Filed 2/18/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF 

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

LUKE EDWARD DUMAS, 

 Plaintiff and Appellant,

v.

LOS ANGELES COUNTY BOARD 

OF SUPERVISORS et al.,

 Defendants and Respondents.

 B288554

 (Los Angeles County

 Super. Ct. No. BC618191)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Gregory Keosian, Judge. Affirmed.

Luke Edward Dumas, in pro. per., for Plaintiff and 

Appellant.

Coleman and Associates and John M. Coleman for 

Defendants and Respondents.
2

INTRODUCTION

Appellant Luke Edward Dumas brought this action 

against respondents, the Los Angeles County Board of 

Supervisors and the Los Angeles County Sheriff’s Department 

(collectively, “the County”), and others, alleging various civil 

rights violations. The trial court ultimately dismissed the 

complaint based on appellant’s repeated discovery violations. 

On appeal, appellant argues the court erred in, inter 

alia: (1) failing to notify him of its ruling striking his 

statement of disqualification; (2) sustaining the County’s 

demurrer in part, despite its failure to meet and confer; (3) 

granting the County’s motion to strike his request for 

punitive damages without considering his opposition; and (4) 

denying his motion to quash a subpoena for his medical 

records. We affirm. 

BACKGROUND

A. The Complaint and the County’s Demurrer and 

Motion to Strike

In 2016, appellant filed a complaint in propria persona

against the County, the County Sheriff, as an individual, and

others, asserting several causes of action relating to

appellant’s 2015 arrest by sheriff’s department deputies. 

Among other things, the complaint alleged the defendants 

caused appellant physical and emotional injuries, and 

requested punitive damages. 

The County concurrently demurred and moved to strike 

appellant’s request for punitive damages. In a declaration 
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attached to the demurrer, the County’s counsel stated he had 

sent “a written Meet and Confer request” to appellant, but 

had received no response. Appellant filed oppositions to both 

the demurrer and the motion to strike. As to the demurrer, 

appellant appeared to complain, inter alia, that counsel did 

not call him to meet and confer. 

The trial court, Judge Gregory Keosian, sustained the 

demurrer in part without leave to amend, dismissing one 

cause of action as invalid, and dismissing the County Sheriff 

as a defendant because he could not be liable for his 

subordinates’ actions. The court did not address appellant’s 

apparent challenge to the meet and confer process. The court 

also granted the County’s motion to strike, reasoning that 

public entities cannot be held liable for punitive damages.1

(See Gov. Code § 818 [“Notwithstanding any other provision 

of law, a public entity is not liable for . . . damages imposed 

primarily for the sake of example and by way of punishing the 

defendant”].) 

B. Appellant’s Motion to Quash and Statement of 

Disqualification, and the Court’s Dismissal of 

the Complaint

During discovery, the County noticed appellant’s 

deposition and subpoenaed his medical records from a third 

party. Appellant moved to quash the subpoena, arguing that 

1 In so doing, the court incorrectly stated that appellant had 

not filed an opposition to the County’s motion. 
4

it sought irrelevant information and would violate his right to 

privacy if enforced. The trial court denied the motion, noting 

appellant’s allegations of physical and emotional injuries. 

After appellant failed to appear for his deposition, the 

trial court granted the County’s unopposed motion to compel. 

On January 23, 2018, appellant filed a statement of 

disqualification under Code of Civil Procedure section 170.3.2 

In that filing, which demonstrated appellant’s familiarity 

with statutory disqualification procedures, appellant 

asserted, inter alia, that Judge Keosian was biased against 

him as a Mexican-American and a propria persona litigant, 

and was partial to the County. Three days later, on January 

26, Judge Keosian struck the statement of disqualification as 

both untimely and facially disclosing no legal grounds for 

disqualification. Appellant did not petition for a writ of 

mandate to challenge this ruling.

Later that month, appellant again failed to appear for 

his deposition. On February 2, on the County’s motion, the 

trial court issued an order to show cause why appellant’s 

complaint should not be dismissed for his failure to comply 

with the order compelling his deposition. After appellant 

failed to appear for the hearing on the order to show cause or 

2 Under Code of Civil Procedure section 170.3, if a judge who 

should disqualify himself or herself fails to do so, any party may 

file a verified statement setting forth facts that constitute grounds 

for disqualification. (§ 170.3, subd. (c)(1).) Undesignated statutory 

references are to the Code of Civil Procedure.
5

to otherwise respond, the court dismissed the case without 

prejudice. Appellant timely appealed. 

