Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC345396, Joseph R. Kalin, Judge.
Mary McFadden, in pro. per., for Plaintiff and Appellant.
Carmen A. Trutanich, City Attorney, Terry Kaufmann-Macias and Amy Brothers, Deputy City Attorneys, for Defendants and Respondents.
KITCHING, J.
INTRODUCTION
Plaintiff Mary McFadden appeals from a judgment entered after the trial court granted the motion for judgment on the pleadings by defendants the City of Los Angeles (City), the Department of Building and Safety of the City of Los Angeles (the Department), and the Board of Building and Safety Commissioners of the City of Los Angeles (the Board). McFadden filed an action for inverse condemnation, wrongful eviction, and deprivation of civil rights arising from the Board’s determination that a house McFadden owned at 1446 West 37th Drive in Los Angeles was a public nuisance, and the subsequent demolition of that house. We conclude that the doctrine of res judicata bars this action, because the judgment in a prior action has adjudicated the claims in this case. McFadden has not shown that the trial court abused its discretion in denying her request for a continuance of the hearing on defendants’ motion for judgment on the pleadings, as that motion was untimely and failed to show good cause for a continuance. McFadden’s complaint does not state a cause of action for extrinsic fraud and cannot be amended to do so. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Mary McFadden owns real property at 1446 West 37th Drive in Los Angeles. From May 1, 1997, through October 18, 2004, the house at the property suffered from building code violations, disrepair, lack of maintenance, vandalization, and use by transients, existed in an open and vacant state subject to unauthorized entry, and was littered with trash, debris, and abandoned vehicles. The Department issued numerous orders to abate these conditions, but nuisance conditions recurred after City contractors cleaned, boarded, and fenced the property.
On November 3, 2004, the Department mailed an “Order to Comply Abatement of Public Nuisance” to McFadden, stating that the property was a public nuisance and requiring McFadden to obtain permits to abate the public nuisance, to complete necessary work within 30 days, and to appear at a hearing before the Board to confirm whether the condition constituted a public nuisance and how much additional time, if any, should be granted for compliance with the order. On the day of the hearing, December 7, 2004, McFadden faxed to the Board a request to continue the hearing. The Board denied that request and McFadden did not appear at the hearing.
At the December 7, 2004, hearing, the Board determined the property constituted a public nuisance and that no additional time should be granted McFadden to abate nuisance conditions. The house was demolished on February 25, 2005.
Petition for Writ of Mandate: On March 4, 2005, McFadden filed a petition for writ of mandate (BS095404) (the writ petition) commanding the Board to rescind its December 7, 2004, decision, hold a new hearing, and pay $700,000 in damages for demolishing the house at the property. On November 8, 2006, the trial court denied McFadden’s writ petition. McFadden appealed to this court, which in McFadden v. Board of Building and Safety Commission (B196818), a decision issued March 13, 2009, affirmed the judgment denying McFadden’s writ petition and ordering entry of judgment for the Board. We shall refer to this decision as McFadden I. The California Supreme Court denied review of McFadden I on June 10, 2009.
Action for Inverse Condemnation, Wrongful Eviction, and Deprivation of Civil Rights: On January 4, 2006, McFadden filed an action (BC345396) for inverse condemnation, wrongful eviction, and deprivation of civil rights (42 U.S.C. § 1983) against the City, the Board, and the Department. That action was stayed pending resolution of the appeal in McFadden I. The stay was lifted on July 27, 2009.
On October 30, 2009, defendants filed a motion for judgment on the pleadings, asserting that based on the Court of Appeal judgment in McFadden I, the res judicata doctrine barred McFadden’s claims challenging the City’s public nuisance determination concerning the house at 1446 West 37th Drive and its demolition.
On December 3, 2009, the parties appeared at the hearing on the motion for judgment on the pleadings. The trial court denied McFadden’s application for a 30-day continuance, and granted the motion for judgment on the pleadings with prejudice. Judgment for defendants was entered on December 28, 2009.
McFadden filed a timely notice of appeal on February 2, 2010.
