ROBERT ERWIN WARE v. ANITA AVILES (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Robert Erwin Ware appeals from an order dismissing his action with prejudice after he failed to file a third amended complaint within the time ordered by the superior court.   He contends that the superior court erred in relying upon Code of Civil Procedure section 581, subdivision (f)(2) to dismiss his action.¹  Because Ware forfeited his right to appeal by failing to challenge the dismissal in the superior court and because the order can be sustained on an alternative ground, we affirm.

FACTUAL AND PROCEDURAL HISTORY

On May 15, 2009, Ware filed a second amended complaint (SAC) against the City of Compton and respondent Anita O. Aviles seeking damages and a peremptory writ of mandate.   In the SAC, Ware alleged that he worked as a probationary employee in the Compton City Attorney's Office from September 15, 2008 to February 4, 2009.   Ware further alleged that Aviles, who was his immediate supervisor, defamed him by stating that Ware was going to shoot and kill her.   He also alleged that Aviles submitted a false performance evaluation on his work.   Finally, Ware alleged that he was refused a “ ‘name-clearing’ ” hearing and rejected from probation.

On May 29, 2009, defendants filed a demurrer to the SAC and a special motion to strike the SAC as a “SLAPP” suit pursuant to section 425.16.   The trial court granted the special motion to strike as to four of the five causes of action that were pled in the SAC. The court denied the motion to strike as to the defamation cause of action against Aviles.

On July 23, 2009, Ware was served with notice:  (1) that the superior court had overruled the demurrer to the first cause of action for defamation in the SAC;  (2) that the demurrer to the remaining causes of action was rendered moot by the superior court's order granting defendants' special motion to strike;  and (3) that Ware had 20 days to amend the SAC to “allege a cause of action for defamation only, which cause of action shall not be based upon the performance evaluations of plaintiff by Aviles, which are privileged.”

Ware appealed the superior court's ruling on the special motion to strike.   Aviles filed a cross-appeal from the denial of the special motion to strike as to the cause of action for defamation.   Ware, Aviles, and the City of Compton subsequently entered into a written settlement agreement and stipulated to the dismissal of their appeals.   On December 8, 2009, this court issued a remittitur pursuant to the stipulation for dismissal.   On December 11, 2009, Ware unilaterally revoked the settlement.

Four days later, Aviles filed in the superior court an “EX PARTE APPLICATION TO DISMISS ACTION FOR FAILURE TO AMEND.”   In the application, Aviles alleged that Ware had failed to amend his SAC within the time required by the superior court's ruling.   Ware was telephonically informed of the ex parte application.   Ware filed no opposition and did not appear at the hearing on the application to dismiss.   The superior court granted the application and dismissed the SAC with prejudice.

Ware did not seek reconsideration of the dismissal order, but he did file a motion to set aside the dismissal.   Aviles filed an opposition to the motion.   Subsequently, Ware moved to take off calendar the hearing on his motion to set aside the dismissal of his SAC. On February 16, 2010, Ware filed an appeal from the superior court's dismissal of his SAC.

DISCUSSION

Ware's sole contention on appeal is that the superior court erred in relying upon section 581, subdivision (f)(2), to dismiss his action with prejudice.  Section 581, subdivision (f) provides in relevant part that “[t]he court may dismiss the complaint as to that defendant when ․ [¶] ․ [¶] ․ (2) ․, after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal.” (§ 581, subd. (f).)  Ware contends that the demurrer to his SAC was not sustained with leave to amend.   Rather, the superior court “overruled” the demurrer as to the cause of action for defamation and required Ware to amend that cause of action within 20 days.   According to Ware, this prevented the superior court from dismissing his action under section 581, subdivision (f)(2).   However, Ware never made this argument in the court below and thus has forfeited this claim of error.

Moreover, we conclude that Ware has forfeited his right to appeal the order because he failed to challenge the dismissal with prejudice in the superior court.  (See Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 283 [appellants forfeited their appellate rights with respect to certain claims when they “acquiesced in th[e] dismissal of their ․ claims by failing to pursue the claims after the bifurcated court trial on other issues had ended;  by failing to object in some way to the form of the judgment dismissing the claims when given the opportunity;  by failing to bring what they now claim to be error to the trial court's attention by request for statement of decision or posttrial motion;  or by failing to seek relief from the dismissal in the trial court”].)   Here, Ware filed no opposition to the ex parte application to dismiss his action.   He did not appear at the hearing on the application.   Nor did he file a motion seeking reconsideration of the court's order dismissing his action with prejudice.   Ware did file a motion to set aside the dismissal order, but he withdrew that motion before the superior court held a hearing.   Thus, by failing to oppose the dismissal of his action in the trial court Ware has forfeited his right to appeal the dismissal order.

Even had Ware not forfeited his appellate rights, the superior court's order can be affirmed on an alternative ground.  (See Shaw v. County of Santa Cruz, supra, 170 Cal.App.4th at p. 269[“[W]e will affirm a judgment correct on any legal basis, even if that basis was not invoked by the trial court.”].) Section 581, subdivision (f)(4) provides that the superior court may dismiss an action when “[a]fter a motion to strike the whole of a complaint or portion thereof is granted with leave to amend the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal.”   Here, the superior court had granted defendants' special motion to strike in part and gave Ware leave to amend the remaining cause of action within 20 days.   Ware failed to do so.   Thus, the superior court had discretion under section 581, subdivision (f)(4) to dismiss the action with prejudice.   Ware has not shown that the superior court abused its discretion when it dismissed his action with prejudice.   His sole argument on appeal is that the superior court lacked legal authority under section 581, subdivision (f)(2) to dismiss his action with prejudice;  even if true, that argument would not affect the superior court's authority to dismiss under section 581, subdivision (f)(4).   In short, we find no abuse of discretion.

DISPOSITION

The superior court's order dismissing appellant's action with prejudice is affirmed.   Costs are awarded to respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

We concur:

FOOTNOTES

FN1. All further statutory citations are to the Code of Civil Procedure, unless otherwise stated..  FN1. All further statutory citations are to the Code of Civil Procedure, unless otherwise stated.

EPSTEIN, P. J. WILLHITE, J.