McCloskey v. The Walt Disney Company CA4/3 ( 2021 )

Filed 1/13/21 McCloskey v. The Walt Disney Company CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
MICHAEL L. McCLOSKEY,
Plaintiff and Appellant, G058842
v. (Super. Ct. No. 30-2018-01022996)
THE WALT DISNEY COMPANY, OPINION
Defendant and Respondent.
Appeal from a judgment of the Superior Court of Orange County, Gregory
H. Lewis, Judge. Affirmed.
Michael L. McCloskey, in pro. per., for Plaintiff and Appellant.
Pillsbury Winthrop Shaw Pittman, Mark D. Litvack and Michael R. Kreiner
for Defendant and Respondent.
* * *
This appeal by plaintiff Michael L. McCloskey follows a judgment of
dismissal after the trial court sustained the demurrer of defendant the Walt Disney
Company (Disney) to McCloskey’s fourth amended complaint without further leave to
amend. Disney argues that McCloskey, a self-represented litigant, failed to meet basic
standards for a cognizable pleading despite having multiple attempts to do so. After a
thorough review of the voluminous record, we must concur, and contrary to McCloskey’s
claims, we do not agree that he should have been given yet another opportunity to amend.
Accordingly, we affirm the judgment.
I
FACTS
According to McCloskey’s four paragraph statement of facts, he “is an
innocent man, living for over 55 years in the city of Anaheim as a model citizen doing no
one harm. For over twenty years the appellant has had a long history of being a model
citizen going to the Disneyland resort only being nice to people and helping others locked
in to an already paid for year long pass.” He contends that “it is the Disney employees,
carnival like, humping and dumping each other every night, with bad morals seeing a
way to get someone who may have humped and dumped them the other night by
attacking the Disneyland resort guests who were clapping for those performers. Disney
employees in a dark and evil place were attacking the plaintiff to make him do things
they wanted like not clap for someone, give up Christianity and stop being a Tea party
person. Over time the Disney employee attacks increased on the plaintiff while more
Disney employees got involved all forming a group trying to hurt the plaintiff so he
doesn’t come back to their Disneyland resort while their complaint department helped
them, they were in on the conspiracy too.”
McCloskey goes on to state “the Disney employee misconduct reached to
the court system too” and that the trial judge “tried his best to help the Disney employees
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win and he did and they did.” He asserts misconduct on the part of Disney employees,
defense counsel, and the trial court.
This is as much of a statement of facts as McCloskey provides in his
opening brief, citing only to the entire third amended complaint, which is approximately
149 pages long. This failure to cite to the record with specificity is improper. “Rule
[8.204(a)(1)(C)] of the California Rules of Court provides in relevant part that all
appellate briefs must ‘support any reference to a matter in the record by a citation to the
record.’” (Nwosu v. Uba (2004)122 Cal.App.4th 1229, 1246.) “The appellate court is
not required to search the record on its own seeking error.” (Del Real v. City of Riverside
(2002) 95 Cal.App.4th 761, 768.) His self-represented status does not relieve him of this
responsibility. (Nwosu, at pp. 1246-1247.)
McCloskey’s failure to provide record citations constitutes grounds to deem
all of his arguments waived. If “‘a party fails to support an argument with the necessary
citations to the record, . . . the argument [will be] deemed to have been waived.’” (Nwosu
v. Uba, supra, 122 Cal.App.4th at p. 1246.)
In the interests of justice, we will address McCloskey’s contentions on the
merits as far as we are able to do so. To the extent, however, that he states facts in his
briefs that we are unable to readily locate in the record, particularly any version of his
lengthy complaint, we disregard those facts.
Procedural History
McCloskey’s original complaint, filed in October 2018, was 617 pages long
and purported to assert 162 causes of action. The disjointed, disorganized, and
essentially incoherent complaint is very difficult to follow, but alleged something to do
with Disney employees making statements such as “he is crazy,” among other things. He
claimed over 2,000 of these situations had occurred in the two years prior to filing his
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complaint. He also claimed Disney had violated his civil rights, in addition to myriad
other assertions.
After a meet and confer with Disney’s counsel, McCloskey filed a first
amended complaint. This complaint expanded to 776 pages and was no more digestible
than the previous iteration.
