Judge Ronald F. Frank, Case Number: 21STCV03643, Date: 2025-02-24 Tentative Ruling

Judge: Ronald F. Frank, Case: 21STCV03643, Date: 2025-02-24 Tentative Ruling

Case Number: 21STCV03643 Hearing Date: February 24, 2025 Dept: 8

Tentative Ruling

HEARING DATE: February 24, 2025

CASE NUMBER: 21STCV03643

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CASE NAME: Jehan Zeb Mir, MD v. Matthias McCoy-Thompson, et al.

MOVING PARTY: Plaintiff, Jehan Zeb Mir, MD

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RESPONDING PARTY: Defendant, Matthias McCoy-Thompson

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TRIAL DATE: Not Set.

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MOTION:¿ (1) Motion to Set Aside and Vacate 1/18/23 “Void” Order of Judge Lu Denying Motion for Reconsideration of Order Dismissing Complaint without Prejudice on 9/13/2022

(2) Motion to Set Case for Trial

Tentative Rulings: (1) DENIED

(2) DENIED

I. BACKGROUND¿

A. Factual¿

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These motions present a procedural quagmire relating to rulings by several different judges several years before this civil action, filed on January 19, 2021, was reassigned in January of 2025 to Inglewood. Plaintiff’s Judicial Council form complaint was filed by attorney Jerry Udochu but Plaintiff is now a self-represented litigant per a Substitution of Attorney filed on March 1, 2021, i.e., six weeks after the suit was filed. A year later, on March 2, 2022, Plaintiff filed a proof of service of the Summons and Complaint, and Defendant McCoy-Thompson filed his Answer to the Complaint. On July 13, 2022, Plaintiff filed an application to vacate two pre-filing orders, one of which that had been entered against him in 2002 by Judge Josh Fredricks, and one entered in 2003 by appellate court Justice Roger Boren. While pre-filing orders typically apply only to litigation initiated by the vexatious litigant himself or herself, Justice Boren’s order also prohibited Dr. Mir from filing either “in propria personal or through an attorney without first obtaining leave” by a pre-filing order. (Mir v. Pomona Valley Hosp. Medical Ctr. (2/24/02) 2002 WL 403301 at *22-23, quoted in footnote 1 of Judge Cowan’s August 22, 2022 Minute Order.) Judge David Cowan was the Supervising Judge of Civil at the time.

In an August 22, 2022, Minute Order served on Dr. Mir, Judge Cowan denied Plaintiff’s Application to Vacate Pre-Filing Order and Issued an OSC regarding the dismissal of this case and 3 other cases he then had pending. Judge Cowan’s ruling stated that the Court would consider a written response to be filed by Dr. Mir, but cautioned that if he failed to establish that his litigation had merit and was not intended to harass or delay, then his cases including this one would be dismissed. Before the hearing on the OSC could be held, Dr. Mir filed a 170.6 challenge against Judge Cowan, which Judge Cowan found to be timely and accepted it, reassigning the hearing of the OSC to the Assistant Supervising Judge of Civil, Judge Elaine Lu. The reassigned hearing was set for September 13, 2022.

On September 13, 2022, Judge Lu discharged the OSC and dismissed Plaintiff’s complaint without prejudice. Judge Lu’s order on that OSC notes that Dr. Mir did not offer any evidence or argument that any of the four referenced cases (including this one) had merit and were not filed for purposes of harassment or delay within the meaning of Code of Civil Procedure section 391.7. Plaintiff then filed a motion for reconsideration of Judge Lu’s September 13, 2022 order. Judge Lu heard the motion for reconsideration on December 8, 2022, took the matter under submission, issuing her ruling on January 18, 2023. In that ruling, Judge Lu denied the motion for reconsideration of her September 13, 2022 order dismissing each of the four referenced civil actions Dr. Mir had filed, including this one. Judge Lu’s January 18, 2023 ruling also expressly denied as untimely Dr. Mir’s peremptory challenge of Judge Lu regarding her hearing the motion for reconsideration of her earlier September 13, 2022 orders.

