Judge: David S. Cunningham, Case: BC672307, Date: 2022-12-19 Tentative Ruling

Case Number: BC672307    Hearing Date: December 19, 2022    Dept: 11

Tentative Ruling Re: First Amended Proposed Settled Statement Re: BC672307 (Kennedy)

Date:                           12/19/22

Time:                          10:30 am

Moving Party:           Lary Kennedy, et al. (“Plaintiffs”)

Opposing Party:        Tiltware LLC (“Tiltware”)

Department:              11

Judge:                        David S. Cunningham III

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TENTATIVE RULING

The Court orders Plaintiffs to file and serve a second amended proposed settled statement.

BACKGROUND

At the last hearing, the Court found the initial proposed settled statement deficient and ordered Plaintiffs to amend it.

Here, the Court analyzes the first amended proposed settled statement.

DISCUSSION

I.          On 8/14/17, Plaintiffs filed the complaint, naming several Defendants.

II.         On 12/18/18, Judge Ann Jones sustained the demurrers of Tiltware and Defendant Cozen O’Connor without leave to amend.

III.       On 9/10/20, Judge Jones dismissed the case pursuant to Code of Civil Procedure sections 583.210 and 583.250 for failure to serve the remaining Defendants within three years after the filing of the complaint.[1]

IV.       On 10/15/20, Plaintiffs filed a motion for new trial, challenging Judge Jones’s orders sustaining the demurrers and dismissing for failure to serve.

V.        On 11/16/20, Judge Jones held a hearing and took the motion for new trial under submission.

VI.       On 12/1/20, Judge Jones denied the motion for new trial and dismissed the complaint.

VII.      On 1/5/21, Plaintiffs filed a notice of appeal as to the 9/10/20 and 12/1/20 orders.

VIII.     On 9/27/21, the Clerk of the Court issued a notice of default, stating that (A) Plaintiffs’ “appeal has been placed in default pursuant to” Rule of Court 8.140(a), (B) the appeal “will be referred to the Court of Appeal for dismissal if you fail to correct the defect and comply with this notice[,]” and (C) Plaintiffs must file and serve a proposed statement on appeal, as required by Rule of Court 8.137(c)(1), by 10/12/21.  (9/27/21 Notice of Default (Unlimited Civil Appeals), pp. 1, 2.)

IX.       On 10/12/21, Plaintiffs filed the proposed settled statement.

X.        On 11/1/21, Titlware filed a response to the proposed settled statement.

XI.       On 9/21/22, this Court set 11/3/22 for a hearing regarding the proposed settled statement.  (See 9/21/22 Minute Order, p. 1 [stating that (A) “[t]he court’s docket reflects the filing of the Appellant’s Proposed Settled Statement Memo: Submitted to Presiding Judge Cowan, Dept. 1 on 07/19/2022[,]” (B) “[t]he Court has read and reviewed the Appellant’s Proposed Settled Statement Memo[,]” and (C) “[t]herefore, the Court sets the following: Hearing on Motion – Other Re: Settled Statement is scheduled for 11/03/22 at 09:00 AM in Department 11 at Spring Street Courthouse”].)

XII.      On 11/3/22, this Court rejected the proposed settled statement because Plaintiffs failed to attach “a copy of the judgment or order being appealed” and included editorial comments that contradicted Judge Jones’s 12/18/18 ruling.  (11/3/22 Ruling Re: Proposed Settled Statement, pp. 2, 3.)  The Court ordered Plaintiffs to provide an amended version and “comply with Rule of Court 8.137(d)[.]”  (Id. at p. 3.)

XIII.     On 11/17/22, Plaintiffs filed the first amended proposed settled statement.

Tiltware argues that the first amended proposed settled statement is untimely and should be denied since Plaintiffs failed to comply with the Clerk’s notice of default.  (See Tiltware’s Response, pp. 2-3.)

Given that the Court previously granted leave to amend, the Court considers this issue resolved and declines to revisit it.

Next, Tiltware contends the first amended proposed settled statement is defective because “Plaintiffs continue to embellish the record with editorial comments . . . when the record established by the Court’s minute orders is accurate, and there is no need for additional commentary.”  (Id. at p. 1.)  Tiltware “requests that any final settled statement strictly adhere to the language of the Court’s Minute Orders without any embellishment or alteration by Plaintiffs.”  (Id. at p. 2, emphasis in original.)

The first amended proposed settled statement corrects the two deficiencies highlighted last time and is otherwise identical to the initial proposed settled statement.  It does not contain new editorial comments, and Tiltware failed to challenge other editorial comments at the last hearing.

Nevertheless, it is true that Plaintiffs editorialize in paragraphs III.B., III.C., and III.D.  Despite the fact that Tiltware failed to challenge these paragraphs at the last hearing, the Court is inclined to order Plaintiffs to amend because the goal is to create a concise, neutral summary of the proceedings.  Requiring Plaintiffs to remove the editorial comments will advance the goal. 

As Tiltware suggests, one option for amending is to replace Plaintiffs’ language with the language in Judge Jones’s orders.

Another option is to replace Plaintiffs’ language with this Court’s timeline stated above, particularly timeline paragraphs I. through VI.

The Court favors the second option.  Judge Jones’s orders are attached to the first amended proposed settled statement as exhibits.  It would be redundant to make Plaintiffs repeat the language from the orders.  Moreover, the Court’s timeline is concise and neutral.

Consequently, Plaintiffs should file and serve a second amended proposed settled statement that:

* deletes paragraph III. of the first amended proposed settled statement;

* adds timeline paragraphs I. through VI; and

* attaches Judge Jones’s orders as exhibits.[2]