Filed 8/26/16 Hayes v. the Regents of the University of California CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



ELBERT HAYES,                                                       D068670

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. 37-2013-00071444-
                                                                    CU-CR-CTL)
THE REGENTS OF THE UNIVERSITY OF
CALIFORNIA,

         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of San Diego County,

Joan M. Lewis, Judge. Affirmed.

         Elbert Hayes, in pro. per., for Plaintiff and Appellant.

         Brown Law Group, Janice P. Brown, Stacy L. Fode and Noah J. Woods for

Defendant and Respondent.
                                             I.

                                    INTRODUCTION

       Plaintiff Elbert Hayes, appearing in propria persona, appeals a judgment of

dismissal following the trial court's sustaining, without leave to amend, a demurrer filed

by defendant, The Regents of the University of California.

       Because Hayes has not met his burden as the appellant to demonstrate reversible

error, we affirm the judgment.

                                            II.

                  FACTUAL AND PROCEDURAL BACKGROUND

       As of February 23, 2015, defendant had a demurrer pending with respect to the

operative complaint filed by Hayes in this action. The hearing date for that demurrer was

May 15, 2015.1 Despite the pending demurrer, on February 23, Hayes filed an amended

complaint in which he alleged three causes of action against defendant arising from

claims related to Hayes's former employment with defendant.2

       At a case management conference held on March 13, 2015, the trial court

informed Hayes that he had to serve defendant with his recently-filed amended

complaint. Defendant had indicated that upon service of the amended complaint,

1      Although Hayes asserts in briefing that he filed a complaint against defendant on
October 15, 2013, the appellate record does not contain this complaint, nor any other
document that could confirm this information.
2      Hayes did not include the amended complaint in the record on appeal, nor did he
include any of defendant's motion papers with respect to the demurrer to that complaint.
Defendant moved to augment the record with (1) defendant's notice of plaintiff's
nonopposition to defendant's demurrer and (2) the transcript from a case management
conference. This court granted defendant's motion to augment the record.
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defendant intended to file a demurrer to the amended pleading. The court advised Hayes

that after he served defendant with the amended pleading and defendant filed its demurrer

to that pleading, Hayes would have the opportunity to file a written opposition to

defendant's demurrer.

          Defendant thereafter filed a demurrer to Hayes's amended pleading. The court

apparently permitted defendant to retain the May 15, 2015 hearing date for the demurrer

to the amended complaint. Hayes did not file a written opposition to defendant's latest

demurrer within the time limits set forth in section 1005(b) of the Code of Civil

Procedure, and defendant filed a notice of nonopposition. The notice of nonopposition

was served on Hayes a week prior to the May 15 hearing date. Hayes never filed any

opposition to the demurrer to his amended complaint.

          On May 15, the trial court held a hearing on defendant's demurrer to the operative

complaint. Hayes was present at the hearing and was given the opportunity to present

oral argument in opposition to the demurrer. At the conclusion of the hearing, the trial

court affirmed its tentative ruling to sustain defendant's demurrer to the amended

complaint, in full, without leave to amend. The trial court determined that Hayes had

failed to allege sufficient facts to demonstrate that he had exhausted his administrative

remedies with respect to the first two causes of action, and with respect to the third cause

of action for wrongful termination in violation of public policy, Hayes could not set forth

a claim against defendant because defendant is immune from liability for such a cause of

action.



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       The trial court entered a judgment of dismissal on June 11, 2015. Hayes filed a

timely notice of appeal.

                                             III.

                                       DISCUSSION

       Hayes's opening brief on appeal is confusing and, for the most part, unintelligible.

However, Hayes appears to challenge the trial court's sustaining of defendant's demurrer

without granting him further leave to amend the operative complaint.

       " 'A demurrer tests the legal sufficiency of the complaint, and the granting of leave

to amend involves the trial court's discretion. Therefore, an appellate court employs two

separate standards of review on appeal. [Citations.] [¶] The complaint is reviewed de

novo to determine whether it contains sufficient facts to state a cause of action.