ISSUES
McFadden claims on appeal that:
1. The trial court’s judgment in the writ petition case was void;
2. A judgment on the pleading cannot lie where the moving party failed to prove that a prior action concerning this case was actually litigated;
3. Res judicata does not bar this action;
4. The trial court abused its discretion in denying a 30-day continuance; and
5. The first amended complaint includes a viable claim for extrinsic fraud.
DISCUSSION
1. McFadden Has Not Shown That the Judgment in McFadden I Was Void For Lack of Jurisdiction
McFadden first claims that the trial court judgment in the writ petition (BS095404) was void because the Board can only review an appeal from the Department’s determination, McFadden never appealed a Department determination, and therefore the Board had no jurisdiction. We conclude that res judicata bars this claim, which has already been adjudicated by this court in McFadden I.
A. Res Judicata (Claim Preclusion)
Res judicata, or claim preclusion, “describes the preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Collateral estoppel, or issue preclusion, ‘precludes relitigation of issues argued and decided in prior proceedings.’ [Citation.] Under the doctrine of res judicata, if a plaintiff prevails in an action, the cause is merged into the judgment and may not be asserted in a subsequent lawsuit; a judgment for the defendant serves as a bar to further litigation of the same cause of action.
“... Under this doctrine, all claims based on the same cause of action must be decided in a single suit; if not brought initially, they may not be raised at a later date. ‘ “Res judicata precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief.” ’ ” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896-897, fn. omitted.)
“ ‘For purposes of res judicata, California applies the primary right theory to define cause of action as: (1) a primary right possessed by the plaintiff, (2) a corresponding duty imposed upon the defendant, and (3) a wrong done by the defendant which is a breach of such primary right and duty. [Citations.] Thus, a single cause of action is based on the harm suffered, rather than on the particular legal theory asserted or relief sought by the plaintiff.’ ” (Boblitt v. Boblitt (2010) 190 Cal.App.4th 603, 610.) A primary right is indivisible: violation of a single primary right gives rise to a single cause of action. (Crowley v. Katleman (1994) 8 Cal.4th 666, 681.) “[I]f two actions involve the same injury to the plaintiff and the same wrong by the defendant then the same primary right is at stake even if in the second suit the plaintiff pleads different theories of recovery, seeks different forms of relief and/or adds new facts supporting recovery.” (Eichman v. Fotomat Corp. (1983) 147 Cal.App.3d 1170, 1174.)
If the matter was within the scope of the earlier action, related to the subject matter and relevant to the issues, so that it could have been raised in the earlier action, the judgment in the earlier action is conclusive on it, even though it was not expressly pleaded. The rational for this rule is that a party cannot by negligence or design withhold issues in a first action and then litigate them in a later action. The rule is that the prior judgment is res judicata on matters which were raised, or which could have been raised, in that prior action. (Amin v. Khazindar (2003) 112 Cal.App.4th 582, 589-590.)
B. McFadden Has Not Shown That the Board, or the Trial Court, Lacked Jurisdiction in McFadden I
McFadden claims that because the Board cannot obtain jurisdiction over a lower agency’s findings unless a person appeals the lower agency’s decision, and she never appealed a Department determination, the Board lacked jurisdiction, making the trial court’s judgment in the writ petition void. First, this court’s decision in McFadden I affirmed the trial court’s judgment, and that judgment is now final. Second, in McFadden I McFadden likewise argued that the Board proceeded without, or in excess of, its jurisdiction. McFadden I rejected this claim, finding that the Board properly conducted a hearing on December 7, 2004, pursuant to Los Angeles Municipal Code sections 91.8907.3.1, 91.8907.3.2, 91.8907.3.3, and 91.8907.3.4, as authorized by section 91.8904.2.2. McFadden is barred from relitigating this claim.
