Judge: Richard Y. Lee, Case: 30-2022-01241266, Date: 2022-10-13 Tentative Ruling
Melinda Miramontes, of Donna, Texas, moves for an order withdrawing her appearance and Answer to the Complaint of Plaintiffs Omar Tayara; Muhammad Kalakech; and Ali Ezzulddin (“Plaintiffs”).
Defense counsel for Melinda Miramontes (“Miramontes”) of Donna, Texas, asserts that the Court should withdraw the Answer filed by Miramontes and her appearance pursuant to Code of Civil Procedure §128(a)(8) under which the Court has the inherent authority to allow the withdrawal of answers and appearances, as well as pursuant to Code of Civil Procedure sections 473(a) and (b) because an answer was erroneously filed by defense counsel before counsel had a chance to speak to Miramontes, and that defense counsel was not able to speak with Miramontes until July 21, 2022, whereupon defense counsel first learned that Miramontes who was served in Donna, Texas per Plaintiffs’ proof of service, was not the Miramontes that is named in the Complaint as a defendant, and was not involved in the subject accident that occurred on February 16, 2020, in Anaheim, California. Defense counsel provides that they immediately attempted to locate the correct Melinda Miramontes, but that efforts have been unsuccessful; and that defense counsel contacted Plaintiffs’ counsel informing them of her mistake and asking if Plaintiffs’ counsel would agree to withdraw the proof of service and to withdraw the answer, but that Plaintiffs’ counsel refused.
Plaintiffs argue that defense counsel argues that service of process was not proper, that pursuant to Code of Civil Procedure section 418.10, Miramontes waived all objections to service of process and personal jurisdiction by answering the Complaint and failing to simultaneously file a motion to quash, and that this is a thinly disguised motion to quash service of process which is untimely, improper, and must be denied. Plaintiffs also argue that Code of Civil Procedure section 473(b) does not apply to the withdrawal of a mistakenly filed answer; that Miramontes erroneously cites to Code of Civil Procedure section 128(a)(8) which has no bearing on withdrawing an answer; that the cases cited by Miramontes are not applicable to this case; and Miramontes does not present sufficient evidence that the “wrong” defendant was served.
Code of Civil Procedure section 128(a)(8) provides that the Court has the power “[t]o amend and control its process and orders so as to make them conform to law and justice.” (Code Civ. Proc. § 128(a)(8).) “This provision is consistent with and codifies the courts’ traditional and inherent judicial power to do whatever is necessary and appropriate, in the absence of controlling litigation, to ensure the prompt, fair, and orderly administration of justice.” (Neary v. Regents of Univ. of Calif. (1992) 3 Cal.4th 273, 276.) “It is also well established that courts have fundamental inherent equity, supervisory, and administrative power, as well as inherent power to control litigation before them. [Citation.]” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967.) The California Supreme Court in Rutherford also stated:
“In addition to their inherent equitable power derived from the historic power of equity courts, all courts have inherent supervisory or administrative powers which enable them to carry out their duties, and which exist apart from any statutory authority. (Bauguess v. Paine (1978) 22 Cal.3d 626, 636–637 [150 Cal.Rptr. 461, 586 P.2d 942]; Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272, 287–288 [245 Cal.Rptr. 873].) ‘It is beyond dispute that “Courts have inherent power ... to adopt any suitable method of practice, both in ordinary actions and special proceedings, if the procedure is not specified by statute or by rules adopted by the Judicial Council.” [Citation.]’ (Citizens Utilities Co. v. Superior Court (1963) 59 Cal.2d 805, 812–813 [31 Cal.Rptr. 316, 382 P.2d 356], fn. omitted.) That inherent power entitles trial courts to exercise reasonable control over all proceedings connected with pending litigation ... in order to insure the orderly administration of justice. (See Hays v. Superior Court (1940) 16 Cal.2d 260, 264–265 [105 P.2d 975].) ‘Courts are not powerless to formulate rules of procedure where justice demands it.’ (Adamson v. Superior Court (1980) 113 Cal.App.3d 505, 509 [169 Cal.Rptr. 866], citing Addison v. State of California (1978) 21 Cal.3d 313, 318–319 [146 Cal.Rptr. 224, 578 P.2d 941].) The Legislature has also recognized the authority of courts to manage their proceedings and to adopt suitable methods of practice. (See Code Civ. Proc., §§ 128, 187.)” (Asbestos Claims Facility v. Berry & Berry, supra, 219 Cal.App.3d at p. 19, 267 Cal.Rptr. 896.)”
(Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967.)
“This inherent power of a trial court is to be exercised to ‘ “achieve justice and prevent misuse of [its] proces[s]....” [Citation.]’ [Citation.] (Huang v. Hanks (2018) 23 Cal.App.5th 179, 181-182.) “[B]ecause courts should hear only actual disputes, and should prevent harassment of defendants, California courts possess the inherent authority to dismiss cases that are fraudulent or ‘vexatious.’ [Citations.]” (Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 758-759.)
Here, Miramontes seeks relief from the filing of the Answer to the Complaint that was filed on her behalf. The proof of service of summons indicates that a Melinda Miramontes was personally served at 523 N. 5th St., Donna, Texas 78537 on April 9, 2022. (Declaration of Kathryn Saldana (“Saldana Decl.”), ¶ 3; Ex. B.) Defense counsel, Attorney Saldana, provides that she was initially assigned the case on June 2, 2022, and that she attempted to contact Miramontes of Donna, Texas, but that she did not hear back from Miramontes until July 15, 2022, and did not speak to Miramontes until July 21, 2022, whereupon Attorney Saldana learned that Miramontes was not the Melinda Miramontes that was named as a defendant in the Complaint and involved in the subject accident. (Saldana Decl., ¶¶ 4-7.)
While Attorney Saldana was attempting to reach Miramontes and awaiting a response, Attorney Saldana filed an Answer to the Complaint on June 15, 2022, on behalf of both Defendants Melinda Miramontes and John Paul Mayberry as an answer to the Complaint was already overdue. (Saldana Decl., ¶ 5; Ex. C.)
Miramontes cites to Forbes v. Hyde (1866) 31 Cal. 342, Wilson v. Barry (1951) 102 Cal.App.2d 778, Israel v. Superior Court (1919) 43 Cal.App. 711, and Neihaus v. Superior Court (1977) 69 Cal.App.3d 340 in support of the general proposition that California courts have the inherent authority to allow the withdrawal of answers and appearances under various circumstances. Each of the cases is factually distinguishable, although each provides an example of where an answer was withdrawn.
Forbes v. Hyde (1866) 31 Cal. 342 (“Forbes”) was disapproved of in Hahn v. Kelly (1868) 34 Cal. 391, 404-405 on other grounds, but is factually distinguishable from the case at issue. Forbes involved attorneys who had filed an appearance for certain named defendants but inadvertently filed an answer for all of the defendants when they had intended to file an answer only for whom they had previously appeared. (Forbes, supra, 31 Cal. at pp. 345-346.) Upon discovering the mistake, and upon application and a proper showing promptly made to the court, the court issued an order allowing the attorneys to withdraw said answer and substitute another for the defendants they represented and for whom they intended to answer. (Id. at p. 346.) The withdrawal of the answer resulted in the withdrawal of the appearance. (Id. at p. 346-347.) In contrast, here, defense counsel intended to answer for Melinda Miramontes. The Court notes that the motion states, “Melinda Miramontes is a named policy holder of State Farm Mutual Automobile Insurance Company, and as part of her policy, she is entitled to representation by counsel provided by State Farm.” (Motion, 3:9-12.) It is unclear whether the Melinda Miramontes to whom defense counsel refers is Melinda Miramontes, the named defendant, or Melinda Miramontes of Donna, Texas, a non-party. Nevertheless, it appears that both would be entitled to representation by counsel provided by State Farm given that an answer was filed on behalf of the Melinda Miramontes of Donna, Texas and no distinction is made as to the named defendant.
