Leedy v. Bell CA4/2

Filed 5/5/21 Leedy v. Bell CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
SUSAN LEEDY,
Plaintiff and Appellant, E073739
v. (Super.Ct.No. RIC1900982)
GARY EVAN BELL, OPINION
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. Daniel A. Ottolia, Judge.
Affirmed.
The Law Office of Evan D. Williams and Evan D. Williams for Plaintiff and
Appellant.
Callahan, Thompson, Sherman & Caudill, and Christopher J. Zopatti for
Defendant and Respondent.
In this civil case, the trial court granted defendant and respondent Gary Evan
Bell’s demurrer and gave plaintiff and appellant Susan Leedy 30 days to amend her
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complaint. She did not do so, so the court dismissed the case and entered judgment
against her.
Leedy contends on appeal that the dismissal was an abuse of discretion because
she was in jail during the amendment period. But incarceration does not automatically
put cases on pause, and while jail conditions may prevent access to the courts in specific
cases, thereby warranting relief, the record is devoid of any specifics here. She therefore
fails to establish an abuse of discretion, and we affirm.
I. BACKGROUND
In January 2019, Leedy filed a complaint against Bell, her one-time therapist,
alleging causes of action for professional negligence, sexual contact, breach of fiduciary
duty, and intentional infliction of emotional distress. She was self-represented at the
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time.
Bell filed a demurrer. When the court heard the demurrer in May, Leedy was in
jail, having been arrested the previous month for apparently violating a restraining order
Bell had obtained against her. Leedy did not appear at the hearing, and Bell’s counsel
informed the court that Leedy was in jail. The court sustained the demurrer with 30 days
leave to amend.
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We grant Bell’s request for judicial notice (see Evid. Code, § 452, subd. (d)),
and we grant Leedy’s motion to augment the record (see Cal. Rules of Court, rule
8.155(a)(1)(A).) We have already granted Bell’s motion to augment by previous order.
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Leedy did not amend her complaint within the 30 days, so Bell sought an ex parte
motion to dismiss the case pursuant to Code of Civil Procedure section 581, subdivision
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(f)(2) (section 581(f)(2)), which the court granted soon after the 30 days had expired. At
a separate hearing in the case two weeks before the ex parte hearing, Bell’s counsel stated
that Leedy was still in jail. There was no discussion of Leedy’s incarceration at the ex
parte hearing itself. In July, the trial court entered a judgment of dismissal.
Approximately a week and a half later, Leedy was let out of jail. She then obtained
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counsel and appealed.
II. DISCUSSION
Leedy’s sole contention is that the trial court erroneously dismissed her case. A
trial court’s determination to dismiss an action under section 581(f)(2) is reviewed for
abuse of discretion. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th
603, 612.) “The trial court’s ‘discretion is only abused where there is a clear showing [it]
exceeded the bounds of reason, all of the circumstances being considered.’” (Meeks v.
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Section 581(f)(2) provides that, with exceptions not relevant here, a court may
dismiss a complaint “after a demurrer to the complaint is sustained with leave to amend,
[and] the plaintiff fails to amend it within the time allowed by the court and either party
moves for dismissal.”
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Leedy’s notice of appeal indicates that she is appealing from an order after
judgment, but this appears to be in error, as her brief addresses only the dismissal order
and resulting judgment. In his respondent’s brief, Bell addresses Leedy’s arguments and
does not contend that he is prejudiced by the apparently erroneous scope indicated in the
notice of appeal. Following the requirement that we liberally construe notices of appeal
(see K.J. v. Los Angeles Unified School District (2020) 8 Cal.5th 875, 882), we construe
the appeal as incorporating the judgment of dismissal.
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Autozone, Inc. (2018) 24 Cal.App.5th 855, 861.) The burden is on plaintiff to establish
such abuse. (Leader v. Health Industries of America, Inc., supra, at p. 612.)
