RANDALL PITTMAN v. DIAGNOSTIC PRODUCTS CORPORATION (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Plaintiff Randall Pittman appeals from orders denying his motions to set aside the judgments in these three cases, which are consolidated on appeal.   In his opening brief, Pittman did not explain why he believes the trial court erred in denying his motions to set aside the judgments.   Instead, he focused on his challenges to the merits of the judgments and post-judgment orders denying his motions to disqualify the trial judge.   After Pittman filed his opening brief, we granted defendants' motion to dismiss Pittman's appeals from the judgments as untimely, and his appeals from the orders denying disqualification as improper appeals from nonappealable orders.   Defendants thereafter emphasized in their brief that Pittman had not addressed the merits of the trial court's orders denying his motions to set aside the judgments—the only rulings which remain at issue on appeal.   Pittman did not file a reply brief.   Apparently Pittman has abandoned the remaining portions of his appeals since he has not presented any argument regarding the manner in which the trial court purportedly erred in ruling on his motions to set aside the judgments.   Based on our review of the record, we find no error.   Accordingly, we affirm.

BACKGROUND

In April 2006, Pittman filed an action against Diagnostic Products Corporation (DPC) and several individuals who worked for DPC (collectively, defendants).   Pittman alleged that he was employed as a helpdesk analyst at DPC from September 8, 2003 until his wrongful termination on January 12, 2005.   In his first amended complaint, he asserted 24 causes of action against the individuals and/or DPC, including disability, religious and race discrimination, harassment and retaliation.   He also alleged that defendants violated the Labor Code by unlawfully withholding wages, failing to provide him with meal and rest breaks and refusing to pay overtime.

At the beginning of the litigation, Pittman was represented by counsel.   By the time he opposed defendants' motion for summary judgment, he was representing himself.   On February 26, 2008, the trial court granted defendants' summary judgment motion.   The court entered judgment in favor of defendants on April 15, 2008.   Defendants served and filed notice of entry of judgment on April 21, 2008.   Pittman did not file an appeal from the judgment.

On or about September 23, 2008, Pittman filed a motion to set aside the April 15, 2008 judgment under Code of Civil Procedure section 473, subdivision (b).  He filed the motion in pro. per.   The motion was based on four grounds.   First, he argued that the judgment should be set aside due to his inadvertence in failing “to include the statement ‘I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct’ at the end of his declaration” in opposition to defendants' motion for summary judgment.   He acknowledged the trial court did not indicate that this “omission was a factor in granting” summary judgment.

Second, Pittman argued the judgment should be set aside based on his “own excusable neglect” in relying on his attorneys to conduct discovery.   Pittman asserted that he “neglected to conduct adequate discovery to prevail on all of his claims because his attorneys represented to him that they would conduct discovery.”   He argued that, as a result, defendants prevailed on their summary judgment motion.   He did not set forth what discovery his attorneys should have conducted or what facts they might have discovered.

Third, Pittman argued the judgment should be set aside because “he was surprised to discover that [the trial court] had not consolidated all of his actions.”   His other two actions—which we refer to as Pittman II and Pittman III—are described below.   Pittman asserted that the trial court, his own counsel and defendants misled him into believing that his three actions had been consolidated.   Pittman stated that the court could not have entered judgment against him in Pittman I if the cases had been consolidated.   He argued:  “Summary adjudication would have been the only remedy available to the [d]efendants had his claims been properly consolidated.”   He did not argue that the trial court's merits determination in the three cases would have been different if the cases had been consolidated.

Finally, Pittman argued the judgment should be set aside based on “extrinsic fraud” because defendants served him with a copy of the judgment that did not include the amount of costs which were awarded to defendants.   The record indicates that defendants served Pittman with their memorandum of costs.   There is no indication that Pittman ever challenged defendants' request for costs.

Defendants filed an opposition to Pittman's motion to set aside the judgment.   On October 31, 2008, the trial court heard oral argument on the motion and denied it.   The same day, the court stated that it had denied Pittman's motion to disqualify the trial judge, which he filed on October 29, 2008.   This was the third such motion Pittman had brought since July 17, 2008, asserting that the judge was biased against him.   The court rejected the October 29, 2008 motion on grounds that it was duplicative of prior motions the court already had denied.

On December 4, 2008, Pittman filed his notice of appeal in this matter.   He stated that he was appealing from the October 31, 2008 orders denying his motion to disqualify the trial judge and denying his motion to set aside the judgment.