Wilson v. Barry (1951) 102 Cal.App.2d 778 (“Wilson”) is likewise distinguishable from this case as the case involved the issue of whether an attorney lacked authority to appear on behalf of named defendants. (Wilson, supra, 102 Cal.App.2d at pp. 779-781.) There is a rebuttable presumption that an attorney has authority to appear for whom he professes to act. (Id. at p. 780.) Here, there is no assertion that Attorney Saldana lacked authority to appear on behalf of either Melinda Miramontes, and in fact, it appears that the opposite is true. As such, there is a presumption that Attorney Saldana has authority to appear for both the named Melinda Miramontes, and Melinda Miramontes of Donna, Texas.
Israel v. Superior Court (1919) 43 Cal.App. 711 (“Israel”) is distinguishable as the request in that case involved permission to withdraw an answer that had been filed and to file another answer, and the trial court’s order allowing a defendant to withdraw his answer and granting leave to file another which was made at the same time. (Israel, supra, 43 Cal.App. at p. 713.) The Court of Appeal stated, “we are of the opinion that the court, in the exercise of its discretion and acting within its jurisdiction, had power to permit the answer to be withdrawn and to grant defendant time, not exceeding thirty days in addition to that allowed by the code [], within which to file an answer.” (Id. at p. 714.) Israel did not involve the issue before the Court here as to whether the trial court may withdraw an answer and appearance on the basis that the party that filed the answer is not the correct defendant.
Lastly, Neihaus v. Superior Court (1977) 69 Cal.App.3d 340, 346 involved a motion to quash service of summons filed by named defendant who was resident of Nevada, which was denied because said defendant had filed an answer. (Neihaus, supra, 69 Cal.App.3d at p. 343.) Defendant also argued that the answer filed by his counsel was unauthorized by him and was filed upon the authority of his insurance carrier to protect its own interests. (Id. at p. 346.) The Court of Appeal found that the question of whether or not an attorney is authorized to appear is a question of fact to be tried by a fact-finder, and explained that “[t]he appropriate remedy for a party in a case of unauthorized representation or acts by his counsel is a motion to the trial court to withdraw the appearance, in which the facts can be determined.” (Ibid.) In the instant case, Miramontes does not argue that Attorney Saldana was not authorized to file the answer. Instead, Miramontes requests that the Court withdraw her Answer and appearance in the case altogether on the basis that she is not the correct defendant.
Although the cases cited by Miramontes do not involve or address the precise facts before this Court, the cases provide general authority for a court to withdraw an answer where circumstances warrant.
The Declaration of Miramontes provides that she was not involved in an auto accident on February 16, 2020, that she was not in the United States of America on that date, that she has never been to the State of California, and that she was born in 1988 and that she is informed that the Melinda Miramontes involved in the subject accident was born in the year 2000 “per the Traffic Collision Report.” (Declaration of Melinda Miramontes, ¶¶ 2-3; ROA 38.)
Although the Traffic Collision Report or other evidence establishing the year of birth for Melinda Miramontes involved in the subject accident is not submitted, no objections are made to the declaration, and the additional facts set forth in the declaration provide sufficient evidence that Miramontes of Donna, Texas is not the party involved in the accident that is the subject of the instant Complaint, and is not the correct defendant.
No evidence is submitted showing that Miramontes who was served in Donna, Texas is the correct defendant, or how Plaintiffs might otherwise be prejudiced.
Moreover, there is insufficient evidence showing that Attorney Saldana has authority to represent the correct Melinda Miramontes.
Consequently, the Court is inclined to exercise its inherent authority to control proceedings before it and to ensure the orderly administration of justice, and to grant the motion to withdraw the answer.
The Court will hear from the parties at the hearing. Ms. Miramontes from Donna, Texas is ordered to be present via Zoom and will likely be sworn as a witness and subject to cross-examination by Plaintiff’s counsel.
Should the parties submit on the tentative or otherwise fail to appear at the hearing, the Court will GRANT the motion.
Plaintiff to give notice.