Opinion
A148836
08-28-2017
THICKER THAN WATER, INC., Plaintiff and Respondent, v. THOMAS PATRICK DAVIES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. C11-01219)
Thomas Patrick Davies subleased commercial property to Thicker Than Water, Inc. A dispute arose about the tenancy and in 2011, Thicker Than Water filed a lawsuit against Davies. In August 2015—after the trial date was set—Davies cross-complained against Rick and Darren Derita (collectively, Derita). Derita moved to strike the cross-complaint pursuant to Code of Civil Procedure section 428.50. The trial court granted the unopposed motion, and later granted Thicker Than Water's unopposed request to dismiss its operative second amended complaint.
All undesignated statutory references are to the Code of Civil Procedure. Section 428.50 allows the filing of a cross-complaint "without leave of court only before a trial date is set." (Loney v. Superior Court (1984) 160 Cal.App.3d 719, 722.)
Davies appeals. He contends the court erred by striking the cross-complaint. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We recite only those facts relevant to the narrow issue on appeal.
Thicker Than Water—which was incorporated to establish a bar in Walnut Creek—subleased commercial space for the bar from Davies. Derita signed the lease as Thicker Than Water's authorized agents. In 2011, Thicker Than Water sued Davies for, among other things, breach of contract and fraud. In November 2014, the court set an April 2016 trial date. In August 2015, Davies filed a cross-complaint against Derita for breach of contract and common counts.
Derita moved to strike the cross-complaint pursuant to section 428.50. Davies did not oppose the motion. In April 2016, the trial court issued a tentative ruling granting the unopposed motion and it became the court's final decision. (Super. Ct. Contra Costa County, Local Rules, rule 3.43(2).) In May 2016, the court granted Thicker Than Water's unopposed request to dismiss its operative second amended complaint.
DISCUSSION
The order granting Derita's motion to strike the cross-complaint is reviewable on appeal from the dismissal of Thicker Than Water's operative complaint. (Lerner v. Ehrlich (1963) 222 Cal.App.2d 168, 170.)
Davies contends the court prejudicially erred by striking the cross-complaint. Among other things, Davies claims the court could not strike the cross-complaint—which he describes as "compulsory"—because he did not act in "bad faith" when filing it. Davies has forfeited these arguments by failing to oppose the motion to strike in the trial court. (Bell v. American Title Ins. Co. (1991) 226 Cal.App.3d 1589, 1602 ["[f]ailure to register a proper and timely objection to a ruling or proceeding in the trial court waives the issue on appeal"]; Cummings v. Future Nissan (2005) 128 Cal.App.4th 321, 329 [failure to raise argument in opposition to motion to compel arbitration forfeited appellate challenge to legality of the arbitration agreement]; Southern California Gas Co. v. Flannery (2016) 5 Cal.App.5th 476, 483, fn. 7 [party who "did not file any opposition to the motions" in the trial court "waived all arguments against the motions" on appeal].) Davies's argument to the contrary is not persuasive.
" '[A] party is precluded from urging on appeal any point not raised in the trial court. [Citation.] Any other rule would " ' "permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not." ' " ' " (In re Aaron B. (1996) 46 Cal.App.4th 843, 846; Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264-265 [purpose of forfeiture rule is to "advance efficiency and deter gamesmanship," to encourage parties to bring errors to the attention of the superior court "so that they may be corrected or avoided and a fair trial had"].)
Davies's in propria persona status did not relieve him of the requirement to oppose the motion to strike. "A party proceeding in propria persona 'is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys.' [Citation.] Indeed, ' "the in propria persona litigant is held to the same restrictive rules of procedure as an attorney." ' " (First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1.) "A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation." (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985.) Having failed to oppose the motion to strike, Davies has forfeited his right to challenge the granting of the motion on appeal.
For the first time in his reply brief, Davies asserts Thicker Than Water could not dismiss the operative complaint. We decline to consider this argument because Davies has not demonstrated good cause "for the delay in raising the point." (Simpson v. The Kroger Corp. (2013) 219 Cal.App.4th 1352, 1370 [declining to consider new theory asserted in reply brief].) " 'Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant.' " (In re Marriage of Khera and Sameer (2012) 206 Cal.App.4th 1467, 1477-1478.)
Davies claims Thicker Than Water is a suspended corporation and "had no right to appear in any hearing" in the trial court. This argument regarding Thicker Than Water's corporate status has no bearing on whether the trial court properly granted Derita's motion to strike the cross-complaint. --------
DISPOSITION
The orders granting Derita's motion to strike and dismissing Thicker Than Water's operative complaint are affirmed. Derita is entitled to costs on appeal. (Cal. Rules of Court, rule 8.278.)
/s/_________
Jones, P. J. We concur: /s/_________
Simons, J. /s/_________
Bruiniers, J.