Friday, November
14, 2014
Page 1
Judge Stratton Denied Due Process to Plaintiff—C.A.
By a MetNews
Staff Writer
The Court of
Appeal for this district has faulted Los Angeles Superior Court Judge Maria E.
Stratton for elevating “judicial economy” over a plaintiff’s right to due
process, holding that she erred in making an in-chambers order sustaining a
demurrer, without leave to amend, to a third amended complaint based on a
demurrer that had been filed to the less comprehensive second amended
complaint.
Reversal of the
ensuing judgment of dismissal came in an unpublished opinion Wednesday by Div.
Seven. Justice Fred Woods is listed as the author.
The
decision reinstates an action by Steven Shkolnik against CitiMortgage and
others in connection with the foreclosure on his home and the sale of it.
Self-Represented
Plaintiff
Confronted
with a demurrer to his second amended complaint, Shkolnik, representing
himself, filed an opposition to the demurrer in which he asked that if the
demurrer were sustained, he be granted leave to amend, attaching a copy of his
proposed pleading.
At
a hearing on July 11, 2012, Stratton told the plaintiff:
“Mr.
Shkolnik, you cannot combine a motion to amend the second amended complaint
with the opposition. Those are separate matters. Because of that, the clerk’s
office is not filing either of them. So I’m going to return them to you so that
you can redraft them as separate motions as they should be.”
(The
opinion did not discuss whether this was a correct view of the law.)
Shkolnik
proceeded to file opposition to the demurrer and, separately, a motion for
leave to file a third amended complaint. The defendants filed opposition to the
motion for leave to amend.
Then,
on Aug. 21, 2012, the day before the hearing, Shkolnik, based on new
information, sought leave to file an expanded third amended complaint, with at
least eight new causes of action, attaching a copy. At the hearing, Stratton
set a date by which the defendants could file new opposition, which they did.
In
chambers, Stratton granted leave to file a third amended complaint, then
sustained demurrers to it, without leave to amend, treating the demurrer to the
second amended complaint as applying to the present pleading.
Bases for
Reversal
The
Woods opinion said that Stratton “should not have ‘deemed’ the demurrer to the
second amended complaint ‘applicable’ to the third amended complaint” because
an amended complaint supersedes earlier pleadings.
“Therefore,
when the trial court granted Shkolnik’s motion for leave to file the third
amended complaint, the trial court should have taken the demurrer to the second
amended complaint off calendar,” the opinion declared.
It
went on to point out:
“Instead
of taking the demurrer off calendar, the trial court, under the rubric of ‘the
interests of judicial economy,’ treated the demurrer to the second amended
complaint as a demurrer to the third amended complaint, and then, without
allowing the parties the opportunity to brief and argue the merits of the
demurrer, sustained the demurrer without leave to amend. The trial court did so
without requiring the CitiMortgage defendants to file a demurrer directed to
the new claims and allegations in the third amended complaint, and without
giving Shkolnik the opportunity to defend his new claims and allegations. While
the former may be permissible in some circumstances, the latter is not. Thus,
the trial court may have had discretion to treat the CitiMortgage defendants’
demurrer to the second amended complaint as a demurrer to the third amended
complaint, if the CitiMortgage defendants did not object. But the trial court
should have given Shkolnik an opportunity to argue that his new allegations
stated claims. At a minimum, Shkolnik should have had the opportunity to argue
that, because the CitiMortgage defendants’ demurrer was directed to allegations
in a superseded pleading and did not address all of the allegations and causes
of action in the operative pleading, the trial court should overrule the
demurrer.”
The
opinion elaborated:
“We
recognize there may be situations where it is appropriate for the trial court
to deem a demurrer to a superseded complaint a demurrer to a subsequent,
operative complaint, and then proceed to rule on the demurrer. For example, if
the newer, operative complaint contained identical or even substantially
similar allegations and causes of action, or if the newer, operative complaint
did not expand or change the scope of the issues in the superseded complaint,
then a trial court might properly deem a demurrer to the superseded complaint a
demurrer to the operative complaint. That, however, was not the case here.”
Due Process
Denial
The
defendants were afforded the opportunity to respond to Shkolnik’s new version
of a third amended complaint, the opinion noted, without giving Shkolnik a
chance to file a reply to their opposition.
“That
is a due process violation,” the Woods opinion said.
It
added that so was the denial to Shkolnik “of the opportunity to present oral
argument,” observing:
“Something
Shkolnik wrote in an opposition or argued at hearing may have convinced the
court to give him leave to amend on his new causes of action, rather than
sustaining a demurrer to those claims without leave to amend at the first
challenge. Particularly where the defect in a pleading is technical, such as
the lack of specificity in pleading fraud, the opportunity to brief the issues
on appeal is no substitute for the opportunity to supply the requisite factual
allegations.”
Allegations of
Fraud
Lack
of requisite specificity in a new cause of action alleging fraud was one of
Stratton’s two bases for sustaining a demurrer to that cause of action.
“Such
a lack of specificity, however, is easily cured by amendment, and courts
generally give a plaintiff leave to amend after the first pleading challenge,”
the appeals court’s opinion responded.
Her
other basis for invalidating that cause of action was that the allegation of
fraud “has been added anew” and “is derived on factual allegations not a part
of the prior complaints.”
The
Woods opinion remarked:
“The
court, however, had just given Shkolnik permission to add the fraud cause of
action by granting Shkolnik’s motion for leave to file the third amended
complaint that included this cause of action. Thus, this basis for sustaining
the demurrer without leave to amend was erroneous.”
The
case is Shkolnik v. CitiMortgage, B246824.
George
S. Wass represented Shkolnik on appeal and Cathy L. Granger and Constance S.
Trinh of Wolfe & Wyman argued for the defendants.
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