The trial court granted McCloskey’s request for leave to file a second
amended complaint. The second amended complaint was 426 pages, but it was unclear
how many causes of action it purported to include. Disney states: “As with his earlier
pleadings, it was impossible to discern the legal theories asserted or the essential facts
that allegedly supported those legal theories.” Disney demurred arguing uncertainty,
failure to state facts sufficient to constitute a cause of action, and that some causes of
action were barred by the statute of limitations. The trial court sustained the demurrer for
uncertainty with leave to amend. The court’s ruling noted: “Plaintiff’s Second Amended
Complaint exceeds 400 pages. Despite several revisions, the pleading is
incomprehensible. The Second Amended Complaint is so uncertain that the ambiguities
could not be clarified with discovery.”
McCloskey filed his third amended complaint thereafter, shortening it to
149 pages. The causes of action, however, as well as the ultimate facts and relevant legal
theories, remained unclear. Disney again demurred on the same grounds – uncertainty,
failure to state a cause of action, and the statute of limitations as to certain causes of
action. The court acknowledged some progress in sustaining the demurrer, but also noted
“each cause of action includes multiple theories within each cause of action,” and
“[d]espite the multiple amendments, Plaintiff’s Third Amended Complaint remains a
hodge-podge, confusing causes of action.” The trial court then ordered McCloskey to
abide by the following on his next attempt at amendment: No more than 50 pages, no
more than nine causes of action, each cause of action must be identified by claim (such as
negligence), and multiple claims were not to be combined into a single cause of action.
4
McCloskey’s fourth amended complaint, however, largely ignored the
court’s order. While the pleading was 50 pages, it purported to allege 14 causes of action
and combined numerous claims into a single cause of action. The causes of action
included defamation, violation of the Unruh Civil Rights Act (Civ. Code, § 351 et seq.),
negligence, negligent hiring and training, invasion of privacy, violation of the Tom Bane
Civil Rights Act (Civ. Code, § 52.1), false imprisonment, intentional interference with
prospective economic relations, intentional infliction of emotional distress, “physical
pain, mental suffering, and emotional distress,” spoliation of evidence, sexual
harassment, civil harassment, and civil conspiracy.
Disney, not surprisingly, demurred on now familiar grounds. McCloskey’s
opposition requested leave to amend, including a proposed fifth amended complaint as an
exhibit. This proposed complaint did not comply with the court’s prior order either, as it
was 67 pages long.
The court sustained Disney’s demurrer without leave to amend. The
court’s order noted McCloskey had violated its prior order, increasing the number of
causes of action. The court also noted that on its face, several of McCloskey’s claims
were outside the statute of limitations, including false imprisonment and defamation
claims more than one year before the complaint was filed. Further, there is no tort
remedy for spoliation of evidence. The court’s focus, however, was the overall
uncertainty of the complaint. “Despite the multiple amendments, Plaintiff’s Fourth
Amended Complaint remains a hodge-podge, confusing causes of action.” With respect
to amendment, the court noted McCloskey’s proposed fifth amended complaint “failed to
cure the numerous defects that created uncertainty.” McCloskey now appeals.
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II
DISCUSSION
Standard of Review
We review an order sustaining a demurrer de novo. (Intengan v. BAC
Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1052.) “In reviewing the
sufficiency of a complaint against a general demurrer, we are guided by long-settled
rules. We treat the demurrer as admitting all material facts properly pleaded, but not
contentions, deductions or conclusions of fact or law. We also consider matters which
may be judicially noticed.” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 384-
385.) “In order to prevail on appeal from an order sustaining a demurrer, the appellant
must affirmatively demonstrate error. Specifically, the appellant must show that the facts
pleaded are sufficient to establish every element of a cause of action and overcome all
legal grounds on which the trial court sustained the demurrer. [Citation.] We will affirm
the ruling if there is any ground on which the demurrer could have been properly
sustained.” (Intengan v. BAC Home Loans Servicing LP, supra, 214 Cal.App.4th at
p. 1052.)
“If a complaint does not state a cause of action, but there is a reasonable
possibility that the defect can be cured by amendment, leave to amend must be granted.”
