Judge: Frank M. Tavelman, Case: 20BBCV00050, Date: 2022-08-30 Tentative Ruling

Case Number: 20BBCV00050    Hearing Date: August 30, 2022    Dept: A

ALLEGATIONS:

Danniel Madrid and Scott Eric Rosenstiel (“Plaintiffs”) filed suit against Defendants Candace Howell, Janelle Howell, Ryan Howell, Casey Ogden, Kayla Irene Ogden, Gunter Zielke a.k.a. Gunter Maria Zielke a.k.a. Merlin Silk a.k.a. Alex Helmlin, Prapapun Zielke a.k.a. Prapapun Chaiprasert a.k.a. Gigi Zielke, and Federal Homeowners Relief Foundation ("Defendants") on January 16, 2020, alleging nine causes of action: (1) Derivative Suit; (2) Ejectment; (3) Damages; (4) Tortious Interference with Contract; (5) Violations of the California Constitutional Right to Privacy; (6) Violations of the Ralph Act, Civ. Code § 51.7; (7) Violations of the Bane Act, Civ. Code § 52.1; (8) California Fair Employment and Housing Act, Gov. Code § 12955; and (9) Violation of the Unfair Competition Law, Bus. & Prof. § 17200 et. seq.

HISTORY:

The Court received the Motion to Set Aside Dismissal filed by Plaintiffs on July 14, 2022. The Court has not received any opposition or reply.

The Complaint was filed on January 16, 2020 and set for an Order to Show Cause  Re Proof of Service on September 2, 2020 (advanced and continued on Court’s motion from prior dates).  On September 2, 2020, Plaintiff failed to appear.  The OSC continued to December 8, 2020.  On that date counsel appeared and requested more time.   The OSC was put over to May 11, 2021.  Additional extensions were provided to October 5, 2021; however, again Plaintiff failed to appear.  The OSC Re: dismissal was set for January 13, 2022, again Plaintiff failed to appear.  Judge W. Stewart dismissed the case without prejudice for (1) failing to comply with Trial Court Delay Reduction Act, including failure to prosecute; (2) failure to respond to the Court’s Order to Show Cause.  The Court notes that the dismissal was two days short of the two-year requirement under CCP § 583.410.

Chad Thomas Pratt appeared on August 12, 2022, and argued the case, and the Court vacated the dismissal by Judge Stewart.  The Court has been advised that Mr. Pratt has been suspended by the State Bar of California effective August 10, 2022.  He was not authorized to practice law.  His inability to practice was not disclosed to the Court.

RELIEF REQUESTED:

Plaintiffs move for relief from dismissal.  Counsel seeks relief under two basis:  (1) the original order was contrary to the Code of Civil Procedure because the dismissal took place two days prior to the two year minimum date, and (2) the dismissal was the result of attorney neglect and relief is warranted under CCP 473(b).

ANALYSIS:

I.          LEGAL STANDARD

A.    Discretionary Relief

A trial court may, “upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” In order for the Court to grant discretionary relief, the moving party must (1) “be accompanied by a copy of the answer or other pleading proposed to be filed therein,” (2) “be made within a reasonable time, in no case exceeding six months,” but (3) “[n]o affidavit or declaration of merits shall be required of the moving party.” (CCP § 473(b).) Whether the filing is made within a reasonable time is a matter left to the discretion of the trial court, and depends upon the specific circumstances of the delay, including the cause for the attorney’s mistake, inadvertence, surprise, or excusable neglect. (Minick v. City of Petaluma (2016) 3 Cal. App. 5th 15; Comunidad En Accion v. Los Angeles City Council (2013) 219 Cal. App. 4th 1116, 1133–34.)

B.     Mandatory Relief

"[T]he court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties (CCP § 473(b).)

