Opinion
G062864
06-18-2024
DAVID ELIAS, Plaintiff and Appellant, v. ELIZABETH ANN ELIAS et al., Defendants and Respondents.
David Elias, in pro. per., for Plaintiff and Appellant. No appearance for Defendants and Respondents.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 30-2022-01276770 Linda S. Marks, Judge. Affirmed.
David Elias, in pro. per., for Plaintiff and Appellant.
No appearance for Defendants and Respondents.
OPINION
DELANEY, J.
Plaintiff David Elias appeals from the trial court's dismissal of his complaint after he failed to appear at a hearing on an order to show cause (OSC) regarding dismissal. He contends the court abused its discretion in dismissing the matter because he made a virtual appearance at the hearing, and further abused its discretion by failing to correct its minute order to so reflect and failing to act on various requests he made after the dismissal. We find no error and affirm the judgment.
The appellate record designated by plaintiff is sparse. On our own motion, to provide a better understanding of events leading to the challenged trial court action, we take judicial notice of all documents filed in the case during the six months between the filing of the complaint and the court's dismissal of the action, including court minute orders. (Evid. Code, §§ 452, subd. (d)(1), 459.)
In August 2022, plaintiff filed a complaint against defendants. After two of the three defendants filed an answer to the complaint, the trial court held a case management conference in March 2023. The court clerk notified plaintiff and the answering defendants of the case management conference, but plaintiff failed to appear. As a result, the court set a hearing on an "Order to Show Cause re Dismissal" for the beginning of May 2023. The minute order sent to plaintiff indicated his failure to appear at the hearing "may result in the dismissal of this case." A few weeks later, plaintiff filed a case management statement.
The trial court's minute order issued after the OSC hearing, dated May 1, 2023, indicates there was no appearance by any party. It further states: "This case having been timely called and there being no appearance by Plaintiff, the Court now orders the entire action dismissed without prejudice." The court clerk mailed a copy of the minute order to all parties.
Eight days later, plaintiff filed two documents. The first, titled "PLAINTIFFS [(sic)] REQUEST FOR FINDINGS," requested findings as to why the court dismissed the action and why the court did not have a court reporter present when the case was dismissed. He claimed "he was on time" for the OSC hearing, he "waited for several minutes to be let [into] the meeting[] after reading[] 'The host will let you in soon,'" and once "he was connected, the clerk told him, his matter was called promptly[] and the judge dismissed the case." The second, titled "REQUEST FOR RECONSIDERATION," asked the court to reconsider its dismissal of the action. Plaintiff provided a similar explanation about what occurred. He stated he attempted to log in to the remote system, which at first did not respond, and he was notified the "'host would let him in soon.'" After waiting several minutes, the connection was established and the court clerk told him the case had been called promptly at 1:30 p.m. Plaintiff said his conversation with the clerk took place at 1:39 p.m.
A few weeks later, the court clerk notified plaintiff it could not process his papers because of the dismissal.
Thereafter, plaintiff filed a request that the trial court (1) correct its May 1, 2023 minute order nunc pro tunc to reflect he did appear, and (2) "reinstate the case." That same day, he filed another "REQUEST FOR FINDINGS," asking the court to provide findings regarding "why the minute order stated plaintiff did not appear when he spoke to the clerk and he did appear," and "why the court took such a drastic move as to dismiss the case."
Plaintiff's notice of appeal indicates he is appealing from the unsigned minute order dismissing his complaint without prejudice. Without the benefit of any briefing from respondents, or briefing from plaintiff on the issue of appealability, we assume the appeal from the order is proper as the order disposed of the entire action.
DISCUSSION
Plaintiff claims the trial court abused its discretion in three ways: (1) dismissing the case due to plaintiff's nonappearance even though he was present; (2) failing to correct the May 1, 2023 minute order to reflect his presence; and (3) failing to act on the various requests he filed after the dismissal. We find no error.
