Judge: Stephen I. Goorvitch, Case: BC703537, Date: 2022-08-10 Tentative Ruling

Case Number: BC703537    Hearing Date: August 10, 2022    Dept: 39

Felix Lopez, et al. v. Kathleen Williams McBride

Case No. BC703537

Motion to Set Aside Dismissal of Cross-Complaint

            Plaintiffs Felix Lopez and Luis Rodriguez (collectively, “Plaintiffs”) filed this action against Kathleen Williams McBride (“McBride”).  On June 30, 2021, McBride filed a cross-complaint against Katherine Bergh.  The cross-complaint was signed “Kathleen Williams McBride by Hector Canino Jr. Attorney in Fact per U/A/D dated April 18, 2020.”  The cross-complaint asserts the following causes of action: (1) Equitable indemnity re: contract damages; (2) Equitable indemnity re: tort damages; (3) Fraud; (4)  Breach of fiduciary duty; (5) Elder abuse; and (6) Preliminary and permanent injunctive relief.

            On June 22, 2021, the Court relieved McBride’s former counsel, Mr. Richard A. Kolber, Esq.  On July 8, 2021, McBride’s current counsel, Mr. Armen G. Militian, Esq., filed a notice of appearance.  Mr. Mitilian filed a request for dismissal of the cross-complaint on July 14, 2021, and it was entered that same date. 

            Over one year later, on July 22, 2022, an attorney representing Hector Canino Jr. (“Canino”) has filed a motion to set aside that dismissal under Code of Civil Procedure section 473.  The motion is denied for several reasons. 

First, a cause of action for injuries to personal or real property is assignable, but causes of action “founded upon wrongs for a purely personal nature” cannot be assigned.  (See Wikstrom v. Yolo Fliers Club (1929) 206 Cal. 461, 463.)  Under California law, the exceptions to the general rule favoring assignability of causes of action include tort causes of action for wrongs done to the person.  (AMCO Ins. Co. v. All Solutions Ins. Agency, LLC (2016) 244 Cal.App.4th 883, 892.)  Therefore, most of the assignment is invalid.

            Second, Canino never filed a notice of appearance or appeared in this case.  Accordingly, the Court had no reason to know that Mr. Mitilian lacked authority to file a request for dismissal.  (See Casey v. Overhead Door Corp. (1999) 74 Cal.App.4th 112, 121, overruled on other grounds as set forth in Jimenez v. Superior Court (2002) 29 Cal.4th 473.)  For this reason, the Court’s order dismissing the cross-complaint was not void.

            Third, Canino’s cross-complaint was filed without authorization of the Court.  The complaint was filed on April 25, 2018, and the cross-complaint was filed over three years later, on June 30, 2021.  At the time, McBride’s answer had been filed, and an initial trial date had been set—November 4, 2019—per the Court’s case management order, dated October 25, 2018.  Therefore, Canino required leave of the Court, per Code of Civil Procedure section 428.50(c).  He failed to obtain leave, so the cross-complaint was invalid. 

            Fourth, the Court has serious concerns whether Canino had authorization to act on behalf of McBride.  It is undisputed that McBride is an elderly woman who had mental health issues, and there is serious question whether Canino acted in good faith.  (See Declaration of Kathleen McBride, ¶ 4.)  Specifically, McBride that while she was hospitalized on a 5150-hold and under mental health medication, Canino had her sign the relevant documents.  (Ibid.)  McBride states that she revoked Canino’s authority to act on her behalf on July 20, 2021, and August 4, 2021.  (Id., ¶ 10.) 

            Finally, the Court denies the motion because Canino has not satisfied the requirements.  First, Canino was required to seek 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).)  Canino waited 373 days to file this motion, making the motion untimely.  In the alternative, Canino cannot demonstrate good cause, as he was negligent.  Canino filed the cross-complaint on June 30, 2021, and received the summons for Katherine Bergh on July 1, 2021.  Canino never served the summons and cross-complaint.  Nor did Canino ever appear file a notice of appearance.  Canino did not appear at numerous hearings at which his presence as a cross-complainant would have been required between June 30, 2021, and June 29, 2022, when he finally surfaced.  This record does not evidence a serious intention to pursue the cross-complaint and does not constitute “excusable” neglect. 

            Based upon the foregoing, the motion to set aside dismissal of the cross-complaint, by and through Canino and his counsel, is denied.  The Court’s clerk shall provide notice to all parties, including Canino’s counsel.