(Quelimane Co. v. Steward Title Guaranty Co. (1998) 19 Cal.4th 26, 39.) In reviewing
the trial court’s denial of the plaintiff’s request for leave to amend, we apply the more
deferential abuse of discretion standard. (Canton Poultry & Deli, Inc. v. Stockwell,
Harris, Widom & Woolverton (2003) 109 Cal.App.4th 1219, 1225-1226.)
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Relevant Legal Principles
Complaints must generally include “[a] statement of the facts constituting
the action, in ordinary and concise language.” (Code Civ. Proc., § 425.10, subd. (a)(1).)1
Section 430.10 permits a defendant to demur when the complaint “is uncertain.” As used
in this context, “‘uncertain’ includes ambiguous and unintelligible.” (§ 430.10., subd. (f).)
“‘[T]o withstand a demurrer, a complaint must allege ultimate facts, not
evidentiary facts or conclusions of law.’ [Citation.] However, ‘“[t]he fact that a party
has alleged more than is required to justify his right does not obligate him to prove more
than is essential, and the unnecessary allegations will be treated as surplusage unless the
opposing party would be prejudiced.”’ [Citation.] At some point, of course, there is a
remedy for undue prolixity: a demurrer for uncertainty. [Citation.] But ‘demurrers for
uncertainty are disfavored, and are granted only if the pleading is so incomprehensible
that a defendant cannot reasonably respond.’” (Mahan v. Charles W. Chan Ins. Agency,
Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3.)
The Fourth Amended Complaint
McCloskey argues the trial court erred by sustaining the demurrer to the
fourth amended complaint, referring us to some boilerplate paragraphs about pleadings
and simply stating, without any analysis, that his complaint met the applicable standards.
While the lack of analysis alone would be sufficient to deem the issue waived and uphold
the trial court’s ruling (Denham v. Superior Court (1970) 2 Cal.3d 557, 564;
Fundamental Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971),
McCloskey is also wrong on the merits.
The fourth amended complaint, like every complaint McCloskey filed, was
fatally unclear as to what he was alleging. The complaint, as far as we can tell, had no
1
Subsequent statutory references are to the Code of Civil Procedure.
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principle around which it was organized – not chronological or anything else. It was
simply as a jumble of unclear allegations. And by “unclear” we mean both to what he
actually alleged happened and the legal import of those purported events. McCloskey
appear to combine various legal theories in a single claim. Simply put, after reading five
versions of McCloskey’s complaint, we are no closer to figuring out exactly what his
claims are, what facts they are based on, and whether any legal theories (assuming the
facts are true) might provide relief. There was, therefore, no way that any reasonable
defendant could be expected to read the complaint, identify potential defenses, or
respond.
Further, his is not a case where a lack of uncertainty can be cured by
modern discovery procedures. (See, e.g., Chen v. Berenjian (2019) 33 Cal.App.5th 811,
822 [“A demurrer for uncertainty should be overruled when the facts as to which the
complaint is uncertain are presumptively within the defendant’s knowledge”].) Whether
read as a whole or in each complaint’s component parts, all of McCloskey’s complaints,
including the fourth amended, lack the minimum requisite certainty to move past the
pleading stage. The demurrer was properly sustained.
The Third Amended Complaint
McCloskey also argues the trial court should not have sustained the
demurrer to his third amended complaint. We cannot consider this issue because he
elected to amend his complaint. (Singhania v. Uttarwar (2006) 136 Ca1.App.4th 416,
425.) But were we to consider this issue, we would find the trial court properly sustained
the demurrer to the third amended complaint for the same reasons as the fourth amended
complaint, and would affirm that ruling on the same ground – the fatal lack of certainty.
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Judicial Bias
McCloskey claims the trial judge “was biased and unfit for his position
proving by his actions he should be removed from his position and his rulings should be
reversed!” He claims, without record references, that the judge lied under oath, raised his
voice, “scared” his staff into refusing to testify against the judge, and, while laughing
with defense counsel, asked McCloskey to admit he was a pedophile. McCloskey avers
that the judge lied under oath in a declaration in the context of a motion for recusal, 2 and
“had the delusional fantasy in his court room [sic] that the plaintiff was telling him he
was a pedophile and told the cops that too, cops the judge didn’t want seen [sic] sued
individually! [The trial judge] never let go of his delusional fantasy from then on,
possibly drug induced.” He also claims the judge’s rulings were based on lies and
delusional fantasies.
