of liability on the part of the City
and County.” The City’s denial directed plaintiff to refer his claim to the San
Francisco Superior Court, and provided the address and phone number for
the court.
On February 13, 2020, plaintiff filed a complaint against the City in
superior court. Plaintiff alleged three causes of action against the City for
negligence, negligent selection, and negligent infliction of emotional distress
and sought injunctive relief compelling the superior court to, among other
things, require clerks to attend “formal customer service and sensitivity
training courses on a reasonably frequent basis.”
The City filed a demurrer on August 4, 2020, with a hearing set for
September 3. The City demurred on the ground that plaintiff failed to state a
cause of action because the City was not a proper party, as the City is a
separate public entity from the San Francisco Superior Court and does not
own or control the superior court or its employees.
Plaintiff did not file an opposition to the demurrer. Instead, he filed a
motion to strike the City’s demurrer on August 20, 2020, setting the hearing
for the same day as the demurrer, September 3. Plaintiff’s motion to strike
asserted the City’s demurrer “exhibits bias or prejudice based on one’s
socioeconomic status or disability,” and was “thus in violation of Uniform
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Local Rule of Court 2.6(A), and thus subject to strike pursuant to [Code of
Civil Procedure section] 436 [subdivision,] (b).”
On September 3, 2020, the San Francisco Superior Court recused itself.
On September 18, 2020, the Alameda County Superior Court assigned the
case to Judge Stephen Pulido for all purposes. The trial court issued a
tentative ruling and held a hearing on the demurrer on October 29, 2020.
On January 27, 2021, the trial court issued an order sustaining the
demurrer without leave to amend. The court concluded the City had “met its
burden of establishing through facts subject to judicial notice that the
Superior Court is not a department of Defendant or otherwise related to
Defendant.” The trial court also denied plaintiff’s motion to strike the City’s
demurrer as untimely. The court observed that “[p]laintiff’s motion may not
be made with his opposition but must instead be separately noticed” and filed
at least 16 court days before the court hearing. Plaintiff had filed his motion
to strike on August 20, 2020, only 10 court days before the September 3
hearing. Finally, the court denied plaintiff leave to file a first amended
complaint, noting that “[a]lthough courts apply a liberal standard when
deciding whether to permit a party to [amend] its pleadings,” plaintiff could
not show he could amend to “state a cause of action against the City and
County of San Francisco because his claims are against employees of the [San
Francisco Superior Court].” The court ordered plaintiff’s complaint dismissed
with prejudice. Plaintiff appealed.1
1 Although “[a]n order sustaining a demurrer without leave to amend is
not appealable,” an “appeal is proper . . . after entry of a dismissal on such an
order.” (Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386,
1396; Code Civ. Proc., § 581d [a written order of dismissal is a judgment for
all purposes when filed].)
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II.
DISCUSSION
A. Challenges to the Judge
Plaintiff’s opening brief asserts that at the beginning of the hearing on
the demurrer, he moved “to orally . . . disqualify” the trial court judge under
Code of Civil Procedure2 sections 170.6, subdivision (a)(2) and 170.1,
subdivision (a)(7) after reading “the discriminatory, denigrating, and victim-
shaming commentary within said trial court judge’s tentative ruling.”
Plaintiff claims his “reasoning for this was several-fold,” and was based on
both legal error and “unusually disheveled grammar” in the court’s tentative
ruling.
Plaintiff’s claim is not cognizable on appeal because “[t]he
determination of the question of the disqualification of a judge is not an
appealable order and may be reviewed only by a writ of mandate from the
appropriate court of appeal sought only by the parties to the proceeding. The
petition for the writ shall be filed and served within 10 days after service of
written notice of the entry of the court’s order determining the question of
disqualification.” (§ 170.3, subd. (d); see also People v. Hull (1991) 1 Cal.4th
266, 269–276 [§ 170.3, subd. (d) prescribes the exclusive means of appellate
review of unsuccessful for cause and peremptory challenges].) Plaintiff points
us to no evidence in the record indicating that an oral disqualification motion
occurred, on what grounds it was made, or that the trial court denied it.3
2All undesignated statutory references are to the Code of Civil
Procedure.
