Judge: Daniel M. Crowley, Case: 20STCV06989, Date: 2022-08-24 Tentative Ruling

Case Number: 20STCV06989    Hearing Date: August 24, 2022    Dept: 28

Defendants Dimitri George Trust and Dimitri George’s Motion to Dismiss Appeal

Having considered the moving, opposing and reply papers, the Court rules as follows.

BACKGROUND

On February 19, 2020, Plaintiffs Estate of Edgar Luna (“Estate”), Aaron Luna (“Aaron”), and Heidi Luna (“Heidi”) filed these actions against Defendants Dimitri George (“Dimitri”), Gina George (“Gina”), and the Dimitri George Trust (“Trust”) for negligence (wrongful death). Aaron and Heidi were both represented by their guardian ad litem Rosie Acevado (“Acevado”). Plaintiffs filed the First Amended Complaint on May 7, 2020.

Plaintiffs moved to dismiss Gina, which was granted on July 14, 2020.

Dimitri and the Trust filed their answer to the first amended complaint on July 31, 2020. At that time, Dimitri and the Trust filed a Cross-Complaint against Cross-Defendant Jorge Armando Valencia (“Valencia”) for comparative indemnity and apportionment of fault, total equitable indemnity, contribution and declaratory relief. Defendants added Cross-Defendant Fernando Garcia (“Garcia”) to the Cross-Complaint on March 23, 2021. Garcia filed his answer to the Cross-Complaint on October 12, 2021. 

On June 15, 2021, Garcia filed a Cross-Complaint against Dimitri, Gina, and the Trust for battery, assault, intentional infliction of emotional distress and negligence – premises liability.

On April 4, 2022, pursuant to Dimitri and Trust’s granted MSJ, the Court entered judgment in their favor. Dimitri and Trust were dismissed, with prejudice, on May 26, 2022. Plaintiffs filed an appeal of this judgment on June 24, 2022.

On July 1, 2022, Dimitri and Trust (“Moving Defendants”) filed a Motion to Dismiss Plaintiffs’ Appeal to be heard on August 24, 2022. On August 5, 2022, Plaintiffs filed an opposition.

There is no currently set trial date.

PARTY’S REQUEST

Moving Defendants request the Court dismiss Plaintiffs’ appeal as it was filed late.

Plaintiffs request the Court deny the motion.

LEGAL STANDARD

CRC 8.104 provides “Except as provided in rule 8.66, no court may extend the time to file a notice of appeal. If a notice of appeal is filed late, the reviewing court must dismiss the appeal.”

CCP § 916 states “The perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.”

DISCUSSION

This Court does not have jurisdiction to dismiss an appeal on the basis of untimely filling. Pursuant to CRC 8.104, the reviewing court must dismiss the appeal. As such, the Court denies the motion.

CONCLUSION

Defendants Dimitri George Trust and Dimitri George’s Motion to Dismiss Appeal is DENIED.

Defendant is ordered to give notice of this ruling.