Judge: Michelle Williams Court, Case: 20STCV43312, Date: 2024-03-28 Tentative Ruling

Case Number: 20STCV43312    Hearing Date: March 28, 2024    Dept: 1

20STCV43312           LEO CONO vs FACEBOOK.COM, INC., et al.

Plaintiff’s Motion for Order Appointing Referee

TENTATIVE RULING:  Leo Cono’s Motion for Order Appointing Referee is DENIED in its entirety.  Clerk to give notice to all parties.

On November 13, 2020, Leo Cono filed 20STCV43312 against Facebook.com, Inc., Mark Zuckerberg, and Priscilla Chan. On June 21, 2021, the court issued an order sustaining Defendants’ demurrer without leave to amend. The court entered a judgment of dismissal on July 12, 2021.

On February 9, 2024, Leo Cono filed the instant Motion for Order Appointing Referee, which states that it seeks to appoint the California Highway Patrol as a referee.

Discussion

In the motion on optional Judicial Council form ADR-109, Cono seeks the appointment of a referee pursuant to Code of Civil Procedure section 639(d). (Mot. at ¶ 2(b)(d).)

Cono’s motion is not accompanied by a valid proof of service indicating service upon the parties to this action. The “‘Certificate of Service’ - California Rule of Court 2.251 - Proof of electronic service” solely indicates service upon “Unlimited Civil Filing Clerk c/o Presiding Judge Samantha Jessner - Stanley Mosk Courthouse.” Accordingly, the Court lacks jurisdiction to provide any relief to Cono in connection with this motion. (Code Civ. Proc. §§ 1005; 1013b; Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 509.)

Additionally, as noted above, the instant action was dismissed on June 21, 2021. The Court also lacks jurisdiction to appoint a referee in a dismissed action. Generally, “[a] dismissal terminates an action. [Citation] A superior court thereafter has no subject matter jurisdiction to grant relief other than costs and fees as appropriate. [Citation] A court may also entertain a motion to vacate on grounds of mistake, excusable neglect and so forth” under Code of Civil Procedure section 473. (Hagan Engineering, Inc. v. Mills (2003) 115 Cal.App.4th 1004, 1008.) The Court may also enter other orders after a dismissal not applicable here. (See e.g. Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1022.)

Moreover, Cono’s motion relies upon Code of Civil Procedure section 639(d), which only applies to a “special proceeding.” Even if Cono demonstrated proper service and this action remained pending, it is not a special proceeding to which Code of Civil Procedure section 639(d) applies. (People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 725 (“The term ‘special proceeding’ applies only to a proceeding that is distinct from, and not a mere part of, any underlying litigation.”); Aetna Life Ins. Co. v. Superior Court (1986) 182 Cal.App.3d 431, 435 (“this statute does not apply to law and motion proceedings in an ordinary civil action, as we have here.”); Code Civ. Proc. §§ 22, 23; People v. Yartz (2005) 37 Cal.4th 529, 538 (“the term ‘civil action’ is by definition not a ‘special proceeding’ (Code Civ. Proc., §§ 22, 23, 30), and ‘civil action’ does not have a different meaning from ‘civil suit.’”).)

Cono’s motion cites “‘Rule 8.485. Application’ - (a) ‘Writ of Prohibition’ (Extra Ordinary / Special Proceeding),” which is inapplicable as it applies to the California Supreme Court and Courts of Appeal, not the trial court. (Cal. R. Ct., rule 8.485(a) (“the rules in this chapter govern petitions to the Supreme Court and Court of Appeal for writs of mandate, certiorari, or prohibition, or other writs within the original jurisdiction of these courts.”).) Similarly, Cono’s motion cites “Rule 10.1000,” which does not permit a trial court to transfer or reclassify an action. (Cal. R. Ct., rule 10.1000 (governing the ability of the California Supreme Court and Court of Appeal administrative presiding judge to transfer a cause).)

Cono’s motion fails to state a basis for the appointment of a referee related to this dismissed action.

For all the reasons stated herein, the motion is DENIED.