McFadden also claims that if a person appeals an administrative decision, but does not attend the hearing, the Board will dismiss the hearing and sustain the lower agency’s decision. The three cases cited by McFadden do not support this conclusion. Miller v. City of Los Angeles (2008) 169 Cal.App.4th 1373 holds that where a person initiates administrative proceedings, he must exhaust administrative and judicial remedies and cannot dismiss the administrative appeal. When an administrative decision is final and on the merits, it is entitled to collateral estoppel effect in a subsequent court action. (Id. at pp. 1376, 1382-1383.) Zuniga v. Los Angeles County Civil Service Com. (2006) 137 Cal.App.4th 1255 held that where a deputy resigned from the sheriff’s department before his appeal of a decision sustaining his suspension without pay was concluded, the county civil service commission lacked jurisdiction to decide the appeal. Therefore Zuniga affirmed the denial of the deputy’s petition for writ of mandamus challenging the civil service commission decision. (Id. at pp. 1257, 1259-1260.) City of Coachella v. Riverside County Airport Land Use Com. (1989) 210 Cal.App.3d 1277 held that where no specific administrative remedies were available to plaintiff, the failure to exhaust administrative remedies did not bar a city’s mandamus petition seeking to set aside an airport land use plan. Therefore the trial court had jurisdiction to hear and determine the city’s petition. (Id. at pp. 1287-1288.) These cases have no application to this appeal.
McFadden claims that the Department and the Board must issue a final notice and failed to do so, citing Heavenly Valley v. El Dorado County Bd. of Equalization (2000) 84 Cal.App.4th 1323. That case, however, concerns notice to an assessee of a property tax assessment made outside of the regular assessment period pursuant to Revenue and Taxation Code section 1605, and the review period of section 1605, subdivision (e), which is triggered by that notice. Heavenly Valley has no application to this appeal.
Although McFadden argues that the trial court did not have subject matter or personal jurisdiction over issues in the writ petition, McFadden does not explain why the trial court lacked jurisdiction and does not support this claim with reasoned argument, citations to authority, discussion, or analysis. The claim of error is therefore forfeited. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)
McFadden claims that the Department did not issue a written determination for any Department adjudication hearing concerning McFadden’s property at 1446 West 37th Drive. McFadden raised this claim in McFadden I, which determined that the Department issued an “Order to Comply Abatement of Public Nuisance” to McFadden. That order authorized the Department to abate the public nuisance building using procedures in Los Angeles Municipal Code sections 91.8907.2, 91.8907.3, and 91.8907.4, and informed McFadden that she had to appear at a December 7, 2004, hearing conducted by the Board as required by section 91.8907.2.
2. Res Judicata Bars McFadden’s Claim for Damages in the Present Action
McFadden claims that the causes of action in her present complaint, BC345396, concern damages, and that damages were not litigated in McFadden I. This is not correct. McFadden’s petition in McFadden I sought a writ of mandate commanding the Board to rescind its December 7, 2004, decision, to hold a new hearing, and to pay $700,000 in damages for demolishing the house at the subject property. The claim for damages in the present complaint is therefore barred by res judicata, which precludes relitigation of a claim for damages already determined in the previous action.
3. Res Judicata Bars Relitigation of the Inverse Condemnation Claim, and Claims of Error Arising From Causes of Action for Violation of Civil Rights and for Wrongful Eviction of Tenant Are Forfeited
McFadden claims that her causes of action in case BC345396 for inverse condemnation, for violation of her civil rights (42 U.S.C. § 1983), and for wrongful eviction of her tenant differed from the claims, and were not litigated, in McFadden I.
A. Res Judicata Bars Relitigation of the Inverse Condemnation Claim
McFadden’s action for inverse condemnation alleged that she did not receive notice of a public nuisance determination dated December 1, 2004, which violated the Los Angeles Municipal Code and her right to due process. McFadden I addressed this claim, concluded that the December 1, 2004, Board staff member’s letter was not required to be served on McFadden, and found no error. The collateral estoppel doctrine bars McFadden from relitigating this issue in this appeal.
McFadden’s action for inverse condemnation alleged that the Board conducted an administrative meeting on December 7, 2004, without any hearing before an Examiner as required by the Los Angeles Administrative Code, without notice to McFadden, without giving McFadden an opportunity to respond, present evidence, or produce and cross-examine witnesses, and that the Board refused to provide McFadden with the evidence to be produced at the December 7, 2004, proceeding or an explanation of its purpose, of the nuisance, or of any pending assessments.