3 This is another ground for rejection of his claim. (See, e.g., Hernandez
v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502
[“Failure to provide an adequate record on an issue requires that the issue be
resolved against plaintiff.”].) We recognize plaintiff’s argument that the trial
court improperly failed to provide a court reporter at the demurrer hearing
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Even assuming that the motion was made and denied at the October 29, 2020
hearing, however, we cannot review it on appeal from the judgment because a
timely writ of mandate is the exclusive means by which a party may seek
review of an unsuccessful disqualification challenge.4
B. Demurrer
A demurrer tests the legal sufficiency of the factual allegations in a
complaint. We independently review the sustaining of a demurrer and
determine de novo whether the complaint alleges facts sufficient to state a
cause of action under any legal theory. (McCall v. PacifiCare of Cal., Inc.
(2001) 25 Cal.4th 412, 415.) “In determining whether plaintiffs properly
stated a claim for relief, our standard of review is clear: ‘ “We treat the
and address that claim below. As we note below, when no reporter’s
transcript is available, an appellant may submit an agreed or settled
statement. (Cal. Rules of Court, rules 8.130(h), 8.134, 8.137.)
4 In any event, plaintiff’s arguments lack substantive merit. It is
undisputed that the Alameda County Superior Court issued an assignment
for all purposes on September 18, 2020, which informed plaintiff he was
required to timely exercise any peremptory challenge under the law.
Although as a “general rule” a motion for disqualification is allowed any time
before the commencement of a trial or hearing, subdivision (a)(2) of
section 170.6 establishes several exceptions that impose shorter deadlines.
(Maas v. Superior Court (2016) 1 Cal.5th 962, 978; Bontilao v. Superior Court
(2019) 37 Cal.App.5th 980, 990.) Here, because the “assignment for all
purposes” civil exception to the general rule applied, plaintiff was required to
file his peremptory challenge within 15 days of the assignment. (§ 170.6,
subd. (a)(2).) Because the notice was served by mail, plaintiff had five
additional days under section 1013, meaning he had to move to disqualify the
judge on or before October 8, 2020. Plaintiff concedes he did not do so until
the beginning of the hearing on October 29, 2020. Furthermore, plaintiff’s
alleged motion to disqualify the judge based on a “permanent or temporary
physical impairment” under section 170.1, subdivision (a)(7) lacks merit
because the tentative ruling does not provide any evidence the judge was
suffering from such an impairment as plaintiff argues in his appellate brief.
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demurrer as admitting all material facts properly pleaded, but not
contentions, deductions or conclusions of fact or law. [Citation.] We also
consider matters which may be judicially noticed.” [Citation.] Further, we
give the complaint a reasonable interpretation, reading it as a whole and its
parts in their context. [Citation.] When a demurrer is sustained, we
determine whether the complaint states facts sufficient to constitute a cause
of action. [Citation.] And when it is sustained without leave to amend, we
decide whether there is a reasonable possibility that the defect can be cured
by amendment: if it can be, the trial court has abused its discretion and we
reverse; if not, there has been no abuse of discretion, and we affirm.
[Citations.] The burden of proving such reasonable possibility is squarely on
the plaintiff.’ ” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)
Plaintiff argues the trial court erred in sustaining the City’s demurrer
because the City did not establish that the City, the State of California, and
the superior court “are all completely unrelated entities.”
The trial court sustained the demurrer on the basis that the City had
established “through facts subject to judicial notice that the Superior Court is
not a department of Defendant or otherwise related to Defendant.” Plaintiff
has not shown this was error. As Division Five of this court explained in
Obbard v. State Bar of California (2020) 48 Cal.App.5th 345, 350, “The
presiding judge of each superior court is a state officer (Cal. Const., art. VI,
§ 16), who controls the hiring, firing, and supervision of superior court
employees, or delegates those duties to the court’s executive officer. (Cal.
Rules of Court, rules 10.603(c)(5), 10.610(a) and (c)(1).) The superior court is
part of the state judicial branch (Cal. Const., art. VI, §§ 1, 4), administered
by the state Judicial Council (id., § 6), and funded through the state budget
process. (See Gov. Code, § 68502.5.)” Superior court employees’ salaries are
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“part of the superior court’s operations costs, for which the state is
responsible.” (See Obbard, at p. 350; see also Orange County Employees
Assn., Inc. v. Superior Court (2004) 120 Cal.App.4th 287, 293 [following
passage of the Trial Court Employment Protection and Governance Act (Gov.
Code, § 71600 et seq.), trial court employees are employees of the trial court,
not their respective counties]; Jones v. County of Los Angeles (2002)
99 Cal.App.4th 1039, 1045 [“ ‘[A] superior court is not a subagency of a
county. Rather, it is a separate branch of government.’ ”].)