DISCUSSION

On appeal, appellant contends the trial court 

mishandled his statement of disqualification and erred in 

partially sustaining the County’s demurrer. He also seeks to 

challenge the court’s ruling on the County’s motion to strike 

and the denial of his motion to quash the County’s subpoena. 

We address his claims in turn. 

A. The Statement of Disqualification

Appellant challenges the trial court’s handling of his 

statement of disqualification, asserting primarily that he did 

not receive notice of Judge Keosian’s ruling. Section 170.1

provides certain grounds for the disqualification of a judge. 

Section 170.3 outlines the procedures for determining 

disqualification challenges. As noted, under section 170.3, if a 

judge who should disqualify himself or herself fails to do so, 

any party may file a verified written statement setting forth 

facts constituting grounds for disqualification. (§ 170.3, subd. 

(c)(1).) The objecting party must file this statement at the 

“earliest practicable opportunity” after discovery of the 

relevant facts. (Ibid.) 

Once a party has filed a statement of disqualification,

the judge has no power to act in the case until the question of 

disqualification has been determined. (§ 170.4, subd. (d); 

People v. Lind (2014) 230 Cal.App.4th 709, 714 (Lind).) The 
6

judge may either (1) request another judge on whom the 

parties agree to take his or her place, without conceding 

disqualification; (2) file a “consent to disqualification”; or (3) 

file a “written verified answer admitting or denying any or all 

of the allegations . . . .” (§ 170.3, subds. (c)(2) & (3).) If the 

judge refuses to recuse, the question of disqualification is 

generally to be determined by another judge. (§ 170.3, subd. 

(c)(5).) However, under section 170.4, subdivision (b), if the 

statement is untimely or on its face discloses no legal grounds 

for disqualification, the judge may strike it. (Urias v. Harris 

Farms, Inc. (1991) 234 Cal.App.3d 415, 420 (Urias).) “Failure 

to take any action within 10 days [is] deemed a consent to 

disqualification.” (Hollingsworth v. Superior Court (1987) 191 

Cal.App.3d 22, 26 (Hollingsworth); accord, § 170.3, subd. (c)(3) 

& (4).) “Thereafter, the judge is deemed disqualified and has 

no power to act in the case.” (Hollingsworth, at p. 26.)

The determination of the question of disqualification, 

including the striking of the objecting party’s statement under 

section 170.4, subdivision (b), is not an appealable order. (See 

PBA, LLC v. KPOD, Ltd. (2003) 112 Cal.App.4th 965, 971 

(PBA) [appellants were precluded from seeking review of 

stricken statements of disqualification on appeal].) A party 

seeking review must petition for a writ of mandate “within 10 

days after service of written notice of entry of the court’s order

. . . .” (§ 170.3, subd. (d).) 

Judge Keosian struck appellant’s statement of 

disqualification under section 170.4, subsection (b), 

concluding it was both untimely and facially failed to disclose 
7

grounds for disqualification. Appellant appears to 

acknowledge he may not directly challenge this ruling on 

appeal. He asserts, however, that he never received notice of 

the ruling and was therefore unable to petition for a writ of 

mandate. The record does not support this assertion. 

In his statement of disqualification, appellant exhibited 

familiarity with disqualification procedures, including the 

requirement that the challenged judge respond to the 

statement in some way within 10 days, and the suspension of 

the judge’s power to act in the case until the question of 

disqualification has been determined. (See §§ 170.3, subd. 