McFadden I, however, rejected these claims. On November 3, 2004, the Department mailed an “Order to Comply Abatement of Public Nuisance” to McFadden, which stated that her property constituted a public nuisance and required McFadden to obtain permits to abate the public nuisance within 10 days, to complete necessary work within 30 days, and to appear at a hearing before the Board on December 7, 2004. The Order stated that at the hearing McFadden would be given the opportunity to present and elicit testimony and other evidence to show cause why the nuisance should not be abated by the owner or by the City. On November 27, 2004, McFadden signed a return receipt for certified mail, and on the day of the December 7, 2004, hearing, McFadden faxed to the Board a request to continue the hearing (which request the Board denied). Thus McFadden received adequate and timely notice, and had an opportunity to respond, present evidence, produce and cross-examine witnesses.
McFadden I also addressed McFadden’s claim that before the December 7, 2004, hearing, she never received the Board staff report or exhibits submitted to the Board as evidence. First, McFadden failed to make this objection at the Board hearing, and therefore forfeited this claim of error on appeal. Second, there was no requirement that the Board provide McFadden with a copy of the board staff report.
McFadden’s action for inverse condemnation also alleged that defendants destroyed her property without any emergency situation, public necessity or impending peril or imminent and substantial threat to public health or safety. McFadden I found that substantial evidence supported the Board’s findings and determination that the subject property constituted a public nuisance, that no additional time should be granted to the owner to abate that nuisance, that the property was secured pursuant to Los Angeles Municipal Code section 91.8904.1, later became open to unauthorized entry, and was repeatedly used, without the owner’s permission, by vagrants, criminals, or gangs or for other illegal purposes, and that the property owner made no good faith effort to maintain the premises and an extension of time would only extend the violations without regard to the community.
Thus the claim for inverse condemnation, although not denominated as such, was litigated in McFadden I, and the res judicata doctrine bars relitigation in this action.
B. McFadden Has Waived Claims of Error Regarding Her Causes of Action for for Section 1983 Civil Rights Violation and for Wrongful Eviction of Tenant
McFadden’s opening brief contains no authority, argument, discussion, or analysis of causes of action for a 42 United States Code section 1983 civil rights violation and for wrongful eviction of tenant. Any claim of error is therefore waived. (Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943, 947-948.)
4. McFadden Failed to Show Good Cause for a Continuance, and Denial of the Request for a Continuance Was Not an Abuse of Discretion
McFadden claims that the trial court abused its discretion by denying her request for a continuance, made on the day of the hearing on the motion for judgment on the pleadings. We find no abuse of discretion.
Having stayed the action pending the outcome of the writ petition proceeding, when the judgment in McFadden I became final the trial court lifted the stay on July 27, 2009. On October 30, 2009, defendants filed their motion for judgment on the pleadings, with a hearing set for December 3, 2009. McFadden filed opposition on November 23, 2009. On the day of December 3, 2009, hearing, McFadden filed an ex parte application for a continuance. The trial court denied McFadden’s application.
There is no right to a continuance as a matter of law. (Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170 (Mahoney).) Continuances are disfavored, and the trial court may grant a continuance “only on an affirmative showing of good cause requiring the continuance.” (Cal. Rules of Court, rule 3.1332(c).) “Reviewing courts must uphold a trial court’s choice not to grant a continuance unless the court has abused its discretion in so doing.” (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823.) The party whose request for a continuance was denied bears the burden of showing an abuse of discretion because of the failure to grant a continuance. (Mahoney, at p. 170.)
McFadden’s ex parte motion to continue the hearing on the motion for judgment on the pleadings did not explain why the motion to continue was made on the day of the hearing or why it could not have been made earlier. “The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.” (Cal. Rules of Court, rule 3.1332(b).)
McFadden’s motion for a continuance explained that the motion was made because McFadden had not yet read defendants’ motion for judgment on the pleadings in its entirety; a continuance was needed to allow McFadden time to write a supplemental brief on defendant’s motion for judgment on the pleadings; to allow defendants time to respond to the McFadden’s proposed addition of two new defendants to the complaint; and to allow McFadden to receive admissions and responses to interrogatories from the Department.
McFadden explained that she had not read defendants’ motion for judgment on the pleadings because she did not have enough time since the October 30, 2009, filing of that motion. McFadden, however, had filed opposition to the motion for judgment on the pleadings on November 23, 2009, and did not explain why she waited until the day of the hearing to file her motion to continue the hearing. Therefore McFadden failed promptly to request a continuance upon ascertaining the need for a continuance and failed to establish good cause for a continuance. (Mahoney, supra, 223 Cal.App.3d at p. 172.)
