Goldshteyn v. Epiq Global CA2/3 ( 2024 )

Filed 9/4/24 Goldshteyn v. Epiq Global CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
GENNADIY GOLDSHTEYN, B333210
Plaintiff and Appellant, Los Angeles County
Super. Ct. No.
v. 23SMCV01169
EPIQ GLOBAL,
Defendant and Respondent.
APPEAL from a judgment of dismissal of the Superior
Court of Los Angeles County, Michael E. Whitaker, Judge.
Affirmed.
Gennadiy Goldshteyn, in pro. per., for Plaintiff and
Appellant.
Ogletree, Deakins, Nash, Smoak & Stewart, Ryan
Takeshi Chuman and Johnnie A. James for Defendant and
Respondent.
_________________________
Plaintiff Gennadiy Goldshteyn appeals in propria persona
from a judgment of dismissal entered in favor of defendant Epiq
Global (Epiq) after the trial court sustained Epiq’s demurrer to
plaintiff’s form complaint without leave to amend. We affirm.
BACKGROUND
1. Facts and procedural history disclosed by the
appellate record
On March 17, 2023, plaintiff, representing himself, filed
a Judicial Council form complaint for breach of contract against
“Epiq Company.” The form notes “each complaint must have one
or more causes of action attached” and provides a choice of causes
of action for the plaintiff to check. Plaintiff checked “Other” and
specified “Breach of Class Action” for his attached cause of action.
Under the prayer for relief section of the form, plaintiff checked
(1) the box for “damages of” and wrote in “$26,000,” and
(2) the box for “other” and wrote in “misleading and violating
settlement.” For the attached breach of contract cause of action,
plaintiff wrote “Class Action” in the form template’s blanks
to add allegations for each element of a breach of contract claim,
as depicted in the following screenshot of the complaint:
2
According to his declaration filed in support of Epiq’s
demurrer, Epiq’s attorney Ryan T. Chuman called the number
listed on plaintiff’s complaint and left him a voicemail explaining
Epiq intended to file a demurrer based on defects that appeared
on the face of the form complaint. Chuman declared he
specifically told plaintiff in the voicemail that his complaint
failed to assert any factual allegations to support a cause of
action, and a class action was “a legal procedural mechanism,”
not a cause of action.
Chuman memorialized his voicemail in a letter dated
July 10, 2023. He attached a copy to his declaration. His office
emailed the letter to “gagold@iname.com,” the email address
plaintiff listed on his complaint. That same day, counsel
also had First Legal deliver the letter to the address listed
on plaintiff’s complaint—an apartment in West Hollywood.
3
The messenger’s affidavit of due diligence states he knocked on
plaintiff’s door and “left documents at the door” when there was
no answer. Chuman also directly emailed plaintiff at the above
email address that evening about Epiq’s intent to file a demurrer.
He included his cell phone number and invited plaintiff to call
him. Both the letter and the email asked plaintiff to “advise”
if he would amend his complaint “to include a cause of action
with specific allegations,” and informed him Epiq would “have
no choice” but to file the demurrer if Chuman did not hear
from plaintiff by the end of the day on July 12.
Plaintiff did not respond to counsel’s email or call him by
July 12. Accordingly, on July 17, 2023, Epiq, through counsel,
filed a notice of demurrer and demurrer to plaintiff’s complaint
under Code of Civil Procedure section 430.10, subdivisions (e)
and (f).1 The notice stated the demurrer would be heard on
August 18, 2023, in Department 207 at the Beverly Hills
courthouse.
The proofs of service for the combined notice of demurrer,
demurrer, and memorandum of points and authorities, and
Chuman’s concurrently filed declaration and exhibits, indicate
both sets of documents were mailed to plaintiff on July 17, 2023,
at the address listed on his complaint. The proofs of service
indicate the documents also were emailed to plaintiff at
“gagold@ename.com.”2
1 Undesignated statutory references are to the Code of Civil
Procedure.