C.     Discretionary Dismissal for Delay in Prosecution

CCP § 583.130 provides that “[i]t is the policy of the state that a plaintiff shall proceed with reasonable diligence in the prosecution of an action but that all parties shall cooperate in bringing the action to trial or other disposition. Except as otherwise provided by statute or by rule of court adopted pursuant to statute, the policy favoring the right of parties to make stipulations in their own interests and the policy favoring trial or other disposition of an action on the merits are generally to be preferred over the policy that requires dismissal for failure to proceed with reasonable diligence in the prosecution of an action in construing the provisions of this chapter.” However, CCP § 583.130 does not limit the Court’s authority to dismiss an action or impose other sanctions. (CCP § 583.150.)

CCP § 583.410 provides that the Court may in its discretion dismiss an action for delay in prosecution. The court may not dismiss an action for delay in prosecution unless one of the following conditions specified in Section 583.420 has occurred (i.e., not bringing the case to trial within 3 years after the action is commenced against defendant, or 2 years after the action is commenced if the Judicial Counsel so prescribes for reasons affecting the conduct of litigation). On ruling on such a motion, the Court must consider the relevant factors stated in CRC Rule 3.1342(e).

II.        MERITS

Plaintiffs argue that the Court improperly dismissed the instant action pursuant to CCP §583.410 on January 13, 2022 because its authority to do so was qualified by CCP §583.420, which only permits discretionary dismissal by a court after two years have passed since a case was filed. Plaintiffs also argue that the Court improperly dismissed the instant action under its sanction powers. Alternatively, Plaintiffs request relief under the discretionary and mandatory relief provisions of CCP § 473. 

The Court dismissed the instant action on January 13, 2022 and cited several reasons as its rationale: Plaintiffs’ failure to appear, failure to respond to the Court’s OSC Re: Failure to File Proof of Service, and failure to comply with the Trial Court Delay Reduction Act. The Court cited to CCP § 583.410 and CRC 3.1340 in making this ruling.

Plaintiffs argue in their brief that they move for relief under CCP § 473 as an alternative remedy; but they do not state the grounds upon which they move for their “primary” remedy. Plaintiffs cannot be making a motion for reconsideration, which must be filed within 10 days after service of the relevant ruling, as the instant motion was filed sixth months and one day after the Court’s dismissal ruling. (CCP § 1008(a).) Thus, the only authority upon which Plaintiffs may move to vacate the Court’s January 13, 2022 ruling is CCP § 473(b).

Both the discretionary and mandatory provisions of CCP § 473(b) provide a six-month deadline for relief. Within the context of CCP §473(b), neglect is excusable if a reasonably prudent person under similar circumstances might have made the same error.  Huh v. Want (2007) 158 Cal. App. 4^th 1406, 1419.  The section is to be liberally construed.  Austin v. Los Angeles Unified School District (2016) 244 Cal. App. 4^th 918, 928.  However, the relief sought is not without time limits.

 CCP §473 requires that a motion for relief be made “within a reasonable time, in no case exceeding six months, after the dismissal.  CCP §473(b).  The time limit is jurisdictional.    As discussed by the California Supreme Court, the time limit is jurisdictional; the court has no power to grant relief under CCP 473 once the time has lapsed.  Rappleyea v. Campbell (1994) 8 Cal. 4^th 975, 980.

In some instances, a court may still vacate a judgment on equitable grounds even if statutory relief is unavailable.  Rappleyea, supra, 8 Cal. 4^th at 981.   Such relieve is available when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits.  Ibid.  The party seeking relief is still obliged to present a satisfactory excuse for the needed relief and demonstrate diligence in seeking to set aside the judgment.  Id 982.  After six months from the date of the final judgment, “there is a strong public policy in favor of the finality of judgments and only in exceptional circumstances should relief be granted.” 

Counsel provided a declaration to the Court; however, that declaration’s lack of an appropriate digital signature does not meet the requirements for documents filed under penalty of perjury pursuant to California Rules of Court.  CRC 2.257 sets forth requirement for filings with the court and distinguishes between signatures under penalty of perjury and those that are not. Rule 2.257(a) appears to adopt the same definition of “Electronic Signature” as used in Cal. Civ C. 1633.2.  However, Rule 2.257(b) mandates that documents signed under penalty of perjury have express requirements, that are beyond a basic Electronic Signature.  Nonetheless, the Court will consider its contents.