Pittman II (Super.Ct. No. BC374571)

In July 2007, while Pittman I was pending, Pittman filed this second action against his former employer, which was by that time known as Siemens Medical Solutions Diagnostics, and affiliated company, Siemens AG (collectively, defendants).   He represented himself in all of the proceedings in Pittman II listed herein.   Pittman sought civil penalties under the Labor Code Private Attorneys General Act of 2004 (Lab.Code, § 2698 et seq.) for the same alleged Labor Code violations he had asserted in Pittman I—failure to pay all wages and overtime and provide meal and rest breaks, and retaliation.

On May 23, 2008, defendants filed a motion to dismiss the first amended complaint in Pittman II on grounds that Pittman had “impermissibly split his causes of action in successive suits” and this subsequent action was barred by the doctrines of exclusive concurrent jurisdiction and res judicata.   Pittman filed an opposition to the motion to dismiss.

On June 26, 2008, the trial court heard oral argument on defendants' motion to dismiss and granted it.   Pittman did not file a timely appeal from the order of dismissal.   As set forth below, he filed his appeal nearly nine months later on March 23, 2009.

On December 22, 2008, Pittman filed a motion to set aside the order of dismissal under Code of Civil Procedure section 473, subdivision (b).  He claimed that he had shown his “own excusable neglect” in relying on his former attorneys to consolidate all of his cases, and that he “was surprised to discover that all of his cases had not been consolidated.”

Pittman also argued that the trial court committed prejudicial error in dismissing Pittman II based on res judicata because Pittman I was on appeal.   Pittman was referencing the December 4, 2008 appeal from the order denying his motion to set aside the April 15, 2008 judgment that he filed in Pittman I more than four months after the court dismissed Pittman II.

Defendants filed an opposition to the motion to set aside the order of dismissal.

On January 26, 2009, Pittman filed a statement of disqualification of the trial judge based on bias.   On February 4, 2009, the trial court ordered the statement of disqualification stricken on grounds that it was untimely and demonstrated “no legal grounds for disqualification.”

On February 6, 2009, the trial court heard oral argument on Pittman's motion to set aside the order of dismissal and denied it.

On March 23, 2009, Pittman filed his notice of appeal in this matter.   He stated that he was appealing from the June 26, 2008 order dismissing his first amended complaint, the February 4, 2009 order striking his statement of disqualification of the trial judge and the February 6, 2009 order denying his motion to set aside the order of dismissal.

Pittman III (Super Ct. No. BC383080)

In December 2007, Pittman filed his third action against his former employer.   He was represented by counsel at the beginning of this litigation.   The complaint was styled as a class action, with Pittman as one of two named plaintiffs.   He asserted causes of action based on the same Labor Code violations he had alleged in Pittman I and Pittman II—failures to pay wages and overtime and to provide meal and rest breaks, among other things.

On February 29, 2008, defendant demurred to the complaint on the same grounds raised in Pittman II—that Pittman had impermissibly split his causes of action and this third action was barred by the doctrines of exclusive concurrent jurisdiction and res judicata.

On April 10, 2008, the trial court sustained the demurrer without leave to amend, and subsequently entered judgment in favor of defendant on May 23, 2008.   Pittman did not file a timely appeal from the judgment.   As set forth below, he filed his appeal more than 11 months later on April 30, 2009.

On July 22, 2008, Pittman filed a substitution of attorney form stating that he was now representing himself.

More than nine months after the trial court entered judgment, on March 16, 2009, Pittman filed a motion to set aside the judgment.   Pittman argued that the trial court erred in dismissing this action because (1) his three actions were properly consolidated (in fact they were not);  (2) his co-plaintiff was a “proper plaintiff”;  (3) the court should have granted leave to amend “to find suitable class plaintiffs”;  and (4) there was an appeal pending in Pittman I from the order denying his motion to set aside the judgment.   Pittman also argued that defendant “engaged in fraud to procure the dismissal of this action.”   He asserted that defendant “conspired” with his former counsel to get the action dismissed because his former counsel wanted to (and did) file the same action, but with a different named plaintiff.   On April 22, 2009, the trial court denied Pittman's motion to set aside the judgment.

On April 30, 2009, Pittman filed his notice of appeal in this matter.   He stated that he was appealing from the April 10, 2008 order sustaining defendant's demurrer without leave to amend, the May 23, 2008 judgment in favor of defendant and the order denying his motion to set aside the judgment.

Appellate Proceedings

At all times, Pittman has represented himself on appeal.

On August 13, 2009, this court granted Pittman's motion to consolidate these three appeals.

