Judge: Lisa K. Sepe-Wiesenfeld, Case: BC639894, Date: 2023-08-22 Tentative Ruling

Case Number: BC639894    Hearing Date: August 22, 2023    Dept: N

TENTATIVE RULING 

Aaron G. Filler’s Motion for Leave to Intervene for Purposes of Establishing Standing to Appeal Disqualification is DENIED, WITHOUT PREJUDCE. 

Plaintiff Daniel L. Zuckerman to give notice. 

DISCUSSION 

Aaron G. Filler (“Filler”), Plaintiff Daniel L. Zuckerman (“Plaintiff”)’s former counsel in this action, moves the Court for an order granting Filler leave to intervene and become a party in this action so he may appeal the Court’s 2017 order disqualifying Filler as Plaintiff’s counsel. 

Code of Civil Procedure section 387, subdivision (b), provides, in relevant part, that “[a]n intervention takes place when a nonparty, deemed an intervenor, becomes a party to an action or proceeding between other persons.” Notably, “[i]ntervention cannot take place after an action has been dismissed.” (Andersen v. Barton Memorial Hospital, Inc. (1985) 166 Cal.App.3d 678, 685, fn. 9.) This action was dismissed on June 28, 2023, after a Notice of Settlement of Entire Case was filed with the Court on October 10, 2022. “It is a well settled proposition of law that, where a plaintiff has filed a voluntary dismissal of an action pursuant to Code of Civil Procedure section 581, subdivision (1), the court is without jurisdiction to act further in the action.” (Roski v. Superior Court (1971) 17 Cal.App.3d 841, 845.) Given the dismissal of this action, the Court lacks jurisdiction to act upon Filler’s motion. 

The Court notes that the order disqualifying Filler was entered in 2017; Filler waited nearly six years to move for leave to intervene so he could appeal the 2017 order. The fact that Filler filed the motion before the entry of dismissal does not compel a different conclusion, as the Court lacks jurisdiction to act where a case has been dismissed, and “the privilege of dismissing belongs to the plaintiff and may be exercised by him” without others’ knowledge. (Roski v. Superior Court, supra, 17 Cal.App.3d at p. 845.) 

Accordingly, Aaron G. Filler’s Motion for Leave to Intervene for Purposes of Establishing Standing to Appeal Disqualification is DENIED, WITHOUT PREJUDCE, to Filler filing another motion to set aside the dismissal or for other relief. 

The Court does not rule on the merits of Filler’s motion, as it lacks jurisdiction to do so. The Court notes Filler’s representations in his motion that he is “[l]imited attorney for Plaintiff” or that this motion is “Plaintiff’s Motion to Intervene” (see Mot., p. 1, l. 6; p. 11, l. 28; p. 12, l. 18) are not true, and admonishes Filler to discontinue holding himself out as Plaintiff’s counsel as he is not.

Plaintiff to give notice.