(c)(3) & (4), 170.4, subd. (d); Lind, supra, 230 Cal.App.4th at 

p. 714; Hollingsworth, supra, 191 Cal.App.3d at p. 26; Urias, 

supra, 234 Cal.App.3d at p. 420.) On February 2, 2018, 10

days after appellant filed his statement of disqualification 

(and seven days after Judge Keosian struck that statement),

Judge Keosian issued an order to show cause why the 

complaint should not be dismissed. Appellant does not 

dispute receiving notice of the order to show cause. His 

subsequent failure below to claim he had not received notice 

of any action on his statement of disqualification, or to

complain that Judge Keosian had no power to issue an order 

to show cause while the disqualification question was 

pending, suggests he was in fact aware that Judge Keosian 

had stricken the statement. To the extent appellant argues 

Judge Keosian erred in striking his statement of 

disqualification, that claim is not reviewable on appeal. (See 

§ 170.3, subd. (d); PBA, supra, 112 Cal.App.4th at p. 971.) 
8

B. The Demurrer

Appellant argues the County failed to properly meet and 

confer with him before filing the demurrer. He contends that

under section 430.41, the County’s insufficient efforts 

required the trial court to overrule the demurrer. Appellant’s contentions regarding the meaning of the statute raise 

questions of law subject to de novo review. (See In re T.B.

(2009) 172 Cal.App.4th 125, 129 [interpretation of statute 

reviewed de novo].)

Under section 430.41, before filing a demurrer, the 

demurring party must meet and confer with the party who 

filed the challenged pleading “in person or by telephone” to 

determine if the demurring party’s objections can be resolved 

by agreement. (§ 430.41, subd. (a)(1).) If the parties are 

unable to meet and confer at least five days before the 

responsive pleading is due, the demurring party must file a 

declaration stating that a good faith attempt to meet and 

confer was made and explaining the reasons the parties could 

not meet and confer. (Id., subd. (a)(2).) This declaration 

results in an automatic 30-day extension of the time to file the 

responsive pleading. (Ibid.) However, under section 430.41, 

subsection (a)(4), “[a]ny determination by the court that the 

meet and confer process was insufficient shall not be grounds 

to overrule or sustain a demurrer.” (Ibid.; see also Olson v. 

Hornbrook Community Services Dist. (2019) 33 Cal.App.5th 

502, 515 (Olson) [relying on § 430.41, subd. (a)(4), in rejecting 

claim that party’s failure to meet and confer deprived trial 

court of jurisdiction over pleadings]; Weil & Brown, Cal. 
9

Practice Guide: Civil Procedure Before Trial (The Rutter 

Group 2019) ¶ 7:97.27, p. 7(l)-48 [“failure to sufficiently meet 

and confer is not grounds to overrule or sustain a demurrer”].)

In a declaration attached to the County’s demurrer, 

counsel described sending appellant a “written Meet and 

Confer request” but receiving no response. Appellant 

contends this written request did not satisfy section 430.41’s 

requirement of a meeting “in person or by telephone.” We 

need not address the adequacy of the County’s efforts to meet 

and confer, as any insufficiency in the process would not 

undermine the trial court’s ruling on the County’s demurrer.

(See § 430.41, subd. (a)(4); Olson, supra, 33 Cal.App.5th at 

p. 515.) 

Citing no authority, appellant argues section 430.41, 

subdivision (a)(4), applies only after the demurring party files 

a declaration of inability to meet and confer by the deadline 

and obtains the automatic 30-day extension under section 

430.41, subdivision (a)(2). He claims that absent this action 

by the demurring party, the court may not disregard defects 

in the meet and confer process. We disagree. 

Nothing in the text of section 430.41, subdivision (a)(4), 

conditions its operation on compliance with other provisions. 

To the contrary, it instructs that “[a]ny” determination that 

the process was insufficient will not be grounds to overrule 

the demurrer.3 (§ 430.41, subd. (a)(4); see also Weil & Brown, 

3 Of course, trial courts are not required to ignore defects in 

the meet and confer process. If, upon review of a declaration 

(Fn. is continued on the next page.)
10

Cal. Practice Guide: Civil Procedure Before Trial, supra,

¶ 7:97.27.) Accordingly, the trial court did not err in 

sustaining the demurrer in part.4

C. Appellant’s Other Claims

Appellant challenges the trial court’s rulings on the 

County’s motion to strike and his motion to quash the 

under section 430.41, subdivision (a)(3), a court learns no meet 

and confer has taken place, or concludes further conferences 

between counsel would likely be productive, it retains discretion to 

order counsel to meaningfully discuss the pleadings with an eye 

toward reducing the number of issues or eliminating the need for a 

demurrer, and to continue the hearing date to facilitate that effort. 

