Tuesday, April 14, 2020

Nuno v. CSUB (Cal. Ct. App. - April 13, 2020)

I typically appreciate it when courts are solicitous about parties who make mistakes resulting from procedural confusion, particularly when those litigants are representing themselves.  I like lawsuits to typically be resolved on their merits.  That's the American way.

Notwithstanding that preference, I don't know about this one.

The self-represented litigant here is a full-time professor at Cal State University Bakersfield.  No slouch.  He says he was discriminated against when he wasn't promoted to full professor.  He decides to represent himself both in administrative proceedings and when he files a lawsuit.  Fair enough.

The trial court grants the defendant's demurrer with leave to amend.  Professor Nuno nonetheless fails to amend.  As a result, not surprisingly, the lawsuit gets dismissed.  With, of course, the ability of the plaintiff to appeal the grant of the demurrer.  That's the way it usually works.  Happens thousands of times a year.

But Professor Nuno says that his lawsuit shouldn't have been dismissed not because the demurrer to his complaint was unfounded, but rather because he should have been permitted to file an amended complaint after the deadline set by the trial court had expired.

And the Court of Appeal agrees.  Justice Franson says that the trial court's instructions to the plaintiff were legitimately confusing, so it constituted an abuse of discretion not to give him more time to file his amended complaint.


It all seemed pretty darn clear to me.

In October 2017, plaintiff files his lawsuit.  Defendant files its demurrer in February 2018.  Plaintiff doesn't even oppose the demurrer.  Plaintiff then shows up at the hearing on the demurrer on March 27, 2018 and says that "he did not file an opposition because he had been in communication with attorneys and, by the time they informed him they would not take the case, the deadline had passed."

Needless to say, that's not an excuse, so the court grants the demurrer with leave to amend.  Defense counsel then confirms at the hearing that there's leave to amend and says "We’ll simply wait to see what [plaintiff] has for us in his amended complaint and respond accordingly.”  The trial court goes out of its way to ask the plaintiff if he understands what's going on.  Plaintiff responds:  "I’m sorry, Your Honor. I don’t. What I do have is an extension—or request a motion to—a motion for extension to seek legal counsel and extend plaintiff’s deadline to file the opposition to the demurrer and any other motion as of today.” The trial court responds, nope, we already dealt with that demurrer, it's been granted, so I'm denying that motion to extend your deadline as untimely.  But the trial court expressly reminds the plaintiff that he can nonetheless amend his complaint (hence the "leave to amend") as well as the deadline, saying:  "I’m going to give you 20 days to file an amended complaint.”

Pretty darn clear, no?  So his amended complaint -- if he wants to file one -- is due in 20 days.

After the hearing, defendant prepares a proposed notice of ruling, to which plaintiff objects.  So the plaintiff seems pretty hip on what's going down; he's even objecting to notices of ruling.  And in that objection, on April 2, 2018, plaintiff reiterates his understanding that he's got to amend his complaint, saying that he  "will be filing an amended complaint to support charges of retaliation, harassment, defamation of character, discrimination and homophobia in the workplace.”

Okay, then.  No problem.

Lest there be any doubt:  Three days later, on April 5, 2018, "plaintiff filed a request for extension to amend complaint and seek and retain legal counsel. The document stated: 'Plaintiff requests additional 60 days and replace the original 20 day extension on the date of hearing (March 27, 2018).' Plaintiff also submitted a proposed order. Four days later, the trial court crossed out the portion of the proposed order granting the 60-day extension, stamped the order “DENIED,” and filed it."

Well now.  You can't get much clearer than that, right?  There's 20 days to amend.  Plaintiff says he's going to amend.  He asks for more days.  The trial court says no.  You don't have to be a full-time professor to understand what that means.  No?

Now, on April 28, 2018, there's a case management conference.  Here are the full details about that:

"On April 23, 2018, the trial court held a case management conference. The court asked plaintiff the status on getting an amended complaint filed. Plaintiff (1) referred to the denial of his request for an extension to seek and retain counsel, (2) stated he had been in contact with defense counsel to submit to the court a recommendation of management of the case, but his recommendation was not accepted by defense counsel, and (3) stated he intended to submit his case management statement if the court permitted it. The court, returning to its question, again asked plaintiff the status of getting an amended complaint. Plaintiff said: “Your Honor, in seeking counsel, I’m in the process of doing that.”

Next, the court asked defense counsel if she had anything to add. Counsel acknowledged no amended complaint had been received and stated: “We’re wondering if we should either push this statement [sic] conference out or if we should move to dismiss. We’re just wondering what the Court would prefer to do in terms of waiting for the amended complaint.” The court replied: “My plan today is to push out the case management conference. I’m looking at maybe 45 days out, to June 6th, if that[] works on everybody’s calendar.” Plaintiff stated he was going to be at a conference out of the country and asked “if the Court could provide for three more weeks after that.” The parties agreed on June 27th and the court stated: “So we’ll continue this out to June 27th, 2018. That will be at 8:15 a.m. back here in Department 10.”