2 We cannot tell whether the documents were emailed to that
incorrect email address or whether the proofs of service contained
a typographical error, inserting “e” instead of “i” before “name.”
We assume the former for purposes of this appeal.
4
On July 17, 2023, the court served a notice of case
reassignment and order on all parties reassigning plaintiff’s
action to a new judge, but in the same department and
courthouse.3
Plaintiff did not file an opposition to Epiq’s demurrer.
On August 11, 2023, Epiq filed a notice of non-opposition.
Epiq served that notice by mail to the address listed on
plaintiff’s complaint. The proof of service states the notice
also was served by email to the “gagold@ename.com” address.
Epiq’s counsel appeared at the scheduled August 18, 2023,
8:30 a.m. hearing through LACourtConnect. The court posted
on its website its tentative ruling sustaining Epiq’s demurrer
without leave to amend. The court ruled plaintiff’s complaint
was both uncertain and failed to state a cause of action under
section 430.10, subdivisions (e) and (f), as—among other things
—plaintiff did not allege any information about the alleged
agreement or Epiq’s conduct that allegedly breached the
purported agreement. As plaintiff did not file an opposition,
the court found he had failed to meet his burden to demonstrate
he successfully could amend the complaint. Plaintiff did
not appear at the hearing. The court therefore adopted its
tentative ruling as the final order of the court.
On August 21, 2023, Epiq served notice of the court’s ruling
by mail and email—again, at the address plaintiff listed on his
3 The court’s certificate of mailing misspells the name of
plaintiff’s street by one letter but otherwise matches the address
listed on plaintiff’s complaint. Plaintiff does not contend he
did not receive the court’s notice. In any event, plaintiff’s receipt
of the notice of reassignment has no bearing on the issues raised
in his appeal.
5
complaint and the incorrect gagold@ename.com email address.
On August 31, 2023, Epiq served plaintiff—by those same means
—with its proposed order entering judgment against plaintiff.
On September 11, 2023, the court entered judgment in favor
of Epiq and against plaintiff based on its order sustaining
Epiq’s demurrer to plaintiff’s complaint without leave to amend.
That same day, the court mailed its notice of entry of judgment
to the parties.4
On September 26, 2023, plaintiff filed a notice of appeal
from the judgment. He served Epiq and its counsel by mail
on October 2, 2023.
2. Plaintiff’s additional facts not part of the record
Plaintiff includes a slew of facts in his opening and reply
briefs—not part of the appellate record—that he describes as
“[e]vents before the lawsuit was filed that caused the lawsuit.”
He asserts Morgan Stanley Smith Barney LLC (Morgan Stanley)
was involved in a class action lawsuit—the Morgan Stanley
Data Security Litigation—after it compromised the personal
information of its customers due to negligent internal data
security practices (the Morgan Stanley action). Morgan Stanley
entered into a class action “data security settlement,” and Epiq
was appointed to provide notice and claims administration.
Plaintiff asserts he received, filled out, and returned a settlement
claim form. He then began receiving emails from Epiq reminding
him he was eligible to receive $100 as part of the settlement but
had not yet claimed his payment. The sample email plaintiff
4 The court’s certificate of mailing again misspells the
name of plaintiff’s street by one letter. In his opening brief,
plaintiff states he received the notice of judgment and certificate
of mailing.
6
describes also stated he would be unable to claim his award
electronically after January 23, 2023, and provided methods
for plaintiff to contact Epiq by phone, email, and mail.
Plaintiff asserts he emailed the settlement administrator,
the “Epiq Project Director,” and appointed class counsel, asking
for reimbursement of his expenses and attorney fees identified
in documentation he had sent the settlement administrator.
Class counsel apparently replied to inform plaintiff the claims
administrator had determined the documentation he submitted
was insufficient for payment and to direct further concerns to
the claims administrator. Plaintiff stated he had paid $7,500
to a lawyer and was asking for a settlement payment of “about
$8,000.”