"As with any civil appeal, we must presume the judgment is correct, indulge every intendment and presumption in favor of its correctness, and start with the presumption that the record contains evidence sufficient to support the judgment." (Steele v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1251.) Plaintiff, as the appellant, bears the burden of overcoming that presumption of correctness by demonstrating prejudicial error. (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609; Parker v. Harbert (2012) 212 Cal.App.4th 1172, 1178.) That plaintiff is self-represented has no impact on these fundamental appellate principles. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984; Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.)
There is no evidence in the record that the court's minute order indicating plaintiff's nonappearance is inaccurate. Plaintiff's statements in pleadings filed after the court ordered dismissal of the action and in his appellate brief are not evidence. (See Gilman v. Dalby (2021) 61 Cal.App.5th 923, 940 (Gilman) [statements in motions are not evidence]; Alki Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 590 ["Citing points and authorities filed in the trial court is not appropriate support for factual assertions in a brief" because they "are not presented under penalty of perjury"]; In re Marriage of Duris &Urbany (2011) 193 Cal.App.4th 510, 515 [allegations in brief are not evidence].)
The lack of record evidence highlights another problematic aspect of this case. With a few limited exceptions, dismissal of a complaint terminates a trial court's subject matter jurisdiction and jurisdiction over the parties. (Estate of Garrett (2008) 159 Cal.App.4th 831, 838.) One such exception concerns the setting aside of a dismissal after its entry. (See Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 254255.) Pursuant to Code of Civil Procedure section 473 , "[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." (§ 473, subd. (b).) A party ordinarily seeks such relief by filing a motion no later than six months after the judgment, dismissal, order, or proceeding was taken. (Ibid.; Arega v. Bay Area Rapid Transit Dist. (2022) 83 Cal.App.5th 308, 315.)
All further statutory references are to the Code of Civil Procedure.
Here, instead of filing a motion for relief pursuant to section 473, plaintiff filed a motion for reconsideration. A motion for reconsideration is fundamentally different (see § 1008; Even Zohar Construction &Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 838-840; O'Brien v. Cseh (1983) 148 Cal.App.3d 957, 960-961), and the trial court is without jurisdiction to evaluate or act on it after dismissal is entered. (See APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 181-182 [trial court lacks jurisdiction to reconsider ruling after dismissal entered]; San Francisco Lathing, Inc. v. Superior Court (1969) 271 Cal.App.2d 78, 82 (San Francisco Lathing) [section 473 motion or direct appeal, not motion for reconsideration, are generally proper means for seeking relief from dismissal].)
Even if the trial court had disregarded the title and wording of plaintiff's pleading and treated it as a section 473 motion to set aside the dismissal, denial of the motion would have been proper. "An order dismissing an action for lack of prosecution may be set aside pursuant to a motion under section 473 . . . if the motion is timely made and has the necessary factual support." (Bergloff v. Reynolds (1960) 181 Cal.App.2d 349, 355; accord San Francisco Lathing, supra, 271 Cal.App.2d at p. 82.) There was no factual support for the same reason there is no evidence in the appellate record supporting plaintiff's position. Factual recitations in a motion or points and authorities are not evidence; a declaration signed under penalty of perjury, or a sworn statement, is required. (See § 2015.5; Gilman, supra, 61 Cal.App.5th at p. 940; In re Marriage of Duris & Urbany, supra, 193 Cal.App.4th at p. 515; In re Marriage of Reese &Guy (1999) 73 Cal.App.4th 1214, 1222-1223.) The lack of any evidence means plaintiff's request, however labeled, was entirely unsupported, and the court would have been justified denying it on the merits. (Kendall v. Barker (1988) 197 Cal.App.3d 619, 624.)
DISPOSITION
The judgment is affirmed. Respondent did not appear and thus incurred no costs, costs are not awarded.
WE CONCUR: BEDSWORTH, ACTING P. J., MOORE, J.