When the trial court heard Bell’s ex parte motion in June, it was aware that Leedy
had been in jail for at least most of the 30-day amendment period. Leedy equates
incarceration with an inability to participate in litigation. However, constitutional and
statutory law allows prisoners to litigate cases. For instance, “[a]ccess to the courts is ‘a
right guaranteed to all persons by the federal and state Constitutions,’” a right that
“extends to prisoners.” (Smith v. Ogbuehi (2019) 38 Cal.App.5th 453, 465.) Moreover,
under the Penal Code, prisoners have a statutory right “[t]o initiate civil actions” as
plaintiffs. (Pen. Code, § 2601, subd. (d); see also 15 Cal. Code Regs., tit 15, § 3123,
subd. (b) [all prisoners “shall be entitled to physical law library access that is sufficient to
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provide meaningful access to the courts”].) Leedy therefore had the presumptive ability
to continue litigating her case from jail, and the trial court did not err in holding her to the
30-day amendment period despite her incarceration.
Leedy’s other arguments do not convince us that the trial court abused its
discretion. Leedy contends that the trial court erred because it failed to take less drastic
actions instead, such as imposing sanctions. But “the circumstance that the trial court
arguably could have exercised its discretion differently does not establish that the manner
in which it did exercise its discretion falls outside the bounds of reason.” (Meeks v.
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These authorities apply specifically to people incarcerated in prison, not
necessarily jail, but no one contends that this distinction makes a difference here.
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Autozone, Inc., supra, 24 Cal.App.5th at p. 868.) The mere fact that the trial court could
have imposed sanctions or taken other actions does not mean its dismissal order was
improper.
Additionally, Leedy takes issue with a comment made by the trial court at the
demurrer hearing, telling Bell’s counsel that “if [Leedy] does not amend within 30 days,
just come back under [section] 581(f)(2) and we’ll dismiss the entire action.” To Leedy,
the statement gave Bell advice on what to do, and it indicated how the court would rule
on a 581(f)(2) motion before one was even filed. We are not persuaded that this
relatively innocuous remark about an obvious procedural matter crosses the line between
reasonable calendar management efforts—which include the duty to move cases
expeditiously to judgment, rather than allowing them to linger on the docket after a
sustained demurrer despite the absence of a timely filed amendment—and inappropriate
advice to one party at the expense of another.
Moreover, nothing about the fact that Bell was prompted by the court to file a
section 581(f)(2) motion if Leedy failed to timely amend tends to show that the decision
to grant such a motion was unreasonable on the facts. To the contrary, on the facts before
the trial court, it is unlikely that any judge would have ruled differently. When the trial
court dismissed the case and later entered judgment, the record before it established only
that Leedy was in jail, and that she had failed to timely amend her complaint. The mere
fact of incarceration does not entitle a party to relief from civil litigation deadlines, and
Leedy had not attempted to show why relief from her deadline to amend her complaint
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might have been warranted. Indeed, she never presented the trial court with the
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opportunity to consider any applicable extenuating circumstances. This case could be
different had she done so. Accordingly, the trial court did not abuse its discretion in
dismissing the case under section 581(f)(2) and entering judgment against her.
III. DISPOSITION
The judgment is affirmed. Bell is awarded his costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
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Although Leedy filed a motion for reconsideration pursuant to Code of Civil
Procedure 1008 about two weeks after leaving jail, she withdrew it before the court could
hear it, possibly because the motion was filed some two months after Leedy had been
served notice of the dismissal order. (See Code of Civ. Proc., § 1008, subd. (a) [motion
for reconsideration must be made “within 10 days after service upon the party of written
notice of entry of the order”].) Leedy never filed a motion for relief pursuant to Code of
Civil Procedure section 473, subdivision (b). (See Code of Civ. Proc., § 473, subd. (b)
[“The court may, upon any terms as may be just, relieve a party . . . from a judgment,
dismissal, order, or other proceeding taken against him or her through his or her . . .
excusable neglect. Application for this relief shall be accompanied by a copy of the
answer or other pleading proposed to be filed therein, otherwise the application shall not
be granted, and shall be made within a reasonable time, in no case exceeding six months,
after the judgment, dismissal, order, or proceeding was taken.”].)
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