The opinion
Filed 2/18/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
LUKE EDWARD DUMAS, B288554
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BC618191)
v.
LOS ANGELES COUNTY BOARD
OF SUPERVISORS et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Gregory Keosian, Judge. Affirmed.
Luke Edward Dumas, in pro. per., for Plaintiff and
Appellant.
Coleman and Associates and John M. Coleman for
Defendants and Respondents.
INTRODUCTION
Appellant Luke Edward Dumas brought this action
against respondents, the Los Angeles County Board of
Supervisors and the Los Angeles County Sheriff’s Department
(collectively, “the County”), and others, alleging various civil
rights violations. The trial court ultimately dismissed the
complaint based on appellant’s repeated discovery violations.
On appeal, appellant argues the court erred in, inter
alia: (1) failing to notify him of its ruling striking his
statement of disqualification; (2) sustaining the County’s
demurrer in part, despite its failure to meet and confer; (3)
granting the County’s motion to strike his request for
punitive damages without considering his opposition; and (4)
denying his motion to quash a subpoena for his medical
records. We affirm.
BACKGROUND
A. The Complaint and the County’s Demurrer and
Motion to Strike
In 2016, appellant filed a complaint in propria persona
against the County, the County Sheriff, as an individual, and
others, asserting several causes of action relating to
appellant’s 2015 arrest by sheriff’s department deputies.
Among other things, the complaint alleged the defendants
caused appellant physical and emotional injuries, and
requested punitive damages.
The County concurrently demurred and moved to strike
appellant’s request for punitive damages. In a declaration
2
attached to the demurrer, the County’s counsel stated he had
sent “a written Meet and Confer request” to appellant, but
had received no response. Appellant filed oppositions to both
the demurrer and the motion to strike. As to the demurrer,
appellant appeared to complain, inter alia, that counsel did
not call him to meet and confer.
The trial court, Judge Gregory Keosian, sustained the
demurrer in part without leave to amend, dismissing one
cause of action as invalid, and dismissing the County Sheriff
as a defendant because he could not be liable for his
subordinates’ actions. The court did not address appellant’s
apparent challenge to the meet and confer process. The court
also granted the County’s motion to strike, reasoning that
public entities cannot be held liable for punitive damages.1
(See Gov. Code § 818 [“Notwithstanding any other provision
of law, a public entity is not liable for . . . damages imposed
primarily for the sake of example and by way of punishing the
defendant”].)
B. Appellant’s Motion to Quash and Statement of
Disqualification, and the Court’s Dismissal of
the Complaint
During discovery, the County noticed appellant’s
deposition and subpoenaed his medical records from a third
party. Appellant moved to quash the subpoena, arguing that
1 In so doing, the court incorrectly stated that appellant had
not filed an opposition to the County’s motion.
3
it sought irrelevant information and would violate his right to
privacy if enforced. The trial court denied the motion, noting
appellant’s allegations of physical and emotional injuries.
After appellant failed to appear for his deposition, the
trial court granted the County’s unopposed motion to compel.
On January 23, 2018, appellant filed a statement of
disqualification under Code of Civil Procedure section 170.3.2
In that filing, which demonstrated appellant’s familiarity
with statutory disqualification procedures, appellant
asserted, inter alia, that Judge Keosian was biased against
him as a Mexican-American and a propria persona litigant,
and was partial to the County. Three days later, on January
26, Judge Keosian struck the statement of disqualification as
both untimely and facially disclosing no legal grounds for
disqualification. Appellant did not petition for a writ of
mandate to challenge this ruling.
Later that month, appellant again failed to appear for
his deposition. On February 2, on the County’s motion, the
trial court issued an order to show cause why appellant’s
complaint should not be dismissed for his failure to comply
with the order compelling his deposition. After appellant
failed to appear for the hearing on the order to show cause or
2 Under Code of Civil Procedure section 170.3, if a judge who
should disqualify himself or herself fails to do so, any party may
file a verified statement setting forth facts that constitute grounds
for disqualification. (§ 170.3, subd. (c)(1).) Undesignated statutory
references are to the Code of Civil Procedure.