Epiq apparently again responded to plaintiff by email,
informing him he had been mailed a notice of defective claim
on February 8, 2023, and the invoice he sent in response had
insufficient detail of the services provided and did not include
proof of payment. The email also apparently stated Epiq
was able to substantiate only plaintiff’s claim for four hours
of lost time, which was paid out under the settlement at
$25 an hour for a total of $100. As plaintiff did not accept
his “digital EpiqPay payment,” Epiq was mailing a check
to plaintiff that day at the address listed on his claim form.
Plaintiff reproduces in his brief these and other email
communications he had with Epiq, class counsel, and the Epiq
Project Director, about his settlement claim and dispute with
Epiq over what he was owed under the class action settlement.
They are part of his request for judicial notice that we discuss
below.
7
Plaintiff also includes new facts in his recitation of
the relevant procedural history. Plaintiff states he filed his
complaint against Epiq because it “violated Morgan Stanley’s
agreement to reimburse attorneys’ fees.” He states he was
not informed of the demurrer hearing, apparently because he
did not receive “mail deliveries” from Epiq’s counsel, First Legal,
or the court. Plaintiff’s brief includes a purported copy of a
photograph of his neighbor’s apartment door with a handwritten
sign in block letters taped to it that reads, “Attention: Donation
Center Agent [¶] Please Pick Up the Supply By the Door,” and a
copy of a photograph of the same door with several boxes stacked
in front of it. (The photographs also are part of plaintiff’s request
for judicial notice.)
DISCUSSION
1. Plaintiff’s request for judicial notice
We first address plaintiff’s request for judicial notice, filed
in advance of his opening brief. Plaintiff asks us to “correct[ ]
. . . the record on appeal” to include (1) copies of the photographs
of his neighbor’s door with the donation area note and boxes
in front of it; (2) what appear to be retyped or copied and pasted
email communications from Chuman to plaintiff, Chuman’s
office to plaintiff, between plaintiff and First Legal, and an email
plaintiff sent Chuman in October 2023 asking for proof he mailed
and emailed the demurrer hearing date to plaintiff; (3) various
email communications between plaintiff and the Morgan Stanley
Data Security Settlement Administrator (i.e., Epiq), class
counsel, and the Epiq Project Director; and (4) what purports
to be a reproduction of a portion of class counsel’s declaration
filed in the Morgan Stanley action in support of the motion for
approval of the class action settlement, as well as purportedly
8
reproduced excerpts from other documents filed in that case
concerning the settlement.5
Plaintiff declares that, after he received the Clerk’s
Transcript, he “found that important information about the
real state of affairs was missing. Therefore, I want to present
arguments and documents to clarify the real situation.” He asks
us to “correct[ ]” the appellate record by including “the arguments
and documents listed in” his request for judicial notice.
First, none of the information included in plaintiff’s request
for judicial notice was before the trial court. Thus, including
plaintiff’s exhibits in the Clerk’s Transcript would not correct
the appellate record. Second, although we may take judicial
notice of matters that were not before the trial court, we
generally will not do so absent “exceptional circumstances.”
(Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th
434, 444, fn. 3; Weiss v. City of Del Mar (2019) 39 Cal.App.5th
609, 625.) No such exceptional circumstances exist here.
Plaintiff was aware of his email communications with Epiq,
as well as the Morgan Stanley class action settlement, when
he filed his complaint but did not include those allegations in it.
Nor did he bring that information—or the photographs or
his email communications with Epiq’s counsel and First Legal—
to the trial court’s attention in an opposition to Epiq’s
demurrer, at the demurrer hearing, or in a motion for relief
from the dismissal under section 473, which we discuss below.
We are cognizant plaintiff is a self-represented individual.
5 According to plaintiff’s request for judicial notice,
the Morgan Stanley action was filed in the United States
District Court, Southern District of New York, case number
1:20-cv-05914-AT.
