Judge: Elaine Lu, Case: 22STCV29167, Date: 2023-08-07 Tentative Ruling
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Case Number: 22STCV29167 Hearing Date: August 7, 2023 Dept: 26
GERALD
MONTGOMERY, Plaintiff, v. THE
LAW OFFICE OF LEIBLE, MIRETSKY & MOSELY, LLC; MICHAEL MIRETSKY; and
CARLYN BLAKE, Defendants. |
Case No.: 22STCV29167 Hearing Date: August 7, 2023 [TENTATIVE] ORDER RE: PLAINTIFF’S MOTION FOR RECONSIDERATION OF THE
COURT’S MAY 19, 2023 ORDER |
Procedural Background
On September 8, 2022, Plaintiff Gerald Montgomery
(“Plaintiff”) filed the instant malpractice action against Defendants Leible, Miretsky
& Mosely, LLP – erroneously sued as The Law Office of Leible, Meretsky
& Mosely, LLC – (“Firm”), Michael Miretsky (“Miretsky”), and Carlyn Blake
(“Blake”). The claim asserts a single
cause of action for Intentional Tort.
The action was listed as a personal injury action and
initially assigned to Department 30 of the Personal Injury Hub Court presided
by the Honorable Jill Feeney. (Notice of
Assignment 9/8/22.) On October 31, 2022,
Plaintiff filed proof of service of the complaint and concurrently filed a
request for entry of default and clerk judgment against Defendants Firm and
Miretsky, which the Clerk’s office rejected as incomplete. (See Rejection of Default filed
10/31/22.) On the same day of October
31, 2022, Defendants Firm, Miretsky, and Blake filed a demurrer and motion to
strike portions of the complaint.
On November 1, 2022, Plaintiff filed a request for
default and court judgment against Defendants Firm and Miretsky, which was
denied because Defendants had filed a responsive pleading -- a demurrer – on October 31, 2022. (See Rejections of Defaults filed
11/2/22.) In addition, on November 1,
2022, Plaintiff dismissed Defendant Blake from the instant action without
prejudice.
On December 20, 2022, the Court – presided by the
Honorable Jill Feeney – determined that the instant action was erroneously
filed as a Personal Injury Action and was truly an attorney malpractice suit
and therefore referred the instant action to Department 1 for reassignment, and
Judge Feeney took all hearings off calendar so that the new department could set
new hearing dates. (Minute Order
12/20/22.) On December 27, 2022,
Department 1 assigned the instant action to the current department (Department
26). (Minute Order 12/27/22.)
On January 30, 2023, Plaintiff filed a Motion for Default
and for Default Judgment. On January 31,
2023, Plaintiff again filed requests for entry of default against Defendant
Firm, which were denied because Defendant Firm had filed a responsive
pleading. (See Rejections of
Defaults filed 2/2/23 and 2/2/23.) On
February 14, 2023, Plaintiff filed an ex parte application to advance
Plaintiff’s Motion for Default and for Default Judgment. The Court granted the ex parte application
advancing the motion to February 15, 2023 and denied Plaintiff’s motion on the
merits. (Minute Order 2/15/23.)
On February 27, 2023, Plaintiff filed a motion to set
aside and vacate the February 15, 2023 Minute Order. On April 5, 2023, Defendants Firm and
Miretsky (jointly “Defendants”) refiled the instant demurrer and motion to
strike with the new hearing date of May 11, 2023. On April 19, 2023, Plaintiff filed an amended
motion to vacate the February 15, 2023 Minute Order. On April 24, 2023, Plaintiff filed an ex
parte application to advance the motions to set aside and vacate the February
15, 2023 Minute Order, which the Court took off calendar because Plaintiff
failed to appear at the hearing. (Minute
Order 5/1/23.)
On May 8, 2023, Plaintiff filed an ex parte application
to advance his motions to set aside and vacate the February 15, 2023 Minute
Order. The Court granted the ex parte application and advanced the motions to
vacate the February 15, 2023 order to be heard in conjunction with Defendants’
demurrer and motion to strike. The Court
took Defendants’ demurrer and motion to strike, and Plaintiff’s motions to set
aside and vacate the February 15, 2023 Minute Order, under submission. (Minute Order 5/11/23.)