Further, McCloskey claims the trial judge “tried to take advantage” of him
because of his self-represented status, engaged in “illegal meetings” with defense
counsel, allowed defense counsel to “flash his phone” to the judge and his staff
improperly communicating something and “made disparaging and discourteous remarks
and gestures and looks about [him],” and did not rule on matters before the court for “so
long.” Again, none of these alleged incidents include citations to the record. There are
more allegations (the list of the trial judge’s misdeeds numbers at well over 30, including
the purported “lies and delusions”) but most are duplicative of those already set forth, and
again, none are supported by relevant record citations. A number of these statements are
2
McCloskey may be requesting that we review the order denying his motion to recuse
the trial judge, but it is not an appealable order; it may only be reviewed by way of a
petition for writ of mandate. (§ 170.3, subd. (d); Daniel V. v. Superior Court (2006) 139
Cal.App.4th 28, 39.)
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allegations about the actions and motivations of the judge3 and opposing counsel.4
Because those statements are not supported by the record, we do not repeat them here.
Judicial “‘bias and prejudice must clearly be established by an objective
standard.’ [Citations.] ‘Judges, like all human beings, have widely varying experiences
and backgrounds. Except perhaps in extreme circumstances, those not directly related to
the case or the parties do not disqualify them.’” (Haworth v. Superior Court (2010) 50
Cal.4th 372, 389, italics added.) “‘The “reasonable person” is not someone who is
“hypersensitive or unduly suspicious,” but rather is a “well-informed, thoughtful
observer.”’ [Citations.] ‘[T]he partisan litigant emotionally involved in the controversy
underlying the lawsuit is not the disinterested objective observer whose doubts
concerning the judge’s impartiality provide the governing standard.’” (Ibid.)
McCloskey has both obviously and spectacularly failed to come anywhere
close to meeting this standard. His accusations lack record citations supporting bias, and,
therefore, any evidence whatsoever. There are no hearing transcripts at all included in
the record, and therefore no evidence that anything improper, untoward, or otherwise
even mildly objectionable took place. Further, nothing in any of the judge’s orders
reveals bias or prejudice; indeed, the record reflects a patient judge who gave a self-
represented litigant multiple opportunities to amend a clearly deficient complaint.
Judicial bias is a serious matter. To make such accusations without the
slightest scintilla of evidence to support them is a grievous misuse of the judicial system,
and we wholeheartedly reject the attempt to do so.
3
McCloskey also alleges that a purported personal characteristic of the judge prejudiced
him. This allegation is simply beyond the pale and not worthy of serious consideration.
(See Rebmann v. Rohde (2011) 196 Cal.App.4th 1283, 1293.)
4
We have also reviewed McCloskey’s allegations of “defense attorney misconduct.”
None of his claims against defense counsel are grounds for reversal on appeal, nor does
this court consider whether, as McCloskey claims, counsel should be disbarred. We note,
again, that McCloskey provides no evidence of his claims against counsel.
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Leave to Amend
As the trial court noted, McCloskey had multiple chances to plead a
cognizable complaint. His fourth amended complaint was 50 pages. His proposed fifth
amended complaint was actually longer, at 67 pages, and it continues to demonstrate the
minimal lack of clarity required to proceed. In both the trial court and in this court, he
has not made any factual showing that he can succeed in amending his complaint other
than his baldfaced statements claiming that he can. Given the history of this case,
McCloskey’s unsupported arguments on appeal, and the state of the fourth amended
complaint and proposed fifth amended complaint, we find no reasonable probability that
he could amend to state a valid cause of action. Therefore, the trial court did not abuse its
discretion by declining to grant further leave to amend.
III
DISPOSITION
The judgment is affirmed. In the interests of justice, each side shall bear its own
costs on appeal.
MOORE, ACTING P. J.
WE CONCUR:
IKOLA, J.
THOMPSON, J.
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