On May 6, 2010, Pittman filed his opening brief.   He contends on appeal that (1) he was denied his right to have his cases heard by an impartial judge;  (2) the trial court in Pittman I abused its discretion in sustaining defendants' objections to the evidence he presented in opposition to the summary judgment motion;  (3) the trial court in Pittman I erred in granting summary judgment;  (4) the trial court in Pittman II erred in dismissing the action;  and (5) the trial court in Pittman III abused its discretion in dismissing the action.

On June 7, 2010, defendants filed a motion to dismiss portions of Pittman's three appeals as untimely and/or as appeals from nonappealable orders.   Pittman filed an opposition.   On July 8, 2010, this court dismissed the appeals from the judgments/order of dismissal in Pittman I, II and III as untimely.   This court also dismissed the appeal from the order denying the motion to disqualify the trial judge in Pittman I, and the appeal from the order striking the statement of disqualification in Pittman II because the orders are not appealable.

In the respondents' brief, defendants point out that the only remaining portions of Pittman's three appeals are his challenges to the orders denying his motions to set aside the judgments/order of dismissal in Pittman I, II and III. Defendants note that Pittman did not address in his opening brief why he believes any of those orders should be reversed.

We granted Pittman three extensions to file his reply brief, from August 30, 2010 to December 29, 2010.   We denied Pittman's fourth request for an extension.   Pittman did not file a reply brief.¹

DISCUSSION

In his opening brief, Pittman contends that the trial court erred in entering judgment against him in Pittman I, II and III. These issues are not before us on appeal.   Pittman did not file a timely appeal from the judgments.  (See Cal. Rules of Court, rule 8.104(a) [notice of appeal must be filed within 60 days after service of notice of entry of judgment or 180 days after entry of judgment].)   In Pittman I, the trial court entered judgment against Pittman on April 15, 2008.   Pittman filed his appeal more than seven months later on December 4, 2008.   In Pittman II, the trial court entered the order of dismissal on June 26, 2008.   Pittman filed his appeal nearly nine months later on March 23, 2009.   In Pittman III, the trial court entered judgment against Pittman on May 23, 2008.   Pittman filed his appeal more than 11 months later on April 30, 2009.   Accordingly, on June 7, 2010, we granted defendants' motion and dismissed Pittman's appeals from the judgments/order of dismissal as untimely.  (Cal. Rules of Court, rule 8.104(b) [“If a notice of appeal is filed late, the reviewing court must dismiss the appeal”].)

The matters before us on appeal are Pittman's appeals from the orders denying his motions to set aside the judgments in each of the three cases.   In the “argument” section of his opening brief, Pittman does not address the merits of these motions at all.   He asserts that the trial judge was biased against him, but he does not reveal what it is that he believes is legally incorrect about the orders denying his motions to set aside the judgments.

In the respondents' brief, defendants note that Pittman's opening brief does not address why he believes any of the orders denying his motions to set aside the judgments should be reversed.   Defendants argue that Pittman waived these issues on appeal by not addressing them in his brief.   Defendants also discuss the merits of each motion and argue that the trial court correctly denied each motion.

Where an appellant fails “to articulate any pertinent or intelligible legal argument in an opening brief,” the court may deem the appeal abandoned and dismiss it.  (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119.)   Pittman articulates legal arguments supporting his challenges to the merits of the judgments entered against him in Pittman I, II and III—matters not before us on appeal.   But he articulates no legal arguments in support of his appeals from the orders denying his motions to set aside the judgments—the only matters before us on appeal.   Therefore, we conclude that Pittman has abandoned his appeals from the orders denying his motions to set aside the judgments in Pittman I, II and III.

Rather than dismiss the remaining portions of Pittman's appeals as abandoned, we affirm the orders.   Based on our review of the record, we find that the trial court did not err in denying Pittman's motions to set aside the judgments.

Pittman I

In his motion to set aside the judgment in Pittman I, Pittman did not demonstrate that the judgment was entered against him due to his “mistake, inadvertence, surprise or excusable neglect” within the meaning of Code of Civil Procedure section 473, subdivision (b).  As set forth above, Pittman stated that he inadvertently failed to sign his declaration under penalty of perjury in opposition to defendants' summary judgment motion.   The record does not demonstrate that this played any part in the trial court's decision to grant summary judgment, as Pittman acknowledged in his motion.

