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Court of Appeal:
Mislabeled Amended Complaint Should Not Have Been Axed
Opinion Says Liberality Should Have Been Accorded Pro Per Plaintiffs
By a MetNews Staff Writer
Parents who sued over the alleged sexual abuse of their daughter at a preschool fumbled in their attempt to represent themselves, Div. Three of the First District Court of Appeal has observed, but declared that a Superior Court judge erred in dismissing their complaint after they failed to replead timely following the sustaining of a demurrer with leave to amend.
A belated filing of an amended complaint, under decisional law, does not justify a dismissal, Justice Carin T. Fujisaki wrote, saying that the trial judge mistakenly regarded a pleading labeled as “revised” to be other than what it was—an amended complaint—and that he was remiss in not showing liberality toward the plaintiffs based on their lack of skill in the English language.
The opinion, filed Thursday, reinstates a lawsuit filed by Junhai Bai and Xiaofei Li against Commodore Stockton Early Education School (construed to be an action against the San Francisco Unified School District) and the teacher who purportedly committed misconduct, Stephanie Yip.
Unopposed Demurrer
On April 27, 2023, San Francisco Superior Court Judge Richard B. Ulmer Jr. sustained an unopposed demurrer to the complaint, citing the plaintiffs’ failure to show an injury to themselves—they did not sue on behalf of their child—the lack of an allegation that they had filed a claim against a public entity before suing, as required by the Government Claims Act, and neglecting to specify a cause of action or a statutory basis for liability. Although Ulmer, in sustaining a demurrer (as well as granting a motion to shrike) gave leave to amend, he did not specify the number of days within which a new pleading was to be filed.
However California Rules of Court, rule 3.1320(g) provides, with exceptions that don’t apply:
“Following a ruling on a demurrer, unless otherwise ordered, leave to answer or amend within 10 days is deemed granted….”
Notice of the ruling was served on the plaintiffs on May 15, 2023; on June 20, 2023, they filed what was termed, “Revised prosecution materials for physical child abuse by teachers”; the defendants on Aug. 28 moved for a dismissal under Code of Civil Procedure §581 for failure to timely amend the complaint; no opposition was filed; and on Sept. 25, Ulmer granted their motion.
1994 Decision
The First District panel decided the appeal on the basis of an issue not raised by the parties after giving notice of its inclination to do so and affording an opportunity to provide input, as statutorily required. It relied upon a 1994 decision by this district’s Div. Four in Gitmed v. General Motors Corp.
There, then-Justice Gary Hastings (now an arbitrator/mediator) declared that “once the amended pleading is filed, the court must first grant a motion to strike the pleading before the action can be dismissed.”
Ulmer did not strike the “revised” pleading in the present case prior to granting a judgment of dismissal, but did not treat that pleading, in light of its self-characterization, as constituting an amended complaint.
Fujisaki said she “fail[s] to see why” it wasn’t so regarded, pointing out:
“The revised prosecution document satisfied the procedural formatting requirements for pleadings under the Code of Civil Procedure by setting forth the name of the court and county in which the action was brought and the title of the action, with the names of all parties in the title….It also provided a statement of facts and demand for relief, as required for complaints….There is simply no indication in the record that the revised prosecution failed to conform to the procedural requirements for pleadings.”
She went on to say:
“If the original filing was understood to be the complaint, we see no reason why the ‘[r]evised’ version of that filing should not have been regarded as the amended complaint. Even if the revised prosecution document did not cure the defects of the original complaint, that circumstance goes to the sufficiency of the substantive allegations therein, not the effect of the document’s filing.”
The defendants argued in their brief that, under well-established case law, “there is no leeway for self-represented parties,” that they are “entitled to the same, but no greater consideration than other litigants and attorneys” and “must follow correct rules of procedure.”
But, some leeway should have been accorded, under the circumstances, Fujisaki indicated, saying:
“Although plaintiffs appear to have drafted their own filings throughout this case, they have also indicated they are not native English speakers and have sought the assistance of an interpreter. And, with no disrespect intended, the record and briefing before us suggest plaintiffs may have failed to comprehend some of the legal terms and procedures in this case.”
She continued:
“Though the law does not generally require a trial court to specify the time to amend after ruling on a demurrer or motion to strike…, some additional degree of clarity and special care may be necessary to serve the ends of justice and maintain public confidence in the judicial system in cases such as this….And where that clarity has not been provided, the court may relieve a self-represented litigant from their default or noncompliance, particularly where the noncompliance does not affect the substantial rights of the parties.”
The justice said that “we express no opinion on the purported pleading deficiencies in the revised prosecution document except to reinforce some well-settled principles,” citing rules as to liberality in reviewing the sufficiency of pleadings and the drastic nature of killing off a lawsuit based on the seeming frailty of the complaint without considering the prospect of bolstering it through amendment.
The case is Bai v. Yip, 2024 S.O.S. 3812.
The opinion erroneously lists San Francisco Superior Court Presiding Judge Anne-Christine Massullo as the trial judge in the case.
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