4
to otherwise respond, the court dismissed the case without
prejudice. Appellant timely appealed.
DISCUSSION
On appeal, appellant contends the trial court
mishandled his statement of disqualification and erred in
partially sustaining the County’s demurrer. He also seeks to
challenge the court’s ruling on the County’s motion to strike
and the denial of his motion to quash the County’s subpoena.
We address his claims in turn.
A. The Statement of Disqualification
Appellant challenges the trial court’s handling of his
statement of disqualification, asserting primarily that he did
not receive notice of Judge Keosian’s ruling. Section 170.1
provides certain grounds for the disqualification of a judge.
Section 170.3 outlines the procedures for determining
disqualification challenges. As noted, under section 170.3, if a
judge who should disqualify himself or herself fails to do so,
any party may file a verified written statement setting forth
facts constituting grounds for disqualification. (§ 170.3, subd.
(c)(1).) The objecting party must file this statement at the
“earliest practicable opportunity” after discovery of the
relevant facts. (Ibid.)
Once a party has filed a statement of disqualification,
the judge has no power to act in the case until the question of
disqualification has been determined. (§ 170.4, subd. (d);
People v. Lind (2014) 230 Cal.App.4th 709, 714 (Lind).) The
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judge may either (1) request another judge on whom the
parties agree to take his or her place, without conceding
disqualification; (2) file a “consent to disqualification”; or (3)
file a “written verified answer admitting or denying any or all
of the allegations . . . .” (§ 170.3, subds. (c)(2) & (3).) If the
judge refuses to recuse, the question of disqualification is
generally to be determined by another judge. (§ 170.3, subd.
(c)(5).) However, under section 170.4, subdivision (b), if the
statement is untimely or on its face discloses no legal grounds
for disqualification, the judge may strike it. (Urias v. Harris
Farms, Inc. (1991) 234 Cal.App.3d 415, 420 (Urias).) “Failure
to take any action within 10 days [is] deemed a consent to
disqualification.” (Hollingsworth v. Superior Court (1987) 191
Cal.App.3d 22, 26 (Hollingsworth); accord, § 170.3, subd. (c)(3)
& (4).) “Thereafter, the judge is deemed disqualified and has
no power to act in the case.” (Hollingsworth, at p. 26.)
The determination of the question of disqualification,
including the striking of the objecting party’s statement under
section 170.4, subdivision (b), is not an appealable order. (See
PBA, LLC v. KPOD, Ltd. (2003) 112 Cal.App.4th 965, 971
(PBA) [appellants were precluded from seeking review of
stricken statements of disqualification on appeal].) A party
seeking review must petition for a writ of mandate “within 10
days after service of written notice of entry of the court’s order
. . . .” (§ 170.3, subd. (d).)
Judge Keosian struck appellant’s statement of
disqualification under section 170.4, subsection (b),
concluding it was both untimely and facially failed to disclose
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grounds for disqualification. Appellant appears to
acknowledge he may not directly challenge this ruling on
appeal. He asserts, however, that he never received notice of
the ruling and was therefore unable to petition for a writ of
mandate. The record does not support this assertion.
In his statement of disqualification, appellant exhibited
familiarity with disqualification procedures, including the
requirement that the challenged judge respond to the
statement in some way within 10 days, and the suspension of
the judge’s power to act in the case until the question of
disqualification has been determined. (See §§ 170.3, subd.
(c)(3) & (4), 170.4, subd. (d); Lind, supra, 230 Cal.App.4th at
p. 714; Hollingsworth, supra, 191 Cal.App.3d at p. 26; Urias,
supra, 234 Cal.App.3d at p. 420.) On February 2, 2018, 10
days after appellant filed his statement of disqualification
(and seven days after Judge Keosian struck that statement),
Judge Keosian issued an order to show cause why the
complaint should not be dismissed. Appellant does not
dispute receiving notice of the order to show cause. His
subsequent failure below to claim he had not received notice
of any action on his statement of disqualification, or to
complain that Judge Keosian had no power to issue an order
to show cause while the disqualification question was
pending, suggests he was in fact aware that Judge Keosian
had stricken the statement. To the extent appellant argues
Judge Keosian erred in striking his statement of
disqualification, that claim is not reviewable on appeal. (See
§ 170.3, subd. (d); PBA, supra, 112 Cal.App.4th at p. 971.)
