Judge: Thomas Falls, Case: 20PSCV00030, Date: 2023-02-27 Tentative Ruling

Case Number: 20PSCV00030    Hearing Date: February 27, 2023    Dept: O

Hearing DATE:                      Monday, February 7, 2023

MOTION TO ALTER OR AMEND THE COURTS MARCH 1, 2022 “FINAL RULING”; IT’S MARCH 1, 2022 MINUTE ORDER AND/OR TO ENTER AN ORDER OF DISMISSAL

Tentative Ruling

MOTION TO ALTER OR AMEND THE COURTS MARCH 1, 2022 “FINAL RULING”; IT’S MARCH 1, 2022 MINUTE ORDER AND/OR TO ENTER AN ORDER OF DISMISSAL is MOOT because the action has already been dismissed.

Background

This case arises from attorney fees and costs brought forth by Plaintiff Ernest L. Jarrett (“Plaintiff” or “Jarrett”) against Defendant Dale K. Galipo (who was the lead attorney on a wrongful death case).

On June 16, 2021, Defendant Dale K. Galipo filed a Demurrer to Plaintiff’s Third Amended Complaint (“TAC”) and related Motion to Strike parts of the complaint.

On June 18, 2021, Plaintiff filed an Ex Parte Application to stay this action for 90 days to accommodate Plaintiff’s anticipated back surgery and recovery.

On June 21, 2021, the court issued an Order staying this action until September 1, 2021. The Court also ordered Plaintiff to respond to Defendant’s Demurrer by September 1, 2021. Plaintiff filed his Response in Opposition to Defendant’s Demurrer on October 4, 2021.

On October 25, 2021, the court sustained Defendant’s Demurrer to the Third Amended Complaint without leave to amend and denied Defendant’s Motion to Strike Portions of the Third Amended Complaint as Moot.

On November 16, 2021, Plaintiff filed a Motion for Relief from Order and/or to Vacate the Order.

On November 19, 2021, Plaintiff filed a Motion for Reconsideration.

On March 1, 2022, the court entered its final ruling, DENYING both motions.

On March 16, 2022, the court issued the following Minute Order: “In reviewing the case file and the minute order dated 10/25/2021 Sustaining the Demurrer without leave to amend, the court makes the following order: The Court orders the Amended Complaint (3rd) filed by Ernest L Jarrett on 05/18/2021 dismissed with prejudice.” (emphasis and underline added).

On November 30, 2022, the appellate court issued its opinion.

On January 19, 2023, Jarrett filed the instant Motion to Amend Judgment.

On January 31, 2023, the appellate court issued its Remittitur, stating that the November 30, 2022 is final.

Discussion

Jarrett files the instant motion on the ground that the appellate court denied his appeal because the court did not issue a formal dismissal of the case, rendering the court’s March 1, 2022 ruling not appealable. But that is the problem: Jarrett sought an appeal of the wrong order. As noted by the appellate court, “the March 1, 2022 order is not, however, a dismissal order, which would be the final, appealable order.” Rather, what Jarrett should have appealed is the March 16, 2022 order which formally dismissed the case. Therefore, as the case has already been dismissed such that the March 1, 2022 order need not be amended, no controversy exists.

Conclusion

Based on the foregoing, the motion is MOOT because what Jarrett ultimately seeks—an appealable order—has been available since March 16, 2022.