Plaintiff contends that in her January 18, 2023 order, Judge Lu accepted a different peremptory challenge, insofar as Dr. Mir sought to disqualify Judge Lu from hearing Plaintiff’s motion to reconsider Judge Cowan’s August 22, 2022 order. Plaintiff further asserts that once Judge Lu accepted the 170.6 challenge that Plaintiff lodged against him, Judge Lu lost jurisdiction to decide the reconsideration motion regarding Judge Lu’s September 13, 2022 Order dismissing the Complaint without Prejudice. Plaintiff thus argues Judge Lu’s denial of the motion for reconsideration was void because she had accepted the second 170.6 challenge to her hearing a different motion that is not the subject of the instant motion to vacate “void” order.

As such, Plaintiff now moves to set aside and vacate Judge Lu’s January 18, 2023 Order denying his motion to reconsider her September 13, 2022 ruling dismissing his case, as void for lack of jurisdiction. He predicates the instant motion on Code of Civil Procedure section 473, subdivision (d). Plaintiff also seeks to set the case for trial, even though his case has been dismissed dating back to September of 2022.

B. Procedural

On October 31, 2024, Plaintiff filed this Motion to Set Aside and Vacate Judge Lu’s January 18, 2023 Order. On February 11, 2025, Defendant filed an opposition brief. On February 18, 2025, Plaintiff filed a reply brief. On October 2, 2024, Dr. Mir also filed a motion to set trial date. Defendant filed opposition to that motion on October 14, 2024. Dr. Mir’s reply on the trial-setting motion was combined with his February 18, 2025 reply to the motion to vacate the “void” order.

II. ANALYSIS ¿

A. Legal Standard

Pursuant to Code of Civil Procedure section 473, subdivision (d), “[t]he court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment o order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., § 437, subd. (d).)

B. Discussion

Plaintiff moves under Code of Civil Procedure section 473, subdivision (d) on the grounds that he argues Judge Lu had no jurisdiction to rule on the Motion for Reconsideration on September 13, 2022 order to Dismiss Complaint without Prejudice because of Plaintiff’s two peremptory challenges to Judge Lu. Specifically, Plaintiff asserts that on January 18, 2023, Judge Lu accepted one of the two peremptory challenges. A review of Judge Lu’s January 18, 2023 minute order informs this Court that Judge Lu wrote:

“However, insofar as Plaintiff seeks to disqualify this Court from hearing his motion for reconsideration of Judge Cowan’ August 22, 2022 order, the Court finds that Plaintiff’s peremptory challenge is timely. Plaintiff’s motion for reconsideration of Judge Cowan’s August 22, 2022 order will be referred to Department 1 (the Honorable Michelle Wiliams Court, Supervising Judge of Civil) for reassignment.”

Judge Court determined in her January 25, 2023 ruling on the matter referred to her by Jude Lu that Plaintiff had not actually filed a motion for reconsideration of Judge Cowan’s August 22, 2022 order, so there was no such motion for her to grant or deny.

Because Plaintiff asserts that Judge Lu lacked jurisdiction after accepting the peremptory challenge, her ruling on the Motion for Reconsideration of the September 13, 2022 order dismissing the Complaint should be voided and this Court should set this case for trial. However, Plaintiff ignores the second paragraph of Judge Lu’s January 18, 2023 ruling in which she specifically DENIED AS UNTIMELY the 170.6 challenge to her hearing the motion to reconsider the September 13, 2022 order dismissing this action. She thus properly denied the motion for reconsideration of her order dismissing Dr. Mir’s complaint.

A party only has the right to make a CCP section 170.6 challenge a single time in a case. Here, Dr. Mir filed, and Judge Cowan accepted, the 170.6 challenge to him, which was the reason he reassigned the then-pending motion for reconsideration to Judge Lu. Judge Lu’s dismissal of this case on January 18, 2023 was thus not void, it was not without jurisdiction, and was not timely appealed. The Motion to seat aside or vacate is accordingly DENIED.

III. CONCLUSION¿

Based on the foregoing, Plaintiff’s Motion to Set Aside and Vacate Judge Lu’s January 18, 2023 order dismissing his Complaint without prejudice is DENIED. The motion to set this dismissed case for trial is also DENIED.

Defendant is ordered to give notice.