Judge: Michael E. Whitaker, Case: SC125247, Date: 2024-11-21 Tentative Ruling

Case Number: SC125247    Hearing Date: November 21, 2024    Dept: 207

TENTATIVE RULING - NO. 1

BACKGROUND

            On October 2, 2024, the Court granted Defendants Rudy Eisler, individually and as trustee for the Eisler Family Living Trust; Stephen Eisler, individually and as trustee for the Eisler Family 2000 Living Trust; Theresa Eisler, individually and as trustee for the Eisler Family 2000 Living Trust; Wendy Eisler, individually and as trustee for the Eisler Family Living Trust; Eisler Investments; West End Properties; Robert Sundeen; Carole Sundeen; and Dustin Wells’ (“Defendants”) Motion to Dismiss Plaintiff Yazmin Ortiz’s (“Plaintiff”) action for failure to bring the case to trial within five years.  (See Minute Order, Oct. 2, 2024.) 

            The Court entered an Order dismissing the case on October 3, 2024, and on October 8, 2024, the Court entered judgment in favor of Defendants.

Plaintiff now moves for reconsideration of the Courts order granting Defendants’ motion to dismiss.  Defendants oppose the motion and Plaintiff replies.

LEGAL STANDARD

Under Code of Civil Procedure section 1008, subdivision (a), “[w]hen an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make an application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.  The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”  (Code Civ. Proc., § 1008, subd. (a).)  Where the statutory requirements are met, reconsideration should be granted; upon reconsideration, however, the court may simply reaffirm its original order.  (Corns v. Miller (1986) 181 Cal.App.3d 195, 202.) 

The moving party on a motion for reconsideration “must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time[.]” (Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342, internal quotations & citations omitted; see New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 221 [on a motion for reconsideration, a party must present new or different facts, circumstances, or law, which the moving party “could not, with reasonable diligence, have discovered or produced” in connection with the original hearing].)

JURISDICTION

“After entry of judgment, a trial court has no further power to rule on a motion for reconsideration.”  (Ramon v. Aerospace Corp. (1996) 50 Cal.App.4th 1233, 1236.)  “Once judgment has been entered […] the court may not reconsider it and loses its unrestricted power to change the judgment. It may correct judicial error only through certain limited procedures such as motions for new trial and motions to vacate the judgment.”  (Ibid.)

This is true even where the motion for reconsideration was filed before judgment, but judgment was entered prior to the scheduled hearing.  (See Safeco Insurance Company of Illinois v. Architectural Facades Unlimited, Inc. (2005) 134 Cal.App.4th 1477.)

Thus, the law is clear that entry of the judgment divests the Court of jurisdiction to hear Plaintiff’s motion for reconsideration.  Once judgment has been entered, the parties are limited to pursuing post-judgment remedies.

CONCLUSION AND ORDER

            Therefore, Plaintiff’s motion for reconsideration is denied because the Court no longer has jurisdiction to rule on it.

            The Clerk of the Court shall provide notice of the Court’s ruling.   

DATED:  November 21, 2024                       ___________________________

                                                                  Michael E. Whitaker

                                                                  Judge of the Superior Court

 TENTATIVE RULING - NO. 2

DEPARTMENT          207

HEARING DATE       November 21, 2024

CASE NUMBER        SC125247

MOTION                    Motion to Set Aside/Vacate Dismissal

MOVING PARTY      Plaintiff Yazmin Ortiz

OPPOSING PARTIES            Defendants Rudy Eisler, Individually and as Trustee for the Eisler Family Living Trust; Stephen Eisler individually and as Trustee for the Eisler Family 2000 Living Trust; Theresa Eisler, individually and as a Trustee for the Eisler Family 2000 Living Trust; Wendy Eisler, individually and as Trustee for the Eisler Family Living Trust; Eisler Investments; West End Properties; Robert Sundeen; Carole Sundeen; and Dustin Wells

MOTION

            On October 2, 2024, the Court granted Defendants Rudy Eisler, individually and as trustee for the Eisler Family Living Trust; Stephen Eisler, individually and as trustee for the Eisler Family 2000 Living Trust; Theresa Eisler, individually and as trustee for the Eisler Family 2000 Living Trust; Wendy Eisler, individually and as trustee for the Eisler Family Living Trust; Eisler Investments; West End Properties; Robert Sundeen; Carole Sundeen; and Dustin Wells’ (“Defendants”) Motion to Dismiss Plaintiff Yazmin Ortiz’s (“Plaintiff”) action for failure to bring the case to trial within five years.  (See Minute Order, Oct. 2, 2024.) 

            The Court entered an Order dismissing the case on October 3, 2024 and on October 8, 2024, the Court entered judgment in favor of Defendants.

Plaintiff now moves to set aside/vacate the dismissal.  Defendants oppose the motion and  Plaintiff replies.

ANALYSIS

                          I.          DISCRETIONARY AND MANDATORY RELIEF

Code of Civil procedure section 473 “includes a discretionary provision, which applies permissively, and a mandatory provision, which applies as of right.” (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25 (hereafter Minick).)  “Section 473 is a remedial statute to be “applied liberally” in favor of relief if the opposing party will not suffer prejudice.  Because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.  Unless inexcusable neglect is clear, the policy favoring trial on the merits prevails.”  (Minick, supra, 3 Cal.App.5th at p. 24 [cleaned up].) 

The party or the legal representative must seek such relief “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Ca.App.4^th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”]).  “The six-month limit is mandatory; a court has no authority to grant relief under section 473, subdivision (b), unless an application is made within the six-month period.”  (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340, citations omitted.) 

