The Person Who Represents Herself in Litigation Has a Fool for a Client
When a pro se plaintiff has little or no knowledge of the law, litigation, and the purposes of an appeal, the chances of succeeding on an appeal are usually slim and most likely none.
In ShaRon Hassan v. Liberty Mutual Insurance Corporation, et al. H044053, Court Of Appeal Of The State Of California Sixth Appellate District (December 30, 2020) after a trip and fall causing her injury Plaintiff ShaRon Hassan filed, in propria persona, three separate lawsuits for damages based on the incident. The plaintiff’s actions included Liberty Mutual Insurance Company (Liberty Mutual) and Golden Eagle Insurance Corporation (Golden Eagle) (collectively, Insurance Defendants). The three actions were consolidated by the trial court, and the action against the City became the lead case. The trial court sustained the demurrer of the Insurance Defendants without leave to amend. Plaintiff appealed.
The Court of Appeal, trying to understand Plaintiff’s briefing found that the only appealable judgments or orders are (1) the December 4, 2015 judgment in favor of the Insurance Defendants (see § 904.1, subd. (a)(1)) and (2) the March 28, 2016 order denying Hassan’s motion to reconsider the judgment in favor of the Insurance Defendants, which was predicated on various provisions of the Code of Civil Procedure and may be appealable.
It 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. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error. In the absence of a contrary showing in the record, all presumptions in favor of the trial court’s action will be made by the appellate court.
The appellate court is ordinarily confined in its review to the proceedings that took place in the court below and are brought up for review in a properly prepared record on appeal. Factual matters that are not part of the appellate record will not be considered on appeal and such matters should not be referred to in the briefs.
Hassan forfeited for review all cognizable issues not supported by legal argument, citation of legal authority, and specific citation to the appellate record.
Judgment in Favor of Insurance Defendants
Hassan asserts that the trial court’s consolidation of the cases resulted in unfair, prejudicial hearings and orders against her by the lower courts and the defendants.
The order sustaining the Insurance Defendants’ demurrer without leave to amend was entered on May 14, 2015. Even assuming that the appeals court may review the consolidation order insofar as it concerned the Insurance Defendants, Hassan failed to present any comprehensible legal argument, supported by legal authority, to establish that (1) the trial court committed legal error by consolidating the cases and (2) the order prejudiced her action against the Insurance Defendants. Consequently, it deemed the claim forfeited.
Hassan did not establish, by specific citation to the appellate record, that (1) the parties failed to meet and confer before the Insurance Defendants filed their demurrer to the second amended complaint or that (2) before the trial court ruled on the demurrer, she objected on the ground that the Insurance Defendants had failed to meet and confer with her.
A reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. Moreover it is a principle of appellate review that a lower court’s judgment or order is presumed correct and that error must be affirmatively shown on appeal.
Order Sustaining Insurance Defendants’ Demurrers Without Leave to Amend
On appeal, Hassan argued that a trial court commits reversible error in sustaining a demurrer without leave to amend if the plaintiff shows “either in the trial court or on appeal” that there exists “a reasonable possibility [that] any defect identified by the defendant can be cured by amendment.”
The Insurance Defendants demurred to each of the 13 causes of action contained in the second amended complaint. They demurred on three grounds: (1) each cause of action did not state facts sufficient to constitute a cause of action; (2) there was a misjoinder of parties and (3) each cause of action was impermissibly uncertain, vague, and ambiguous as to them.
The trial court noted that Hasan had conceded that the Insurance Defendants did not own the property at issue. The trial court sustained the Insurance Defendants’ demurrer without leave to amend agreeing with the Insurance Defendants.
As the appellant, Hassan had the burden to show either that the demurrer was sustained erroneously or that the court abused its discretion in sustaining the demurrer without leave to amend. Given the lack of any meaningful legal argument, the Court of Appeal deemed any challenge to the court’s ruling sustaining the Insurance Defendants’ demurrer without leave to amend was forfeited on appeal.
Where the law allows an appeal from a judgment or order, it is appealable even though void. Therefore, the December 4, 2015 judgment in favor of defendants Liberty Mutual Insurance Company and Golden Eagle Insurance Corporation is affirmed. The March 28, 2016 order denying plaintiff Hassan’s motion to reconsider the judgment was reversed as void. Hassan shall bear costs on appeal.
The patience and consideration give to the Plaintiff by the Court of Appeal is commendable even though, and after, its decision established the the Plaintiff absolutely abused the legal process in bringing her suit against the Insurance Defendants for a trip and fall accident and then showing unbelievable chutzpah by appealing the order sustaining the insurers demurrers without leave to amend. Making her pay costs is something but not a sufficient deterrent to others acting similarly to waste the time of litigants and courts.
© 2020 – Barry Zalma
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 52 years in the insurance business. He is available at http://www.zalma.com and firstname.lastname@example.org.
Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.
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