9
Self-representation, however, “is not a ground for exceptionally
lenient treatment. Except when a particular rule provides
otherwise, the rules of civil procedure must apply equally to
parties represented by counsel and those who forgo attorney
representation.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975,
984–985.) Plaintiff’s self-represented status thus does not
constitute an exceptional circumstance.
In any event, plaintiff’s documents are not properly the
subject of judicial notice. We may take judicial notice of records
of another state or federal court. (Evid. Code, § 452, subd. (d).)
Plaintiff, however, asks us to take judicial notice of what
apparently is text he has copied from various documents
purportedly filed in connection with the Morgan Stanley class
action settlement—not file-stamped copies of the documents.
(See Ross v. Creel Printing & Publishing Co. (2002) 100
Cal.App.4th 736, 743 (Ross) [declining to take judicial notice of
uncertified, out-of-state complaint not produced under subpoena];
J.W. v. Watchtower Bible & Tract Society of New York, Inc. (2018)
29 Cal.App.5th 1142, 1172–1173 [judicial notice of documents
filed in court denied where they were not file stamped by the
court].) We have no way of knowing whether the reproduced
excerpts are accurate and will not take judicial notice of them.
Moreover, even if were to take judicial notice of these
purported court records, we would not consider the facts
asserted in them in deciding plaintiff’s appeal. (Doers v. Golden
Gate Bridge, etc. (1979) 23 Cal.3d 180, 184, fn. 1 [“Although a
reviewing court may take judicial notice of matters not before
the trial court, including records of another court (Evid. Code,
§§ 459, subd. (a), 452, subd. (d)), the reviewing court need not
give effect to such evidence.”], overruled in part on another
10
ground in Quach v. California Commerce Club, Inc. (2024) 16
Cal.5th 562.) Plaintiff has not explained how the excerpts from
the documents filed in the Morgan Stanley action demonstrate
the existence of a contract between plaintiff and Epiq. In any
event, the truth of matters asserted in those court documents
is not subject to judicial notice. (See Guarantee Forklift, Inc.
v. Capacity of Texas, Inc. (2017) 11 Cal.App.5th 1066, 1075
[appellate court may take judicial notice of court records but
generally does “not take judicial notice of the truth of the
matter asserted in such documents, and may decline to take
judicial notice of matters not relevant to dispositive issues
on appeal”]; Ross, supra, 100 Cal.App.4th at p. 743 [even if
court record was properly certified, appellate court would take
judicial notice only of its existence, not the truth of its contents].)
As for the photographs and various email communications,
they are not matters of common knowledge not reasonably
the subject of dispute nor “capable of immediate and accurate
determination by resort to sources of reasonably indisputable
accuracy.” (Evid. Code, § 452, subds. (g), (h).) Thus they are
not properly the subject of judicial notice.
Accordingly, we deny plaintiff’s request for judicial notice
in its entirety.
2. Standards of review
In reviewing a judgment of dismissal after a trial court
has sustained a demurrer, we “examine the operative complaint
de novo to determine whether it alleges facts sufficient to state
a cause of action under any legal theory.” (T.H. v. Novartis
Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162.) When a
demurrer is sustained without leave to amend, “we decide
whether there is a reasonable possibility that the defect can
11
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.” (Blank
v. Kirwan (1985) 39 Cal.3d 311, 318.)