(See Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967-

968 [courts have inherent authority to regulate proceedings in 

ways consistent with statutes]; § 430.41, subd. (c) [addressing

meet and confer conferences following grant of demurrer with 

leave to amend; “Nothing in this section [§ 430.41] prohibits the 

court from ordering a conference on its own motion at any time or 

prevents a party from requesting that the court order a conference 

to be held” (emphasis added)].)

4 Appellant asserts in conclusory fashion that the trial court 

abused its discretion by denying him leave to amend. A trial court 

abuses its discretion in denying leave to amend if the plaintiff can 

show a reasonable possibility of curing the defect in the complaint 

by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

Because appellant makes no effort to show he could cure the 

defects the trial court identified in his complaint, he cannot 

establish the court abused its discretion in denying him leave to 

amend. (See Heritage Pacific Financial, LLC v. Monroy (2013) 215 

Cal.App.4th 972, 994 [plaintiff has burden to prove amendment 

would cure defect in complaint].)
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County’s subpoena for his medical records. These claims 

cannot affect the trial court’s judgment dismissing the case 

based on appellant’s failure to respond to an order to show 

cause.5 We therefore need not consider those contentions. 

(See Kaiser Foundation Health Plan, Inc. v. Superior Court

(2012) 203 Cal.App.4th 696, 715 [“We decline to review an 

issue that will have no effect on the parties”]; Shaw v. County 

of Santa Cruz (2008) 170 Cal.App.4th 229, 259 [declining to 

resolve matters that were unnecessary to appellate decision].) 

Moreover, were we to consider appellant’s additional claims, 

we would reject them. 

As to the motion to strike his request for punitive 

damages from the complaint, appellant notes that in granting 

the motion, the trial court incorrectly stated he had not filed 

5 While appellant generally complains that dismissal of his 

complaint was unjust, his opening brief advances no reasoned, 

independent challenge to the trial court’s order of dismissal 

following his failure to respond to the order to show cause. In his 

reply brief, appellant complains that the trial court scheduled the 

hearing on the order to show cause for a time in which he had a 

trial scheduled in a different case. He has forfeited this contention 

by failing to object below and to raise the issue in his opening 

brief. (See Perez v. Grajales (2008) 169 Cal.App.4th 580, 591-

592 (Perez); Browne v. County of Tehama (2013) 213 Cal.App.4th 

704, 726 [failure to raise argument in opening brief constitutes 

forfeiture].) Moreover, at appellant’s request, we have taken 

judicial notice of a minute order dismissing the other proceeding 

after he failed to appear on the day set for trial. Because 

appellant failed to appear in both cases, he cannot claim the 

scheduling conflict caused his failure to appear in this case.
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an opposition. But the court’s oversight did not prejudice 

appellant: it granted the motion on the ground that public 

entities are not liable for punitive damages, a conclusion 

appellant does not challenge on appeal. Because appellant 

has shown no prejudice from the trial court’s apparent failure 

to consider his opposition, his challenge to the court’s ruling 

must fail. (See In re Marriage of Falcone & Fyke (2008) 164 

Cal.App.4th 814, 822 [“‘It is a fundamental principle of 

appellate jurisprudence in this state that a judgment will not 

be reversed unless it can be shown that a trial court error in 

the case affected the result’”].) 

As for the denial of appellant’s motion to quash the 

County’s subpoena, appellant suggests he did not place his 

medical records at issue, as would justify the invasion of his 

right to privacy, because he did not assert claims for disability 

discrimination. But while he did not sue for disability 

discrimination, appellant alleged he sustained both physical 

and emotional injuries as a result of the County’s conduct, 

placing his medical history at issue. To the extent he 

suggests the subpoena was overbroad, he has forfeited this 

argument by failing to raise it below. (See Perez, supra, 169 

Cal.App.4th at pp. 591-592 [“arguments raised for the first 

time on appeal are generally deemed forfeited”].) 
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DISPOSITION

The judgment is affirmed. The County shall recover its 

costs on appeal.

CERTIFIED FOR PUBLICATION

MANELLA, P. J.

We concur:

WILLHITE, J.

CURREY, J.