Filed 8/24/20 Doe v. Golden Rain Foundation of Laguna Woods CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


 JANE DOE et al.,

      Plaintiffs and Appellants,                                         G058664

           v.                                                            (Super. Ct. No. 30-2019-01043724)

 GOLDEN RAIN FOUNDATION OF                                               OPINION
 LAGUNA WOODS et al,

      Defendants and Appellants.



                   Appeal from judgments of the Superior Court of Orange County, Ronald L.
Bauer, Judge. Affirmed.
                   Jane Doe and Alan Dale Dickinson, in pro. per., for Plaintiffs and
Appellants.
                   Pyka Lenhardt Schnaider Dawkins and Fred S. Peters for Defendants and
Respondents.
                                             *               *               *
              Plaintiffs Jane Doe and Alan Dale Dickinson appeal from a judgment of
dismissal following the sustaining of a demurrer without leave to amend, together with a
second judgment of dismissal in favor of certain defendants who were dropped from the
operative amended complaint. Defendants Golden Rain Foundation of Laguna Woods
(GRF), Village Management Services, Inc. (VMS), John Prickitt, Brian Gruner, and
Jennifer Murphy demurred to plaintiffs’ entire fourth amended complaint on the ground it
was a sham pleading in that it omitted facts alleged in prior iterations of the complaint.
Alternatively, these defendants demurred to each cause of action in the fourth amended
complaint on the ground that each count failed to state facts constituting a cause of
action. Concurrently, defendants Beth Perak, Marcy Sheinwold, Lisa Bender, Siobhan
Foster, Laura Cooley, Tim Moy, Joan Milliman, and Dan Kenny moved for dismissal on
the ground that they had been named as defendants in earlier iterations of plaintiffs’
complaint, but had been dropped in plaintiffs’ fourth amended complaint.
              The court sustained the demurrer without leave to amend and granted the
motion to dismiss without prejudice. Plaintiffs filed a premature notice of appeal,
purporting to appeal from the nonappealable order entered on the day of the hearing,
December 9, 2019. Concerned that we lacked jurisdiction to consider the appeal, and not
having found a copy of a judgment of dismissal for the demurring defendants in the
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record supplied by plaintiffs, we augment the record with a copy of the subsequent
judgment entered by the trial court on December 17, 2009. A judgment was entered on
December 10, 2019 as to the defendants who prevailed on the motion to dismiss.
Accordingly, we will construe the appeal as having been taken from these judgments of
dismissal. (See Los Altos Golf & Country Club v. County of Santa Clara (2008) 165
Cal.App.4th 198, 202 [appeal taken from order sustaining demurrer liberally construed to


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            A copy of the subsequent judgment of dismissal of the eight defendants
who moved to dismiss was attached to the notice of appeal.

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have been taken from subsequent judgment of dismissal]; Cal. Rules of Court, rule
8.104(d)(2).)
                On appeal, plaintiffs have failed to demonstrate that the sham pleading
doctrine does not apply or even to mention the basis of the trial court’s ruling. Further,
even if plaintiffs had argued against application of the sham pleading doctrine, they have
failed to present an adequate record on appeal from which we could have evaluated that
argument. Plaintiffs have thereby waived the points they necessarily must have
addressed on this appeal as to the demurring defendants. And the dismissal of the
defendants who were omitted from the fourth amended complaint was correct as a matter
of law, as was the award of costs to defendants. Accordingly, we affirm the judgments.


                                           FACTS


                According to the fourth amended complaint, defendants GRF and VMS
operate, control and manage Laguna Woods Village, a senior citizens community.
Defendants Gruner and Murphy were employees of VMS. Defendants GRF, VMS,
Gruner and Murphy employed defendant Prickitt as a tennis instructor at Laguna Woods
Village.
                Here is the story underlying the entire fourth amended complaint. Jane Doe
signed up to take tennis lessons from Prickitt. During the course of the tennis instruction,
Prickitt allegedly “sexually assaulted and sexually harassed” Jane Doe by touching her in
a “sexual and non-consenting manner across her arm, upper body and torso.” Based on
this conduct, plaintiff Jane Doe sought to impose liability on GRF, VMS, Gruner and
Murphy for negligent hiring and training of Prickitt and for failing to “supervise, observe,
train, control and manage Prickitt in his position as tennis instructor.” As to Prickitt, Jane
Doe alleged his conduct rendered him liable for assault, battery, intentional infliction of
emotional distress, and sexual harassment. Dickinson, as the husband of Jane Doe,

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alleged he suffered “severe emotional distress” by twice observing Prickett make “sexual
advances towards Jane Doe by touching Jane Doe in a sexual and non-consenting manner
across her arm, upper body and torso.”


                                       DISCUSSION


The demurrer was properly sustained without leave to amend.
              The centerpiece of defendants’ demurrer below, and of their argument on
appeal, is their contention that the fourth amended complaint was a sham. “It is
axiomatic that the function of a demurrer is to test the legal sufficiency of the pleading by
raising questions of law. [Citation.] It is also well established that, when reviewing a
judgment entered following the sustaining of a demurrer without leave to amend, the
appellate court must assume the truth of the factual allegations of the complaint.
[Citation.] However, an exception exists where a party files an amended complaint and
seeks to avoid the defects of a prior complaint either by omitting the facts that rendered
the complaint defective or by pleading facts inconsistent with the allegations of prior
pleadings. [Citations.] In these circumstances, the policy against sham pleading permits
the court to take judicial notice of the prior pleadings and requires that the pleader
explain the inconsistency. If he fails to do so the court may disregard the inconsistent
allegations and read into the amended complaint the allegations of the superseded
complaint.” (Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 383-384.) “A
pleader may not attempt to breathe life into a complaint by omitting relevant facts which
made his previous complaint defective. [Citation.] . . . ‘A litigant should not be allowed
to abuse the privilege of amendment. If the amended pleading is only a sham, and it is
apparent that no cause of action can truthfully be stated, the court should disregard that
pleading.’” (Hills Trans. Co. v. Southwest (1968) 266 Cal.App.2d 702, 713.) Under
these circumstances, “[t]he conclusion is inescapable that [the] amendment was made