Plaintiff also argues that the trial court improperly dismissed his
complaint because it dismissed the complaint not only as to the City, but also
as to the “Doe” defendants. However, plaintiff does not show he attempted to
make any “Doe” substitutions. Plaintiff states in his opening brief on appeal
that “as a hypothetical example” (italics added) he could have “swapped in
either the State of California, or labor union SEIU 1021,” but cites no
evidence he attempted to do so in the trial court.5 (§ 474 [when true name of
any fictitious defendant is discovered “the pleading or proceeding must be
amended accordingly”]; Edmon & Karnow, Cal. Practice Guide: Civil
5 Nor does plaintiff demonstrate for the first time on appeal that he
could have amended his complaint to add the State of California or the
superior court as a “Doe” defendant. In order to sue a public entity, plaintiff
must first present a government claim to that public entity that identifies the
legal and factual basis for the claim, within six months of the events giving
rise to the claim. (Gov. Code, §§ 905, 910, 911.2, subd. (a); State of California
v. Superior Court (2004) 32 Cal.4th 1234, 1239 [“failure to timely present a
claim for money or damages to a public entity bars a plaintiff from filing a
lawsuit against that entity”].) Plaintiff did not allege, and does not contend,
that he filed such a claim with the State of California or the superior court
within six months of the alleged incident on July 22, 2019. Although plaintiff
stated in the declaration attached to his motion to strike that he had mailed a
claim against the State of California on August 5, 2020, that was well beyond
six months from the underlying events on which his action is based.
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Procedure Before Trial (The Rutter Group 2022) ¶ 6:612.) Accordingly,
plaintiff has not shown the trial court erred in dismissing the complaint
against all defendants.
Plaintiff also appears to assert he was entitled to amend his complaint
pursuant to section 472, subdivision (a). Section 472, subdivision (a) allows a
party to amend a complaint once without leave of court before the defendant’s
answer, demurrer, or motion to strike is filed. However, the amended
complaint must be filed on or before the date for filing an opposition to the
demurrer or motion to strike, or after that date by stipulation of the parties.
(Ibid.; Edmon & Karnow, Cal. Practice Guide: Civil Procedure Before Trial,
supra, ¶ 6:603.) Because plaintiff did not amend his complaint within the
time permitted, he has not demonstrated that the trial court abused its
discretion in sustaining the demurrer without leave to amend.
Finally, plaintiff contends the trial court erred in sustaining the
demurrer on the basis that he failed to cite authority supporting his
allegation that the City owed him a duty because his motion to strike cited
Government Code sections 910.8, 911, and 910.4. Beyond cursory citations to
these statutes and citations to his briefing in the trial court, however,
plaintiff does not explain or develop these arguments on appeal. Accordingly,
they are forfeited. (Meridian Financial Services, Inc. v. Phan (2021)
67 Cal.App.5th 657, 701, fn. 15 [failure to adequately develop argument with
“meaningful legal analysis” forfeits the argument]; Soukup v. Law Offices of
Herbert Hafif (2006) 39 Cal.4th 260, 294, fn. 20, citing Colores v. Board of
Trustees (2003) 105 Cal.App.4th 1293, 1301, fn. 2 [“ ‘it is not appropriate to
incorporate by reference, into a brief, points and authorities contained in trial
court papers, even if such papers are made a part of the appellate record’ ”].)
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C. Motion to Strike the Demurrer
Plaintiff argues the trial court erred in denying his motion to strike the
demurrer as untimely because he was not required to give notice 16 court
days before the hearing on the motion. Plaintiff contends section 435,
subdivision (b)(2), which provides a “notice of motion to strike the answer or
the complaint, or a portion thereof, shall specify a hearing date set in
accordance with Section 1005” (italics added), does not apply to his motion to
strike a demurrer, which only requires a hearing date set concurrently with
the demurrer.
We agree with plaintiff that the trial court erred in denying his motion
as untimely. (§ 435, subd. (b)(3) [notice of motion to strike a demurrer shall
set the hearing concurrently with the demurrer]; Edmon & Karnow, Cal.
Practice Guide: Civil Procedure Before Trial, supra, ¶ 7:166 [a motion used to
attack a demurrer “must be filed at or before the time an opposition to the
demurrer is due—i.e., at least 9 court days before the hearing on the
demurrer; and it must be set for hearing concurrently with the demurrer,”
citing §§ 435, subd. (b), 1005].)