A.        DISCRETIONARY RELIEF

Per Code of Civil Procedure section 473, subdivision (b), a court may “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.”

B.    MANDATORY RELIEF

Notwithstanding any other requirements of this section, the 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.

(Code Civ. Proc., § 473, subd. (b).)  “In considering whether the trial court properly denied relief under section 473(b), the first question is the sufficiency of defendants' showing of attorney fault, if believed, to trigger the mandatory relief provisions of that statute.”  (Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4th 868, 896, disapproved on other grounds by Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830 (hereafter Standard).)  “Under section 473(b), a party is entitled to relief from a default and resulting judgment whenever, on timely application for relief, his attorney ‘attest[s] to his or her mistake, inadvertence, surprise, or neglect’ in connection with the default or the judgment.”  (Ibid.) 

            Plaintiff does not provide an affidavit demonstrating her mistake, inadvertence, surprise, or excusable neglect.  Plaintiff’s introduction outlines arguments that the judgment is void because (1) the Court dismissed Plaintiff’s case in retaliation for Plaintiff’s filing of two statements of disqualification; (2) the dismissal was entered due to the Court’s bias against Plaintiff; (3) Plaintiff has gathered new evidence to support her claims; and (4) opposing counsel lied and committed fraud upon the Court to obtain the dismissal, and (5) Plaintiff will be prejudiced if the dismissal is not vacated.

            However, the body of the brief contains no arguments or evidence about Plaintiff’s first two unfounded accusations that the Court acted out of retaliation or bias.  Nor does Plaintiff provide any new evidence warranting relief. 

            Plaintiff’s declaration merely indicates that the Court told Defendants’ counsel at the Final Status Conference “that’s on you” as to whether they wanted to bring a Motion to Dismiss for failure to bring the case to trial within five years, after which Defendants’ counsel did file such a motion to dismiss.  (Ortiz Decl. ¶¶ 4-5.)  Contrary to Plaintiff’s characterization, the Court does not find that this comment constitutes legal advice or a “wink-wink tip” to Defendants’ counsel, but rather a general disclaimer that whether a party wishes to bring a motion is up to that party to decide.

As for Plaintiff’s fourth argument that opposing counsel lied and committed fraud upon the Court, Plaintiff argues only that Defendants’ counsel erroneously told the Court that the Court of Appeal had dismissed Plaintiff’s writ of mandate due to Plaintiff’s status as a vexatious litigant, whereas the Court of Appeal actually rejected Plaintiff’s filing because it did not contain a pre-filing order form, bookmarks, or a proof of service. 

Plaintiff’s status as a vexatious litigant means that Plaintiff must satisfy certain prefiling requirements before Plaintiff is able to file new cases, including writs with the Court of Appeal.  Thus, the Court does not find Defendants’ counsel’s representation that Plaintiff’s writ was dismissed for failure to comply with the pre-filing requirements for a vexatious litigant was substantially untrue.  But even if Defendants’ counsel were mistaken about the reason Plaintiff’s writ was dismissed, that mistake is immaterial to the Court’s decision to dismiss Plaintiff’s action for failure to bring it to trial within five years.

Plaintiff also argues generally that the dismissal was improper because Defendants’ counsel had requested a continuance.  The Court already addressed this argument in connection with its order granting Defendant’s motion to dismiss for failure to bring the case to trial within five years.  Specifically, the Court reviewed the December 6, 2022 Minute Order, and found no reference to a 5-year deadline, a trial continuance, or any other reason why Defendants would be estopped from asserting the 5-year deadline. 

Plaintiff now asserts in her declaration that Defendant’s counsel requested a continuance to “do a mediation” at the March 26, 2024 hearing.  The Court similarly has no record of Defendants’ counsel making or the Court granting any such request for a continuance at the March 26, 2024 hearing, nor has Plaintiff provided any such record.  Rather, in connection with Plaintiff’s demurrer to Defendants’ first amended answer, the Court found that Plaintiff failed to adequately meet and confer prior to filing the demurrer, and continued the hearing on the demurrer to permit the parties to meaningfully meet and confer first. 

Plaintiff also argues that the complaint should have been dismissed without prejudice, and that the Court exceeded its jurisdictional authority in dismissing the case with prejudice.  In support, Plaintiff cites to Code of Civil Procedure section 581, which provides that the Court may dismiss an action without prejudice pursuant to the provisions of Chapter 1.5 (commencing with Section 583.110.)

Section 581 clearly refers to discretionary dismissals for delay in prosecution. (See Code Civ. Proc., § 581, subd. (b) [“An action may be dismissed …”] [emphasis added].) 

By contrast, when a Plaintiff fails to bring an action to trial within five years, dismissal is “mandatory” and is “not subject to extension, excuse, or exception except as expressly provided by statute.”  (Code Civ. Proc., § 583.360.) 

If the Court were able to dismiss the action pursuant to Section 583.360’s mandate without prejudice and allow Plaintiff to simply revive it, that would effectively be a backdoor “extension” or “exception,” which the statute expressly forbids, and which would render the five-year rule meaningless.  (Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 716 [standard rules of statutory construction prohibit any interpretation “that renders part of the statute meaningless or inoperative”].)

CONCLUSION

            For the foregoing reasons, the Court denies Plaintiff’s motion to set aside or vacate the dismissal of her action for failure to bring it to trial within five years. 

            The Clerk of the Court shall provide notice of the Court’s ruling. 

DATED: November 21, 2024                                                 ___________________________

Michael E. Whitaker

                                                                                          Judge of the Superior Court