[Citation.] The properly pleaded material factual allegations, together with facts that may

be properly judicially noticed, are accepted as true. Reversible error exists if facts were

alleged showing entitlement to relief under any possible legal theory.' " (Lee v. Los

Angeles County (2003) 107 Cal.App.4th 848, 853-854 (Lee), italics omitted.)

       " 'Where a demurrer is sustained without leave to amend, the reviewing court must

determine whether the trial court abused its discretion in doing so. [Citation.] It is an

abuse of discretion to deny leave to amend if there is a reasonable possibility that the

pleading can be cured by amendment. [Citation.] Regardless of whether a request

therefore was made, unless the complaint shows on its face that it is incapable of

amendment, denial of leave to amend constitutes an abuse of discretion. [Citation.] The

burden is on the plaintiff to demonstrate how he or she can amend the complaint. . . .

                                              4
Plaintiff can make this showing in the first instance to the appellate court.' " (Lee, supra,

107 Cal.App.4th at p. 854 (original italics omitted, new italics added).)

       An appellate court presumes that the judgment from which an appeal is taken is

correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) We adopt all

intendments and inferences to affirm the judgment unless the record expressly contradicts

them. (See Brewer v. Simpson (1960) 53 Cal.2d 567, 583.) The appellant has the burden

of overcoming the presumption of correctness, even when the appellate court is required

to conduct a de novo review. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.)

Further, an appellant's election to act as his or her own attorney does not entitle him or

her to any leniency as to the rules of practice and procedure. (Rappleyea v. Campbell

(1994) 8 Cal.4th 975, 984-985 (Rappleyea); Lombardi v. Citizens Nat. Trust etc. Bank

(1955) 137 Cal.App.2d 206, 208-209.)

       Hayes's argument on appeal is difficult to understand. For example, one heading

Hayes provides in his brief consists of the following:

          "THE PLAINTIFF (ELBERT HAYES) WAS CALL TO HUMAN
          RESOURCES TO SIGN A LAST CHANCE AGREEMENT TO
          KEEP HIS JOB. AT THE TIME OF SIGNING I WAS
          TEMPORARY TOTAL DISABLE BY DEFENDANTS DOCTORS
          FROM A WORK INJURY SUBSTAIN ON APRIL 15, 2011 TO
          HIS RIGHT SHOULDER. PLAINTIFF (ELBERT HAYES)
          SIGNED IN THE LAST CHANCE AGREEMENT IN
          DISAGREEMENT."

       In another portion of his brief, Hayes states, "I knew I would make mistake, but

the mistake should be grounds for dismissal when you proof of facts." Elsewhere, Hayes

states, "The Plaintiff (Elbert Hayes) prays and ask for the mercy in allowing the case to


                                              5
be sent back to Superior Court, so the Plaintiff can make a motion to withdraw the

amendment complaint filed February 23, 2015, so that justice and the truth can be

establish between the two parties." The remainder of the brief contains similar

statements.

          Although we are sympathetic to the difficulties that self-represented litigants often

face in attempting to navigate the intricacies of the legal system, our legal standards

require that we apply the rules of practice and procedure equally to self-represented

litigants and represented litigants alike. (See Rappleyea, supra, 8 Cal.4th at pp. 984-985

[a party's election to act as his own attorney does not entitle him to lenience as to the

rules of practice and procedure].) Not only has Hayes failed to set forth any cogent legal

argument as to how the trial court's sustaining of the demurrer was erroneous and/or why

the court's denial of leave to amend was an abuse of discretion, but he has not provided

this court with a sufficient record to permit us to assess the correctness of the trial court's

ruling.

          We conclude that Hayes has failed to meet his burden to demonstrate, either in the

trial court or on appeal, that the trial court erred in sustaining the demurrer to his

amended complaint, or that the defects identified by the trial court can be cured. We

therefore further conclude that the trial court did not abuse its discretion in sustaining

defendant's demurrer without leave to amend.




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                                          IV.

                                    DISPOSITION

     The judgment of the trial court is affirmed.



                                                    AARON, J.

WE CONCUR:

McDONALD, Acting P. J.

O'ROURKE, J.




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