However, the trial court’s error was harmless, as the motion lacked
merit. (Cal. Const., art. VI, § 13 [no reversal for procedural error unless it
results in miscarriage of justice]; Code Civ. Proc., § 475 [appellate court
disregards any error or improper ruling which does not affect party’s
substantial rights].) A motion to strike under section 436 lies to “[s]trike out
any irrelevant, false, or improper matter inserted in any pleading,” or to
“[s]trike 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,
subds. (a) & (b).) The grounds for a motion to strike must appear on the face
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of the pleading under attack (here the demurrer), or from matters which the
court may judicially notice. (§ 437, subd. (a).)
In his motion, plaintiff argued the City’s demurrer should be stricken
because it “exhibit[ed] bias or prejudice based on one’s socioeconomic status
or disability.” Plaintiff attached a lengthy declaration to his motion to strike,
stating facts on which he based his assertion that the City’s filing of the
demurrer against him exhibited bias. Plaintiff did not identify any
inappropriate matter in the demurrer that should be stricken, nor did he
assert any procedural flaws in the demurrer or contest its timeliness, and his
attempt to base his motion to strike on extrinsic information contained in a
declaration was improper. (See, e.g., Edmon & Karnow, Cal. Practice Guide:
Civil Procedure Before Trial, supra, ¶ 7:169.) Accordingly, the motion lacked
merit, and the trial court did not err in denying it.
D. Discrimination Against Plaintiff
Plaintiff contends that under San Francisco Superior Court Local
Rules, rule 2.6(A), Alameda County Superior Court Local Rules, rule 2.0(A),
and the California Code of Judicial Ethics, canon 3B(6), “the court has a duty
to prevent discrimination, bias and prejudice toward its litigants.” Plaintiff
asserts the trial court “failed to uphold” these duties when it “disregarded
discriminatory acts” carried out against him by the City, including, but not
limited to (1) the City filing its demurrer without allowing plaintiff access to
its law library and (2) the City’s deputy attorney told plaintiff that he “did
‘not need’ ” access to the law library while knowing that plaintiff had limited
access to the Internet and no desk to perform his legal research. Plaintiff
fails to explain how the City’s conduct in filing its demurrer violated rules
governing the trial court’s antidiscrimination obligations. In any event, as
the City points out, plaintiff has not shown that he had a viable amendment
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which he could have made in a first amended complaint if he had access to a
law library.
E. Court Reporter
Finally, plaintiff asserts that the trial court failed to provide a court
reporter to transcribe the demurrer hearing. Plaintiff contends the City
timely requested a court reporter on August 4, 2020, and plaintiff also e-
mailed the court two hours before the hearing to request a court reporter
“pursuant to” Jameson v. Desta (2018) 5 Cal.5th 594. Plaintiff notes
“[u]nfortunately, no court reporter was provided by the trial court at the
demurrer hearing on October 29, 2020,” but he makes no argument in his
opening brief about the consequences or any prejudice resulting from that
alleged failure.6 Accordingly, we need not consider the issue further.
(Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 [appellant must
explain in brief exactly how trial court error caused a miscarriage of justice;
“An appellate court is not required to examine undeveloped claims, nor to
make arguments for parties.”].)
Even were we to consider the issue on the merits, plaintiff has not
shown he complied with California Rules of Court, rule 2.956(c)(2), which
provides, in part, that a party should request a court reporter on the
appropriate Judicial Council form 10 calendar days before the proceeding for
which a court reporter is desired or as soon as practicable if the proceeding is
set with less than 10 days’ notice.7 Here, by plaintiff’s own admission, he
6In any event, even if no transcript was available, plaintiff could have
obtained an agreed or settled statement in support of his appellate claims.
(Cal. Rules of Court, rules 8.130(h), 8.134, 8.137.)
7We also observe that the “Notice of Assignment of Judge for All
Purposes” served by the Alameda County Superior Court on September 18,
2020 contained a “NOTICE OF NONAVAILABILITY OF COURT
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requested a court reporter two hours before the hearing by e-mail.
Accordingly, the trial court did not err in failing to provide one.
III.
DISPOSITION
The judgment is affirmed. The parties are to bear their own costs on
appeal.
REPORTERS,” indicating that the court does not provide court reporters for
civil law and motion hearings.
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MARGULIES, J.
WE CONCUR:
HUMES, P. J.
BANKE, J.
A162435
DiGiacomo v. City and County of San Francisco
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