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B. The Demurrer
Appellant argues the County failed to properly meet and
confer with him before filing the demurrer. He contends that
under section 430.41, the County’s insufficient efforts
required the trial court to overrule the demurrer. Appel-
lant’s contentions regarding the meaning of the statute raise
questions of law subject to de novo review. (See In re T.B.
(2009) 172 Cal.App.4th 125, 129 [interpretation of statute
reviewed de novo].)
Under section 430.41, before filing a demurrer, the
demurring party must meet and confer with the party who
filed the challenged pleading “in person or by telephone” to
determine if the demurring party’s objections can be resolved
by agreement. (§ 430.41, subd. (a)(1).) If the parties are
unable to meet and confer at least five days before the
responsive pleading is due, the demurring party must file a
declaration stating that a good faith attempt to meet and
confer was made and explaining the reasons the parties could
not meet and confer. (Id., subd. (a)(2).) This declaration
results in an automatic 30-day extension of the time to file the
responsive pleading. (Ibid.) However, under section 430.41,
subsection (a)(4), “[a]ny determination by the court that the
meet and confer process was insufficient shall not be grounds
to overrule or sustain a demurrer.” (Ibid.; see also Olson v.
Hornbrook Community Services Dist. (2019) 33 Cal.App.5th
502, 515 (Olson) [relying on § 430.41, subd. (a)(4), in rejecting
claim that party’s failure to meet and confer deprived trial
court of jurisdiction over pleadings]; Weil & Brown, Cal.
8
Practice Guide: Civil Procedure Before Trial (The Rutter
Group 2019) ¶ 7:97.27, p. 7(l)-48 [“failure to sufficiently meet
and confer is not grounds to overrule or sustain a demurrer”].)
In a declaration attached to the County’s demurrer,
counsel described sending appellant a “written Meet and
Confer request” but receiving no response. Appellant
contends this written request did not satisfy section 430.41’s
requirement of a meeting “in person or by telephone.” We
need not address the adequacy of the County’s efforts to meet
and confer, as any insufficiency in the process would not
undermine the trial court’s ruling on the County’s demurrer.
(See § 430.41, subd. (a)(4); Olson, supra, 33 Cal.App.5th at
p. 515.)
Citing no authority, appellant argues section 430.41,
subdivision (a)(4), applies only after the demurring party files
a declaration of inability to meet and confer by the deadline
and obtains the automatic 30-day extension under section
430.41, subdivision (a)(2). He claims that absent this action
by the demurring party, the court may not disregard defects
in the meet and confer process. We disagree.
Nothing in the text of section 430.41, subdivision (a)(4),
conditions its operation on compliance with other provisions.
To the contrary, it instructs that “[a]ny” determination that
the process was insufficient will not be grounds to overrule
the demurrer.3 (§ 430.41, subd. (a)(4); see also Weil & Brown,
3 Of course, trial courts are not required to ignore defects in
the meet and confer process. If, upon review of a declaration
(Fn. is continued on the next page.)
9
Cal. Practice Guide: Civil Procedure Before Trial, supra,
¶ 7:97.27.) Accordingly, the trial court did not err in
sustaining the demurrer in part.4
C. Appellant’s Other Claims
Appellant challenges the trial court’s rulings on the
County’s motion to strike and his motion to quash the
under section 430.41, subdivision (a)(3), a court learns no meet
and confer has taken place, or concludes further conferences
between counsel would likely be productive, it retains discretion to
order counsel to meaningfully discuss the pleadings with an eye
toward reducing the number of issues or eliminating the need for a
demurrer, and to continue the hearing date to facilitate that effort.
