Can a plaintiff who failed to oppose a demurrer still win an appeal of the judgment of dismissal?

After a court sustains a demurrer with leave to amend, the plaintiff has a limited period of time in which to amend the complaint. Unless the court orders a different deadline, a plaintiff has leave to amend the complaint within 10 days. Note that for actions in forcible entry, forcible detainer, or unlawful detainer, 5 calendar days to amend is deemed granted. (Cal. Rule Court 3.1320, subd (g).) If the plaintiff fails to amend the complaint within the deadline or at all, the defendant(s) may move ex parte for dismissal of the action. (Cal. Rule Court 3.1320, subd (h).) A plaintiff cannot appeal directly from the Order sustaining the demurrer without leave to amend, but can take an appeal from the judgment of dismissal.

Can a plaintiff ever successfully appeal the dismissal of the action if the plaintiff did not even file an opposition to the demurrer? In nonpublished cases, California courts have stated that the plaintiff’s failure oppose the demurrer was not fatal to the appeal.

In the nonpublished case of Bretches v. OneWest Bank 2012 WL 6616478, the plaintiffs/appellants did not file an opposition to the demurrer to the second amended complaint. The Court of Appeal noted that ordinarily, a party’s failure to oppose a motion at the trial court would constitute waiver of appellate review. [Citation.] A special rule, however, applies to demurrers. Under Code of Civil Procedure section 472c, subdivision (a), “ ‘[a] trial court’s order sustaining a demurrer without leave to amend is reviewable for abuse of discretion “even though no request to amend [the] pleading was made.” [Citation.] While it is the plaintiff’s burden to show “that the trial court abused its discretion” and “show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading” [citation], a plaintiff can make “such a showing … for the first time to the reviewing court” [citation].’” (Bretches, supra, at *4.) The Court reversed the dismissal and instructed on remand that appellants be permitted to file a third amended complaint for certain causes of action.

See also the nonpublished case of Shipman v. Napa County 2011 WL 5307404 in which the Court of Appeal vacated the judgment of dismissal even though plaintiffs/appellants had not filed any written opposition to the demurrer.

Thus, where a demurrer is sustained without leave to amend and even where the plaintiff failed to oppose the demurrer, a showing that the complaint can be amended to state a claim may be made in the first instance to the appellate court. However, the plaintiff must prove to the Court of Appeal that the complaint can actually be amended to state a valid cause of action. An experienced attorney can help you analyze whether any of the causes of action in your complaint can be amended to state a valid claim.

Ex Parte Applications in Federal Court

As in California state court, ex parte applications may be made in federal court. However, they are proper only in limited situations, such as ministerial matters (e.g., to file an oversized brief), scheduling matters (e.g., to shorten time or extend time to plead), and genuine emergencies (e.g., temporary restraining orders). Ex parte applications in federal court generally follow the same format as in California state court. The application should contain a memorandum of points and authorities, supporting declaration(s), and a proposed order. Local Rules should always be checked for your district.

As in California state court, a party applying ex parte must make a reasonable effort, by telephone or in writing, to notify all other parties of the application. The declaration supporting the application must show the efforts to contact other counsel and whether any other counsel, after being advised of the date and substance of the proposed ex parte application, opposes the application.

If notification could not be not given, the declaration should set forth facts showing some reasonable excuse. Sometimes, there are reasons why the party applying for the order should not be required to inform the opposing party in advance (e.g., prejudgment attachment based on reasonable grounds to believe property will be transferred). (See FRCP 65(b); CD CA Rules 7–19 through 7–19.2; SD CA Rule 83.3(h); see also ND CA Rule 7–10.)

Should you list Doe Defendants in federal court complaints?

No. While naming “Does from 1 through 50, inclusive,” may be a common practice in California state court complaints, naming Doe defendants is generally not done in federal court. The naming of Doe defendants in federal question cases should be permissible when the complaint alleges why a defendant’s real name was not known. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 390, fn. 2 (1971). However, some federal courts have dismissed claims against Doe defendants, holding that Doe pleading is improper in federal court. See Graziose v. Am. Home Prod. Corp., 202 F.R.D. 638, 643 (D. Nev. 2001) (finding that there is no provision in the federal rules permitting the use of fictitious defendants).

Even when permissible, a federal court may limit the number of Doe defendants that can be listed in a complaint. In the Central District of California, Local Rule 19-1 provides that no complaint or petition shall be filed that includes more than ten (10) Doe or fictitiously named parties. The Eastern, Southern, and Northern Districts of California currently have no Local Rules addressing the number of Doe defendants that may be named in a complaint or petition.

Instead of naming a laundry list of Doe defendants, as is typical in CA state court, federal practitioners should instead move under FRCP 15 to amend the complaint before trial to add newly discovered defendants.

Lost in state court? Under the Rooker-Feldman doctrine, you don’t get second chances in federal court.