Defense counsel then asked: “When should we expect an amended complaint at this point?” The court stated: “I asked twice and I didn’t get an answer, so I’m not sure. I’ll let—[Defense counsel] you do what you need to do in case the amended complaint is not filed. [¶] Mr. Nuno, the responsibility is on you to get that filed.” Plaintiff responded: “Yes, Your Honor. I’m trying.”"

Okay, then.  Plaintiff says he knows his request for more than 20 days was denied.  He's told again that he's got to get on the stick and file his amended complaint.  And the defendant says it's waiting for it.  To boot, the trial court reminds the plaintiff that it's his responsibility to get the thing filed; no excuses.

So, if it were you, you'd file it within 20 days, no?

Now, admittedly, one might say:  "Twenty days from what?"  The common sense answer would be "20 days from when plaintiff was told that the demurrer was sustained, at the hearing on March 27."  But, to plaintiff's benefit, we don't actually work things that way.  Hyptertechnical procedure and all.  The twenty days actually starts only upon entry of the written notice of ruling.  Defendant submitted the proposed order on April 2, 2018, so you might run the 20 days from that.  Or you might even run the 20 days from the hearing on April 23, at which the court again reminded the plaintiff that he had to get on the stick and file the amended complaint.

But, nope, we're more generous than that.  The judge didn't sign the notice of ruling until April 12, 2018.  So does the 20-day clock start then?  Not even!  Even though that order was entered on that date, the defendant didn't mail that notice of ruling to the plaintiff until April 23, 2018.  So the 20-day clock starts running then.  And we even grant the plaintiff an extra five days because the notice is by mail.

So, on April 23, a notice gets mailed that again reminds the plaintiff that the demurrer's been sustained and he's got 20 days to file his amended complaint.  It's literally in writing.  (Though he actually has 25 days since the notice was served by mail.)  Employer says that deadline expires on May 18, 2020.  A date that comes and goes with no filing of an amended complaint.

But plaintiff does feel like filing something.  As the Court of Appeal notes:  "On May 20, 2018, plaintiff completed a case management statement on mandatory Judicial Council form CM-110 for the [upcoming] June 27, 2018 case management conference, which was filed on May 23, 2018. In item 6.c. of the form, plaintiff wrote: “As stated on April 23, 2018 at the last Settlement Conference, I am not available between May 20, 2018 and June 6, 2018 as I will be attending an Educational Conference out of the Country.” Plaintiff’s statement was filed with the court on May 23, 2018. We infer from this statement that plaintiff left the country on May 20, 2018, and would be returning June 6, 2018."

Which is all well and good.  But unless there's an amended complaint, there's not going to be much to do at the CMC, nor will plaintiff's absence out of the country after May 20 really matter.  Remember that the defendant says that amended complaint is due on May 18, 2018.

Regardless, on May 22, 2018, defendant sends an email to plaintiff that says it's going to appear ex parte to get the case dismissed once and for all since there's no amended complaint on file and the deadline has passed.  Now, personally, I don't much like sending an email like that on a date on which you know the plaintiff is out of the country.  But on May 25, defendant shows up at the ex parte -- as does plaintiff, albeit through his partner.  The trial court says:  "Yep, the deadline has passed, and no amended complaint was filed.  Case dismissed."

As I said, the Court of Appeal holds that this was an abuse of discretion since the plaintiff might well have thought that he had until the CMC on June 27 to file his amended complaint.  And there are a snippet of two of the facts that lend some support to that position.  Though, to me, they're fairly much outweighed by the repeated statements that the amendment was due within 20 days.  So my personal sense reading the (cold appellate) record is that the plaintiff knew full well when it was due and just didn't get it done.

There's also apparently one fact that's neither in the opinion nor in the briefing that's maybe consistent with this alternative view as well.  Around this same time, plaintiff filed a federal lawsuit against the same defendant alleging harassment and discrimination.  And in this suit, plaintiff again represented himself.  Guess what happened to that complaint?  It got dismissed on a 12(b)(6) motion in late 2017, with leave to amend.  Did plaintiff ask for additional time (as here) to file the amendment?  Sure, and the court granted the extension, setting a deadline of November 20, 2017 to file the amendment.  And guess whether the plaintiff filed the amended complaint by then?

Yep.  That's right.  He missed that deadline too.

So maybe judges in two separate state and federal proceedings somehow impermissibly made things too confusing for this self-represented litigant notwithstanding setting firm deadlines in writing.

Or maybe, instead, the plaintiff's just not good at complying with deadlines set by the court.

Even though, again, I'm sympathetic to adjudication on the merits, here, it seems to me like it's the latter.  Or at least that a reasonable judge could so conclude.