On May 15, 2023, Plaintiff filed an ex parte application
“PLAINTIFF NOTICE OF EX PARTE MOTION FOR RECONSIDERTION OF DEFAULT &
DEFAULT JUDGMENT FILED 1/30/23 WHICH INCLUDED RECONSIDERATION (IF
APPLIABLE)”. On May 17, 2023, Defendants
filed a motion to compel discovery. On
May 17, 2023, Plaintiff filed an ex parte application for Court Signed
Proposed Order, File With Motion to Vacate Et. Al on 4/19/2023 and an ex parte
application “FOR SIGNED PROPOSED ORDER FILED 4”.
On May 19, 2023, the Court denied Plaintiff’s
ex parte applications and Defendants’ motion to compel discovery, sustained
Defendants’ demurrer without leave to amend, granted Defendants’ motion to
strike without leave to amend, and ordered Defendants to file a proposed judgment
of dismissal. (Order 5/19/23; Minute
Order 5/19/23.)
On May 23, 2023, Defendants filed a
proposed judgment of dismissal. In
addition, on May 23, 2023, Plaintiff filed the instant motion for
reconsideration of the Court’s May 19, 2023 Order. The Court did not sign Defendants’ proposed
judgment because Plaintiff’s motion for reconsideration was pending. On July 13, 2023, the Court advanced the
hearing date for the instant motion from October 24, 2023 to August 7,
2023. (Minute Order 7/13/23.)
On July 18, 2023, Plaintiff filed a
notice of appeal of the Court’s May 19, 2023 Order. On July 24, 2023, Defendants filed an
opposition to the instant motion for reconsideration. On August 2, 2023, Plaintiff filed a
reply. On August 3, 2023, Plaintiff
filed an ex parte application seeking to continue the instant motion due to an
emergency.
Discussion
Plaintiff’s ex parte application to continue the instant
motion is DENIED as unnecessary because the Court lacks jurisdiction to hear
the instant motion.
“Under [Code of Civil Procedure] section 916, ‘the trial
court is divested of’ subject matter jurisdiction over any matter embraced in
or affected by the appeal during the pendency of that appeal.” (Varian Medical Systems, Inc. v.
Delfino (2005) 35 Cal.4th 180, 196–197.) “The purpose of the automatic
stay under section 916 is to preserve ‘the status quo until the appeal is
decided’ [Citation], by maintaining 'the rights of the parties in the same
condition they were before the order was made[.]” [Citation]. Otherwise, the
trial court could render the ‘appeal futile by altering the appealed judgment
or order by conducting other proceedings that may affect it.’” (Id. at p.198.)
Here, Plaintiff has filed an appeal of the Court’s May
19, 2023 Order. Reconsidering the
instant motion could render the appeal futile. Thus, this action is
automatically stayed in its entirety pending the appeal, and any actions taken
in this regard would be void. (See e.g.,
Young v. Tri-City Healthcare Dist. (2012) 210 Cal.App.4th 35, 53 [“the
trial court lacked subject matter jurisdiction to continue to entertain the
District's reconsideration motion, as of the time that the District filed its
appeal of the October order that reconsidered the original grant of the
District's motion to strike. By seeking appellate relief that would have
reinstated the original grant of the District's motion to strike, the
District's filing of its notice of appeal ousted the trial court of
jurisdiction to continue to consider the same substantive issues. Thus, when
the trial court issued its [Reconsideration] order, it was a void act.”].) Accordingly, the Court lacks jurisdiction to
hear this motion at this time due to Plaintiff’s pending appeal seeking review
of the same matters at issue in Plaintiff’s motion for reconsideration.
CONCLUSION AND ORDER
Based
on the foregoing, Plaintiff’s Motion for Reconsideration of the Court’s May 19,
2023 Order is TAKEN OFF CALENDER. If Plaintiff wishes
to pursue Plaintiff’s Motion for Reconsideration of
the Court’s May 19, 2023 Order, then within ten days of issuance of the remittitur, Plaintiff must
file and serve a properly noticed ex parte application requesting that the
Court re-calendar Motion for Reconsideration of
the Court’s May 19, 2023 Order.
Plaintiff’s ex parte application to continue the hearing
on Plaintiff’s Motion for Reconsideration is DENIED
AS MOOT.
The
Court’s Judicial Assistant is to provide notice of this order to all parties.
DATED: August ___, 2023 ___________________________
Elaine
Lu
Judge
of the Superior Court