A litigant may lose in state court, whether at trial or on a motion to dismiss, and decide to give it a second try by refiling the case in federal court. Pro se litigants are more likely to seek second chances in federal court. A state court loser might, for example, file an expanded suit in federal court with additional claims that were not decided by the state court.  Pro se litigants have also filed suit in federal court complaining that a state court judge was biased or misapplied the law. Some pro se litigants have even filed suit in federal court seeking to overturn a judgment entered pursuant to a stipulated settlement, claiming that the state court settlement was procured as a result of fraud or duress.

Under the Rooker-Feldman doctrine, lower federal courts do not have subject matter jurisdiction to review state court judgments. Rather, the only federal court that can review state court judgments is the United States Supreme Court. The Rooker-Feldman doctrine arises in two Supreme Court decisions: Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). Federal courts care very much about subject matter jurisdiction and will not hesitate to dismiss a case if jurisdiction is lacking.

In application, the Rooker-Feldman doctrine can be confusing. The most common test used by federal courts is whether the claims now presented before them are “inextricably intertwined” with the state court action. If a claim before the federal court is independent of the state court action, then the federal court may have subject matter jurisdiction to hear the claim.

The Ninth Circuit approach to the Rooker-Feldman can be summarized as follows:

“The Rooker—Feldman doctrine instructs that federal district courts are without jurisdiction to hear direct appeals from the judgments of state courts.” (citation omitted). “The doctrine bars a district court from exercising jurisdiction not only over an action explicitly styled as a direct appeal” and also “the ‘de facto equivalent’ of such an appeal.” (citation omitted). “The purpose of the doctrine is to protect state judgments from collateral federal attack.” (citation omitted). The Rooker–Feldman doctrine applies where a party is: “[1] assert[ing] as her injury legal error or errors by the state court and [2] seek[ing] as her remedy relief from the state court judgment.” (citation omitted).

If a plaintiff is “bring[ing] a forbidden de facto appeal” such that the Rooker–Feldman doctrine applies, the doctrine will not only prohibit the Plaintiff from litigating the de facto appeal, but also any issue that is “inextricably intertwined” with the state court’s judgment. (citation omitted). The “inextricably intertwined” test is only applied if the Court has already determined that Rooker–Feldman applies because the plaintiff is seeking a prohibited de facto appeal. (citation omitted). A claim is “inextricably intertwined” with a state court judgment “if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it,” i.e. “[w]here federal relief can only be predicated upon a conviction that the state court was wrong.” (citations omitted). Thompson v. Santa Cruz County Human Services Dept. 2013 WL 1750960, *5 (N.D. Cal. 2013)(internal citations omitted).

There are exceptions to the Rooker-Feldman doctrine. In Kougasian v. TMSL, Inc., 359 F.3d 1136, 1140 (9th Cir. 2004), the Ninth Circuit held that Rooker–Feldman doctrine did not apply where plaintiff sought relief from a state court judgment based on extrinsic fraud by her adversaries in those proceedings. The court reasoned that “[e]xtrinisic fraud on a court is, by definition, not an error by [the state] court.” Id. at 1141. Similarly in Noel v. Hall, 341 F.3d 1148, 1155 (9th Cir. 2003), the Court held that the Rooker–Feldman doctrine did not bar the plaintiff’s claims alleging that his adversaries in the state court proceedings illegally wire-tapped him because the “plaintiff assert[ed] as a legal wrong an allegedly illegal act or omission by an adverse party.” Id. at 1164.

But where Rooker–Feldman does apply, federal courts are required to decline to exercise jurisdiction over any claim that is inextricably intertwined with the state court’s judgment, even if those claims allege misconduct by an adversary. Thompson v. Santa Cruz County Human Services Dept. 2013 WL 1750960, *8 (N.D. Cal. 2013). In Thompson, the Northern District of California held that the Rooker–Feldman doctrine did apply because Plaintiffs were, in addition to alleging misconduct by adverse parties, also asserting legal errors by the Juvenile Court and seeking relief from its judgment.

The above was only a cursory overview of the doctrine. The point is that anytime a claim presented to federal court has a history in state court, Defendants should pause to consider whether all or part of the suit can be dismissed for lack of subject matter jurisdiction under the Rooker-Feldman doctrine.

Affirmative Defenses in Federal Court Answers

In federal court, as in California state court, the affirmative defenses you list in your Answer will depend on an individualized analysis of the complaint and the facts of the case. Reference to treatises such as California Affirmative Defenses may be helpful. There are no mandatory affirmative defenses that must appear in a federal court Answer. However, you should check the list of suggested affirmative defenses set forth in FRCP 8(c)(1), which reads:

(c) Affirmative Defenses.

(1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including:

• accord and satisfaction;
• arbitration and award;
• assumption of risk;
• contributory negligence;
• duress;
• estoppel;
• failure of consideration;
• fraud;
• illegality;
• injury by fellow servant;
• laches;
• license;
• payment;
• release;
• res judicata;
• statute of frauds;
• statute of limitations; and
• waiver.

“Injury by fellow servant”? Sounds a defense from the 1800s. Of course, you should also include language reserving your right to assert additional affirmative defenses as you discover them. If you need to, you can move under FRCP 15 to amend your Answer.

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