(See Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967-
968 [courts have inherent authority to regulate proceedings in
ways consistent with statutes]; § 430.41, subd. (c) [addressing
meet and confer conferences following grant of demurrer with
leave to amend; “Nothing in this section [§ 430.41] prohibits the
court from ordering a conference on its own motion at any time or
prevents a party from requesting that the court order a conference
to be held” (emphasis added)].)
4 Appellant asserts in conclusory fashion that the trial court
abused its discretion by denying him leave to amend. A trial court
abuses its discretion in denying leave to amend if the plaintiff can
show a reasonable possibility of curing the defect in the complaint
by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
Because appellant makes no effort to show he could cure the
defects the trial court identified in his complaint, he cannot
establish the court abused its discretion in denying him leave to
amend. (See Heritage Pacific Financial, LLC v. Monroy (2013) 215
Cal.App.4th 972, 994 [plaintiff has burden to prove amendment
would cure defect in complaint].)
10
County’s subpoena for his medical records. These claims
cannot affect the trial court’s judgment dismissing the case
based on appellant’s failure to respond to an order to show
cause.5 We therefore need not consider those contentions.
(See Kaiser Foundation Health Plan, Inc. v. Superior Court
(2012) 203 Cal.App.4th 696, 715 [“We decline to review an
issue that will have no effect on the parties”]; Shaw v. County
of Santa Cruz (2008) 170 Cal.App.4th 229, 259 [declining to
resolve matters that were unnecessary to appellate decision].)
Moreover, were we to consider appellant’s additional claims,
we would reject them.
As to the motion to strike his request for punitive
damages from the complaint, appellant notes that in granting
the motion, the trial court incorrectly stated he had not filed
5 While appellant generally complains that dismissal of his
complaint was unjust, his opening brief advances no reasoned,
independent challenge to the trial court’s order of dismissal
following his failure to respond to the order to show cause. In his
reply brief, appellant complains that the trial court scheduled the
hearing on the order to show cause for a time in which he had a
trial scheduled in a different case. He has forfeited this contention
by failing to object below and to raise the issue in his opening
brief. (See Perez v. Grajales (2008) 169 Cal.App.4th 580, 591-
592 (Perez); Browne v. County of Tehama (2013) 213 Cal.App.4th
704, 726 [failure to raise argument in opening brief constitutes
forfeiture].) Moreover, at appellant’s request, we have taken
judicial notice of a minute order dismissing the other proceeding
after he failed to appear on the day set for trial. Because
appellant failed to appear in both cases, he cannot claim the
scheduling conflict caused his failure to appear in this case.
11
an opposition. But the court’s oversight did not prejudice
appellant: it granted the motion on the ground that public
entities are not liable for punitive damages, a conclusion
appellant does not challenge on appeal. Because appellant
has shown no prejudice from the trial court’s apparent failure
to consider his opposition, his challenge to the court’s ruling
must fail. (See In re Marriage of Falcone & Fyke (2008) 164
Cal.App.4th 814, 822 [“‘It is a fundamental principle of
appellate jurisprudence in this state that a judgment will not
be reversed unless it can be shown that a trial court error in
the case affected the result’”].)
As for the denial of appellant’s motion to quash the
County’s subpoena, appellant suggests he did not place his
medical records at issue, as would justify the invasion of his
right to privacy, because he did not assert claims for disability
discrimination. But while he did not sue for disability
discrimination, appellant alleged he sustained both physical
and emotional injuries as a result of the County’s conduct,
placing his medical history at issue. To the extent he
suggests the subpoena was overbroad, he has forfeited this
argument by failing to raise it below. (See Perez, supra, 169
Cal.App.4th at pp. 591-592 [“arguments raised for the first
time on appeal are generally deemed forfeited”].)
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DISPOSITION
The judgment is affirmed. The County shall recover its
costs on appeal.
CERTIFIED FOR PUBLICATION
MANELLA, P. J.
We concur:
WILLHITE, J.
CURREY, J.
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