A California appeals court ruled that a libel suit brought by a lawyer fired by the City of Compton was properly dismissed on technical grounds since the lawyer failed to amend his complaint as directed by the trial court. -db
November 15, 2010
By Kenneth Ofgang
A suit by a lawyer who claims he was wrongly fired by the City of Compton and defamed by his supervisor there was properly dismissed on technical grounds, the Court of Appeal for this district has ruled.
Div. Four, in an unpublished opinion Wednesday by Justice Nora Manella, said Robert Edwin Ware failed to amend his complaint when the trial court gave him an opportunity to do so and failed to object in the trial court to the subsequent dismissal with prejudice.
Ware alleged in his complaint that he worked as a probationary employee in the City Attorney’s Office from September 2008 until his discharge in February of last year. He claimed that his supervisor, Anita Aviles, falsely accused him of threatening to kill her, and lied in a performance evaluation.
He also alleged he was refused a hearing to clear his name.
The defendants demurred to the complaint and filed a special motion to strike under the anti-SLAPP statute. Los Angeles Superior Court Judge Richard L. Fruin granted the motion to strike as to all claims except the defamation cause of action against Aviles, and held that the demurrer was moot as to those claims.
With respect to the defamation cause of action, Fruin denied the motion to strike and granted the plaintiff 20 days to amend the complaint to “allege a cause of action for defamation only, which cause of action shall not be based upon the performance evaluations of plaintiff by Aviles, which are privileged.”
Ware appealed the striking of his other claims, and Aviles cross-appealed the denial of the motion to strike the defamation claim. The parties subsequently reached a settlement agreement, but Ware unilaterally revoked the agreement, the appellate court explained.
Aviles then moved ex parte to dismiss the action for failure to amend within the time specified in Fruin’s order, but Ware did not respond or appear and the action was dismissed with prejudice.
Ware moved to set aside the dismissal, but took the motion off calendar after Aviles filed opposition, and then appealed.
Manella, writing for the Court of Appeal, explained that when a demurrer is sustained with leave to amend, the court may dismiss on motion of the defendant if the plaintiff fails to amend within the time specified by the court.
While Ware contended on appeal that the court did not sustain the demurrer with leave to amend, but “overruled” the demurrer while requiring him to amend within 20 days, that argument was not made in the trial court and was forfeited on appeal, the justice said.
In addition, she wrote, Ware’s failure to oppose the ex parte application to dismiss, to appear at the hearing on the application, or to move for reconsideration of the dismissal, coupled with the withdrawal of his motion to set aside the dismissal, constituted forfeiture of his right to appeal, Manella said.
In any event, she added, Ware’s failure to amend within the time allowed by the court constituted a valid ground for dismissal with prejudice under Code of Civil Procedure Sec. 581(f)(4), and there was no abuse of discretion.
Ware declined comment Friday, saying he had not read the opinion. Aviles did not return a MetNews phone call.
Ware represented himself on appeal. Aviles was represented by Saskia T. Asamura and T. Peter Pierce of Richards, Watson & Gershon.
The case is Ware v. Aviles, B222405.
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