3. On its face, plaintiff’s complaint is uncertain
and fails to state a cause of action
Plaintiff’s form breach of contract complaint is devoid of
factual allegations and thus is fatally flawed. As the trial court
explained, it purports to “bring[ ] the cause of action for ‘breach of
class action’ and prays for ‘damages of: $26,000’ and ‘misleading
and violating the settlement[.]’ ” The complaint alleges
unspecified parties entered into a “ ‘Class Action’ agreement,”
on an unspecified date, “the essential terms of which are ‘Class
Action[.]’ ” And, on an unspecified date, Epiq “breached the
agreement by ‘Class Action[.]’ ” The damages Epiq caused
plaintiff by breaching the agreement also are “ ‘Class Action.’ ”
As the trial court found, not only are these allegations
so vague that Epiq could not “reasonably determine what issues
must be admitted or denied,” but they also fail to allege the
essential elements of a breach of contract action. (See, e.g.,
Piedmont Capital Management, L.L.C. v. McElfish (2023) 94
Cal.App.5th 961, 968 (Piedmont Capital) [breach of contract
claim has four elements: existence of a contract, plaintiff’s
performance or excuse for nonperformance, defendant’s breach,
and resulting damages].) Plaintiff neither pleaded the legal
effect nor the precise terms of the purported class action
agreement. Nor did plaintiff—as the trial court noted—allege
the parties to the agreement, whether plaintiff performed under
the agreement, or what Epiq allegedly did or didn’t do to breach
12
that agreement. Accordingly, the trial court properly sustained
Epiq’s demurrer on both the ground the complaint was uncertain
under section 430.10, subdivision (f), and failed to state facts
sufficient to constitute a cause of action under section 430.10,
subdivision (e).6
4. Plaintiff has failed to show the court erred in
sustaining the demurrer without leave to amend
Epiq argues plaintiff has forfeited his challenge to the
court’s ruling because he neither opposed Epiq’s demurrer nor
appeared at the demurrer hearing. Generally, the failure to
oppose a motion and to appear at the motion hearing forfeits
subsequent challenges to the motion ruling. (Bell v. American
Title Ins. Co. (1991) 226 Cal.App.3d 1589, 1602.) We
nevertheless consider plaintiff’s challenge to the court’s order
and judgment of dismissal.
Plaintiff, however, is bound to follow the most fundamental
rule of appellate review: “A judgment or order of the lower court
is presumed correct. All intendments and presumptions are
indulged to support it on matters as to which the record is silent,
and error must be affirmatively shown.” (Denham v. Superior
Court of Los Angeles County (1970) 2 Cal.3d 557, 564; see also
Simms v. Bear Valley Community Healthcare Dist. (2022)
80 Cal.App.5th 391, 406, fn. 5 [self-represented party is
6 Plaintiff also seems to contend it was Epiq’s counsel’s duty
to disclose the existence of plaintiff’s communications with Epiq
about his class settlement claims at the demurrer hearing.
Plaintiff is under the misimpression that Epiq’s counsel owed
plaintiff a duty to articulate the factual basis for plaintiff’s claims
against Epiq. That was plaintiff’s burden, not Epiq’s counsel’s.
13
“held to the same standard of knowledge of law and procedure
as an attorney”].)
Plaintiff appears to argue the new facts he has alleged
in his briefs are sufficient to constitute a cause of action against
Epiq; the dismissal should be reversed because the court erred
in finding Epiq’s counsel’s attempts to meet and confer with
plaintiff were adequate; plaintiff never received notice of the
demurrer hearing date; and plaintiff should be granted relief
under section 473. We address each of these arguments.
a. Plaintiff has not demonstrated he can amend
his complaint to state a valid cause of action
It is the plaintiff’s “ ‘burden to establish how the complaint
can be amended to state a valid cause of action.’ ” (Jensen v.
The Home Depot, Inc. (2018) 24 Cal.App.5th 92, 97 (Jensen).)
As plaintiff did not make any showing in the trial court as to
how he would amend his complaint—given he did not appear
at the hearing or file an opposition—the court did not abuse its
discretion in sustaining the demurrer without leave to amend.
(Ibid.)
Nevertheless, a plaintiff may ask for leave to amend
a complaint for the first time on appeal. (Jensen, supra, 24
Cal.App.5th at p. 97.) The burden of demonstrating a reasonable
possibility of amendment remains with the plaintiff. On appeal,
a plaintiff “must show in what manner he can amend his
complaint and how that amendment will change the legal effect
of his pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335,
349.) We will not rewrite a complaint to include facts a plaintiff
“might allege if given the opportunity.” (Gould v. Maryland
Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1153.)
