Metropolitan News-Enterprise


Friday, November 14, 2014


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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Reversal of the ensuing judgment of dismissal came in an unpublished opinion Wednesday by Div.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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