McFadden filed her notice of errata, which included proposed addition of two new defendants to the complaint, on November 24, 2009, but did not explain why she waited until December 3, 2009, the day of the hearing on the motion for judgment on the pleadings, to make her motion to continue the hearing.
McFadden also sought a continuance to allow defendants’ responses to interrogatories and requests for admissions, which were due on December 9, 2009. McFadden did not indicate how defendant’s responses would be relevant to her opposition to the motion for judgment on the pleadings and its contention that res judicata barred this action.
We conclude that the trial court did not abuse its discretion in denying McFadden’s request for a continuance.
5. The First Amended Complaint Does Not State a Cause of Action for Extrinsic Fraud and Cannot Be Amended to Do So
McFadden claims that her complaint states, or can be amended to state, facts sufficient to allege a cause against defendants City and Department for extrinsic fraud.
“ ‘Review of a judgment on the pleadings requires the appellate court to determine, de novo and as a matter of law, whether the complaint states a cause of action. [Citation.] For purposes of this review, we accept as true all material facts alleged in the complaint. [Citation.] Denial of leave to amend after granting a motion for judgment on the pleadings is reviewed for abuse of discretion. [Citation.]’ [Citation.] To show an abuse of discretion, the plaintiff has the burden of demonstrating that ‘there is a reasonable possibility the plaintiff could cure the defect with an amendment.’ [Citation.]” (Foundation For Taxpayer & Consumer Rights v. Nextel Communications, Inc. (2006) 143 Cal.App.4th 131, 135.)
“ ‘Extrinsic fraud occurs when a party is deprived of the opportunity to present his claim or defense to the court; where he was kept ignorant or, other than from his own negligence, fraudulently prevented from fully participating in the proceeding. [Citation.] Examples of extrinsic fraud are:... failure to give notice of the action to the other party, and convincing the other party not to obtain counsel because the matter will not proceed (and then it does proceed). [Citation.] The essence of extrinsic fraud is one party's preventing the other from having his day in court.’ [Citations.] Extrinsic fraud only arises when one party has in some way fraudulently been prevented from presenting his or her claim or defense. [Citations.]” (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1300.)
To set aside a judgment based on extrinsic fraud, the moving party must (1) demonstrate that it has a meritorious case; (2) articulate a satisfactory excuse for not presenting a defense to the original action; and (3) demonstrate diligence in seeking to set aside the default once it had been discovered. (Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 290-291.)
McFadden’s allegations of extrinsic fraud are that a “Ms. Wiles” led McFadden to believe that on December 7, 2004, the Board had held an adjudicative hearing concerning her house at 1446 West 37th Drive, mailed McFadden a fraudulent Board decision that McFadden believed was a valid Board notice, and that as a result McFadden filed the writ petition. McFadden alleges that Wiles knew she was lying to and deceiving McFadden and knew or should have known that the Board did not hold an adjudication hearing because the Board reviews determinations of the Department. McFadden alleges that as a result of her beliefs and confusion, the Department felt confident that it could demolish her house at 1446 West 37th Drive without an adjudication hearing or notice.
Res judicata, however, bars these claims. McFadden I held that the Board conducted a valid adjudicative hearing on December 7, 2004, that substantial evidence supported the board’s determination that the house at 1446 West 37th Drive was a public nuisance, and that the City had authority to demolish that house. Extrinsic fraud, moreover, occurs when a party is deprived of the opportunity to present her claim to the court because she was kept ignorant or fraudulently prevented from fully participating in the proceeding. McFadden’s allegations do not allege that she was kept ignorant or fraudulently prevented from fully participating in the proceeding before the Board. Instead she alleges that proceeding before the Board was itself invalid and fraudulent, which claim we rejected in McFadden I. McFadden also has not demonstrated either that she had a meritorious case before the Board, and has not articulated a satisfactory excuse for not presenting a defense in the Board proceeding.
The first amended complaint does not state a cause of action for extrinsic fraud, and there is no reasonable probability that McFadden can amend her complaint to do so.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to defendants the City of Los Angeles, the Board of Building and Safety Commissioners of the City of Los Angeles, and the Department of Building and Safety of the City of Los Angeles.
We concur: KLEIN, P.J., ALDRICH, J.