14
Plaintiff has not shown how the facts he alleges in his
briefs demonstrate he can amend his complaint successfully.
Even if we were to take judicial notice of the Morgan Stanley
court documents, photographs, and email communications
plaintiff apparently contends support his complaint, they do
not make clear plaintiff can allege a viable breach of contract
cause of action against Epiq. From what we can gather, plaintiff
argues that, because the Morgan Stanley class action settlement
included its payment of attorney fees and costs, Epiq breached
that agreement by not paying plaintiff his claim for attorney fees
and costs. Plaintiff has not explained, however, how Morgan
Stanley’s obligations under the class action settlement, or
the email communications between plaintiff and Epiq about
plaintiff’s claims under the settlement, demonstrate a contract
existed between plaintiff and Epiq. Nor has plaintiff set forth
the terms of that purported contract, or their legal effect, or even
how Epiq breached those unstated terms—essential elements
of a breach of contract cause of action. (Piedmont Capital,
supra, 94 Cal.App.5th at p. 968; see also Construction Protective
Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189,
198–199 [plaintiff may plead legal effect of contract rather than
its precise language].)
Indeed, plaintiff cites no legal authority as to how those
alleged facts satisfy the elements of a breach of contract cause
of action—or some other cause of action—against Epiq. (See
Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784–785
[“When an appellant fails to raise a point, or asserts it but fails
to support it with reasoned argument and citations to authority,
we treat the point as waived.”].) Plaintiff thus has failed to
15
satisfy his burden on appeal to show he reasonably can amend
his complaint.
b. The court properly found Epiq’s counsel satisfied
his meet and confer obligations
Section 430.41, subdivision (a) requires that, before a
party may file a demurrer, the demurring party must “meet
and confer in person [or] by telephone . . . with the party who
filed the pleading that is subject to demurrer for the purpose of
determining whether an agreement can be reached that would
resolve the objections to be raised in the demurrer.” The trial
court concluded Epiq’s counsel attempted to meet and confer
with plaintiff “with sufficient diligence to satisfy the statutory
meet and confer requirement” based on the voicemail he
left plaintiff, the letter he emailed and attempted to deliver
personally to plaintiff, and his second email to plaintiff with
his contact information.
Plaintiff does not argue he did not receive Chuman’s
voicemail, emailed letter, or second email, or that the phone
number, email address, or physical address Chuman used were
incorrect. Indeed, plaintiff admits he received three emails from
Chuman, including one where Chuman introduced himself as
Epiq’s counsel and explained he was authorized to accept service
of plaintiff’s complaint.7
Rather, plaintiff seems to contend the court erred in
finding Epiq satisfied section 430.41 because Epiq did not
formally notify plaintiff Chuman was its attorney. Plaintiff
7 Plaintiff reproduced that email, dated June 7, 2023, in
his reply brief. It is not part of the appellate record. The other
two emails plaintiff admits he received are those attached
to Chuman’s declaration in support of Epiq’s demurrer.
16
asserts he “refused to contact” Chuman because “he was not
presented” to plaintiff “as a party officially representing” Epiq.
He argues Chuman “violated” section 1014 by failing to give
plaintiff “any written notice of his appearance or representation.”
Plaintiff misreads section 1014. That section governs
what constitutes a defendant’s appearance in an action to trigger
the defendant’s, or its attorney’s, entitlement to notice in the
proceedings. (§ 1014.) Under the statute, a defendant “appears”
when the defendant files an answer, demurrer, or other specified
motions; or when the defendant “gives the plaintiff written notice
of appearance”; or “when an attorney gives notice of appearance
for the defendant.” (Ibid.) Nothing in the statute requires the
defendant also to give the plaintiff a separate formal, written
notice identifying its attorney.
Here, Chuman notified plaintiff more than once that he
represented Epiq in this matter and plaintiff should contact him.