Pittman also argued that judgment was entered against him because he failed to conduct adequate discovery because he relied on his former attorneys' representation that they would conduct discovery.   He did not reveal what discovery he believes his attorneys should have conducted or what facts his attorneys might have discovered.   In any event, his alleged reliance on his attorneys' representations that they would conduct appropriate discovery does not constitute “excusable neglect” under section 473.  (See In re Marriage of King (2000) 80 Cal.App.4th 92, 120 [“To the extent appellant's claims are based on the alleged negligence and malfeasance of her attorney or any purported failures to pursue adequate discovery, these claims are not grounds for setting aside a judgment under section 473.”].)

Pittman also stated that he was “surprised to discover that [the trial court] had not consolidated all of his actions.”   Based on the documents he presented in support of his motion his “surprise” was not justified.   He pointed to a February 8, 2008 minute order in Pittman II stating that Pittman I and Pittman II were “related.”   That same minute order also states:  “This order is made without prejudice to the parties making a motion to consolidate in the assigned department.”   His “impression,” based upon his review of this minute order, “that all of [his] cases had been consolidated” was unfounded.   No motion to consolidate the cases was made.   Regardless, Pittman did not argue that the trial court would have reached a different decision on the merits of his actions had they been consolidated.

Finally, Pittman argued that the trial court should set aside the judgment based on “extrinsic fraud” because defendants served him with a copy of the judgment that did not include the amount of costs which were awarded to defendants.   The record indicates that defendants served Pittman with their memorandum of costs, and there is no indication that Pittman ever challenged defendants' request for costs.   The argument is nonsensical in that Pittman asked the trial court to set aside the order granting summary judgment based on alleged events which occurred after judgment was entered.

The trial court did not abuse its discretion in denying Pittman's motion to set aside the judgment in Pittman I. “The standard for appellate review of an order denying a motion to set aside under section 473 is quite limited.   A ruling on such a motion rests within the sound discretion of the trial court, and will not be disturbed on appeal in the absence of a clear showing of abuse of discretion, resulting in injury sufficiently grave as to amount to a manifest miscarriage of justice.”  (In re Marriage of King, supra, 80 Cal.App.4th at p. 118.)

Pittman II

Pittman did not present any valid reason for the trial court to set aside the order of dismissal in Pittman II under section Code of Civil Procedure section 473, subdivision (b).  He claimed that he had shown his “own excusable neglect” in relying on his former attorneys to consolidate all of his cases, and that he “was surprised to discover that all of his cases had not been consolidated.”   As we already discussed, the trial court properly rejected that argument.

Pittman also asked the court to revisit the merits of its decision to dismiss the case, but cited no authority which would allow the court to do that.

Pittman III

Pittman filed his motion to set aside the judgment in Pittman III more than nine months after the judgment was entered.   Pittman did not make any arguments under Code of Civil Procedure section 473, subdivision (b), as motions under that statute “shall be made within a reasonable time, in no case exceeding six months, after the judgment ․ was taken.”

Pittman presented no valid reason for the trial court to set aside the judgment and the court properly denied the motion.   Pittman argued that defendant “engaged in fraud to procure the dismissal of this action.”   He asserted that defendant “conspired” with his former counsel to get the action dismissed because his former counsel wanted to (and did) file the same action, but with a different named plaintiff.   The evidence to support his theory was lacking.   No evidence supports his claim that the dismissal of his action was the result of any fraud.   Simply stated, the trial court dismissed his action because Pittman had asserted the same claims against the same defendant for the third time.

Pittman also complained that the trial court erred in dismissing his action.   The court appropriately declined to reevaluate its decision to sustain the demurrer.

The record does not demonstrate that the trial court erred in denying the motion to set aside the judgment/order of dismissal in Pittman I, II or III.

DISPOSITION

The orders are affirmed.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. On October 20 and December 27, 2010, Pittman filed notices in this court of his purported “removal” of these matters to federal court.   There is no authority which would allow Pittman to remove these actions to federal court at this stage of the proceedings.   Furthermore, we reject Pittman's contention that these appeals should be stayed pending resolution of matters in federal court.   We have not been informed of any federal court proceedings which would have any bearing on the matters before us..  FN1. On October 20 and December 27, 2010, Pittman filed notices in this court of his purported “removal” of these matters to federal court.   There is no authority which would allow Pittman to remove these actions to federal court at this stage of the proceedings.   Furthermore, we reject Pittman's contention that these appeals should be stayed pending resolution of matters in federal court.   We have not been informed of any federal court proceedings which would have any bearing on the matters before us.

ROTHSCHILD, Acting P. J. JOHNSON, J.