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

 

 

 

 

 

 

 

Superior Court of California

County of Los Angeles

Department 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