That plaintiff did not believe Chuman “officially represent[ed]”
Epiq is no excuse for plaintiff’s inaction, as Epiq notes, nor
does it demonstrate the court erred.
c. The record shows Epiq properly served plaintiff
Plaintiff contends he did not appear at the demurrer
hearing because he was not properly notified of the date,
requiring the judgment to be reversed. He argues Epiq failed to
serve him properly with notice of the demurrer hearing because
(1) the email address on the proof of service was incorrect, and
(2) he “missed” the mailed documents because they were left in
his neighbor’s donation space and lost or “improperly delivered.”
The proofs of service for Epiq’s notice of demurrer,
moving papers, and supporting declaration and exhibits show
Epiq served plaintiff by mail on July 17, 2023, at the address
17
plaintiff listed on his complaint—the same address plaintiff
provided this court.8 Plaintiff does not contend that mailing
address was incorrect, only that the mailed documents must
have been lost among the boxes in the donation area or otherwise
misdelivered. Even if we were to take judicial notice of the
photographs plaintiff includes of that area, they do not
demonstrate Epiq improperly served plaintiff.
As plaintiff notes, the email address listed on Epiq’s
proof of service of the notice of demurrer and moving papers is
incorrect. But nothing in the record indicates Epiq was required
to serve plaintiff by email as well. (§ 1010.6, subd. (b)(1) [court
may order electronic service on represented party], subd. (c)(2)
[unrepresented party may consent to electronic service].)
Epiq’s counsel apparently did so as a courtesy.
As Epiq served plaintiff by mail more than 21 court days
before the noticed August 18, 2023 demurrer hearing, the service
of the notice of demurrer and other documents was timely as
a matter of law. (See § 1005, subd. (b) [moving papers must
be served 16 court days before hearing date plus an additional
5 days if served by mail].) Accordingly, the appellate record does
not support plaintiff’s assertion that he was not properly served.
8 Epiq incorrectly states the proof of service shows it
personally served the moving papers at plaintiff’s address.
The proof of service cited in the appellate record checks the box
“BY MAIL” for the method of service. It states an individual
from Epiq’s counsel’s office placed a copy of the documents in
an envelope and “placed the envelope for collection and mailing,
following our ordinary business practices.”
18
d. Plaintiff has forfeited his argument that the judgment
should be vacated under section 473
For the first time on appeal, plaintiff appears to contend
his “missed” receipt of the mailed notice of demurrer hearing
constitutes “mistake, inadvertence, surprise, or excusable
neglect,” entitling him to have the judgment of dismissal
set aside under section 473, subdivision (b). The problem
with plaintiff’s argument is that he did not seek relief under
section 473 in the trial court. That statute authorizes the court,
on a party’s application, to relieve the party “from a judgment,
dismissal, order, or other proceeding taken against him or her
through his or her mistake, inadvertence, surprise, or excusable
neglect.” (§ 473, subd. (b).)
If plaintiff believed he did not receive the mailed service
copy due to its mistaken delivery to his neighbor’s donation pile,
or due to his inadvertence or excusable neglect, his recourse
was to file a motion with the trial court asking for relief from
the order sustaining the demurrer without leave to amend and
the judgment of dismissal under section 473, subdivision (b).
As plaintiff never did so, he has forfeited appellate review of
the issue. (See, e.g., In re Marriage of Eben-King & King (2000)
80 Cal.App.4th 92, 117 [“It is well established that issues or
theories not properly raised or presented in the trial court may
not be asserted on appeal, and will not be considered by an
appellate tribunal.”]; Kern County Dept. of Child Support Services
v. Camacho (2012) 209 Cal.App.4th 1028, 1038 [“It is axiomatic
that arguments not raised in the trial court are forfeited on
appeal.”].) We thus do not consider whether plaintiff was
entitled to relief under section 473.
19
Accordingly, plaintiff has failed to meet his burden to
show the court erred in sustaining the demurrer without leave
to amend and in dismissing his case.
DISPOSITION
The judgment of dismissal is affirmed. The parties shall
bear their respective costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
ADAMS, J.
20