FARNEY v. STOCKTON PORT DIST (1938)

The respondents moved to dismiss the appeal in this proceeding, or to affirm the judgment which was rendered pursuant to an order sustaining its demurrer to a petition for a writ of mandamus without leave to amend the pleading. The motion was presented under the provisions of rule V, section 3, and rule VIII, section 3, of the Rules for the Supreme Court and the District Courts of Appeal of California, for failure on the part of the appellant to print in his opening brief the allegations of his petition upon which he relies for a reversal of the judgment, and because the question to be determined on appeal has been waived and is so unsubstantial as to require no further argument.

The plaintiff filed in the superior court of San Joaquin county a petition for a writ of mandamus to require the Board of Port Commissioners of Stockton Port District to restore his license as a pilot of that district which, it is alleged, was wrongfully revoked by the board without cause and without notice. A general demurrer to the petition was filed on the ground that it fails to state facts sufficient to constitute a cause of action warranting the issuance of a peremptory writ of mandamus. The demurrer was argued by respective counsel, submitted for determination and sustained without leave to amend the pleading. No request for permission to amend the pleading was made by the appellant. A judgment of dismissal of the action was subsequently rendered and entered. From that judgment the petitioner has appealed.

The appellant failed to print in his opening brief any portion of the petition for a writ of mandamus upon the sufficiency of the allegations of which he relies for a reversal of the judgment in this case. Under the provisions of rule VIII, section 3, supra, where an appellant relies on the sufficiency of a pleading to show the alleged error of a trial court in sustaining a demurrer thereto, he is required to print in his opening brief such portions of the pleading “as may be necessary to an understanding” of the issues to be determined on appeal. In the present case the appellant has failed to quote or print in his brief such portions of his petition for a writ of mandamus as he considers adequate to constitute a sufficient cause of action entitling him to the peremptory writ sought. No attempt was made to print any portion of the petition in question. There is therefore a total failure to comply with the provisions of the rule above cited.

Moreover, the appellant waived his right to complain of an abuse of discretion on the part of the trial judge in sustaining the demurrer to his petition for a writ of mandamus without leave to amend the pleading, by failing to request the court to permit an amendment thereto. See v. Joughin, 18 Cal.App.2d 414, 420, 64 P.2d 149, Buckley v. Howe, 86 Cal. 596, 605, 25 P. 132. In the See Case, supra, it is said (page 151): “It is the established rule of law in this jurisdiction that a plaintiff waives a charge of abuse of discretion on the part of the trial judge in sustaining a demurrer to a complaint without leave to amend the pleading, where he fails to ask leave to file such an amendment.”

For the foregoing reasons the judgment is affirmed.

Mr. Justice THOMPSON delivered the opinion of the court.

I concur: PULLEN, P.J.