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solely for the purposes of avoiding a demurrer,” (Owens, at p. 384) and the demurrer is
properly sustained.
              Here, plaintiffs’ opening brief on appeal makes no reference to the sham
pleading doctrine invoked by defendants’ demurrer. Likewise, plaintiffs’ reply brief does
not discuss the sham pleading doctrine or attempt to explain why it does not apply to this
case. “[I]t is a fundamental principle of appellate procedure that a trial court judgment is
ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the
basis of the record presented to the appellate court, that the trial court committed an error
that justifies reversal of the judgment.” (Jameson v. Desta (2018) 5 Cal.5th 594, 608-
609, italics added.) “‘Appellate briefs must provide argument and legal authority for the
positions taken. “When an appellant fails to raise a point, or asserts it but fails to support
it with reasoned argument and citations to authority, we treat the point as waived.”’
[Citation.] ‘We are not bound to develop appellants’ arguments for them. [Citation.] The
absence of cogent legal argument or citation to authority allows this court to treat the
contention as waived.’” (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th
939, 956].) The absence of reasoned legal argument, together with the presumption that
the judgment is correct requires us to affirm the sustaining of the demurrer.
              Further, plaintiffs have not supplied an adequate record for our review.
“[P]laintiff has the burden of providing an adequate record. [Citation.] Failure to
provide an adequate record on an issue requires that the issue be resolved against
plaintiff.” (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498,
502.) Here, an “adequate record” would require that the first four iterations of plaintiffs’
complaint be made available for our review. How else are we to determine whether, as
defendants contend, and the court found, inconsistencies with prior allegations render the




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fourth amended complaint a sham? Plaintiffs did not include either the initial complaint
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or any of the first three amended complaints in the appellate record.
              This was plaintiffs fifth attempt to state a cause of action, against a total of
13 defendants, for Prickitt’s alleged act of touching Jane Doe on her “arm, upper body
and torso” in the course of giving a tennis lesson. Plaintiffs have not suggested how, or
in what manner, their complaint could be amended to avoid the sham pleading doctrine,
or to allege facts which would be sufficient to state a cause of action without violating the
sham pleading doctrine. We thus have no basis upon which to second guess the trial
court’s exercise of discretion in denying further leave to amend.


The motion to dismiss was properly granted.
              Thirteen defendants were named in the first four iterations of the complaint.
The fourth amended complaint named only five defendants, thereby dropping eight
defendants from the complaint. Defendants’ motion to enter a judgment of dismissal as
to these eight former defendants was made on the ground that the act of dropping these
defendants from the fourth amended complaint operated as a dismissal of those
defendants. The court properly granted the motion. “It has long been the rule that an
amended complaint that omits defendants named in the original complaint operates as a
dismissal as to them.” (Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114
Cal.App.4th 1135, 1142; Schlake v. MacConnell (1924) 69 Cal.App. 207, 209 [“The
filing of an amended complaint, omitting a defendant named in the original complaint,
operates as a dismissal of the action as to such defendant”].)



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               In the respondent’s brief, defendants refer to allegations made in the earlier
iterations of the complaint, and, in support thereof, purport to cite pages in a respondent’s
appendix. But a respondent’s appendix was never filed with this court. It is not a part of
the record on appeal, so we necessarily disregard those citations and the purported
allegations.

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Costs were properly awarded.
              Plaintiffs contend the court erred by allowing an award of costs to the
defendants. Plaintiffs are mistaken. “[A] prevailing party is entitled as a matter of right
to recover costs in any action or proceeding.” (Code Civ. Proc. § 1032, subd. (b), italics
added.) A “prevailing party” is defined to include “a defendant in whose favor a
dismissal is entered.” (Id., subd. (a)(4).) Thus, all 13 defendants qualified as prevailing
parties thereby entitling them to an award of costs “as a matter of right.”
              Defendants’ memorandum of costs included only those costs which are
expressly allowed by statute: The first appearance fees for 13 defendants at $435 each,
totaled $5,655 (Code Civ. Proc., §1033.5, subd. (a)(1)); jury fees deposited on
December 2, 2019, totaled $150 (id., subd (a)(1)); deposition costs for the taking of Jane
Doe’s deposition, totaled $1,354 (id., subd. (a)(3)(A)); court reporter fees (as established
by statute), totaled $508 (id. subd. (a)(11)); electronic filing and service fees, totaled
$196 (id., subd. (a)(14)).
              The allowable costs thus totaled $7,863. The award was merely the normal
consequence of filing an unsuccessful lawsuit against 13 defendants. The court would
have abused its discretion had it failed to award these costs. There was no error.




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                                    DISPOSITION


             The judgments are affirmed. Defendants shall recover costs incurred on
appeal. Defendants’ motion to dismiss the appeal and for sanctions is denied.




                                                IKOLA, J.

WE CONCUR:



FYBEL, ACTING P. J.



GOETHALS, J.




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