As mandated by CCP §473(b), a motion to vacation must be filed within reasonable time and the statute sets forth an outer limit of six months.   By having done so, the Legislature intended that motions should be filed sooner than six months, when reasonably able to do so.  Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal. 2d 523, 531; Stafford v. Mach (1998) 64 Cal. App. 4^th 1174, 1187.   In this instance, Counsel does not set forth any reason for waiting six months after Judge Stewart’s dismissal of the action and notice having been mailed.   Furthermore, Counsel did not comply with the outer limits of CCP 473(b) by filing the motion six months and a day after the dismissal.  As discussed by our Supreme Court in Rappleyea, the time limit in CCP 473 is jurisdictional, and this court lacks the power to grant the request.  Rappleyea v. Campbell, supra, 8 Cal. 4^th at 980.

In this instance, Counsel failed to serve any of the multiple parties to the lawsuit for two days short of two years, was noticed that the next court day would involve a potential dismissal, failed to appear at that next court date, having been mailed notice of the dismissal took no action for more than six months, filed his motion for relief outside the statutory time period of six months after the original dismissal from Judge Stewart, and failed to provide good cause for not timely filing the motion to vacate the dismissal. Counsel’s Declaration specifically states that counsel learned about the dismissal and decided not to file a motion to vacate because he did not have a physical address for the Zielkes at the time. (Decl. Pratt, ¶ 6.)  This Court does not find that to be good cause.

As discussed in Rappleyea, it is the belief of this Court that jurisdiction has lapsed.

As to Judge Stewart’s initial dismissal, this Court makes no opinion or ruling.  For one superior court judge, no matter how well intended, even if correct as a matter of law, to nullify a duly made, erroneous ruling of another superior court judge places the second judge in the role of a one-judge appellate court. "The Superior Court of Los Angeles County, though comprised of a number of judges, is a single court and one member of that court cannot sit in review on the actions of another member of that same court." In re Alberto (2002) 102 Cal.App.4th 421, 427-428 citing People v. Woodard (1982) 131 Cal. App. 3d 107, 111.  Elsea v. Saberi (1992) 4 Cal. App. 4th 625, 630-631 [second judge without power to vacate default judgment entered by first judge]; Church of Scientology v. Armstrong (1991) 232 Cal. App. 3d 1060, 1068-1071 [reversing order unsealing record after previous judge ordered record sealed]; Micro/Vest Corp. v. Superior Court (1984) 150 Cal. App. 3d 1085, 1088-1091 [second judge may not determine that first judge improperly struck Code Civ. Proc., § 170.6 challenge].)

Although on August 12^th, Mr. Pratt, who represented himself as the attorney of record on the case sought “mercy” of the Court, as a lawyer suspended from practice, his representations the Court now finds were without merit and lack credibility.   The Court will vacate its prior ruling and return to its tentative ruling as its final ruling.

The Court finds that the motion is untimely and denies the instant motion.  The dismissal by Judge Stewart is reinstated.  As Mr. Pratt was unauthorized to practice law, the Court’s order will be nunc pro tunc to the original hearing date of August 12, 2022.  A copy of this ruling shall be forwarded to the State Bar of California, Office of Chief Trial Counsel.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

The Court calendared an Order to Show Cause as to why its prior ruling regarding the Motion to Set Aside Dismissal should not be vacated.   The matter came on regularly for hearing on August 30, 2022, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE COURT VACATES ITS PRIOR RULING CONCERNING THE MOTION TO SET ASIDE DISMISSAL.  THE MOTION TO SET ASIDE THE DISMISSAL IS DENIED NUNC PRO TUNC AUGUST 12, 2022.

THE COURT FURTHER ORDERS THE CLERK OF THE COURT TO MAIL A COPY OF THIS MINUTE ORDER TO THE STATE BAR OF CALIFORNIA, OFFICE OF THE CHIEF TRIAL COUNSEL.

IT IS SO ORDERED.

DATE:  August 30, 2022                               _______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles