Opinion
A120828
2-20-2009
DOMINIQUE S. BLACK, Plaintiff and Appellant, v. WILLIAM M. LUKENS et al., Defendants and Respondents.
Not to be Published in Official Reports
I. INTRODUCTION
Appellant appeals from a judgment of the San Francisco Superior Court entered after it granted respondents motion to dismiss his complaint against them, a complaint which had alleged breach of contract, fraud, legal malpractice, and other improper conduct. That complaint, which was filed by appellant in pro per in March 2005, was not served on respondents until September 2007, and only then after appellant had been served with an order to show cause as to why the complaint should not be dismissed. The superior court dismissed the complaint with prejudice, principally on the basis of the unreasonable delay of appellant in serving it on any of the respondents. In his appeal, also brought in pro per, appellant claims that: (1) the trial court erred in granting the motion to dismiss with prejudice; (2) there was an inadequate legal basis for the dismissal; and (3) the motion to dismiss should have been heard by the court that, earlier, had granted appellant numerous extensions of time to serve his complaint and had issued the order to show cause. We reject these arguments and hence affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
Appellant is a businessman, and not a lawyer, who apparently resides in San Mateo County. In, apparently, the latter part of 2001, a trust controlled by appellant and his wife and a corporate entity apparently controlled by that trust, AdvancedSkills, Inc. (ASI), became involved in a dispute with other guarantors of a substantial line of credit. According to appellant, officers of one of the co-guarantors, a California corporation known as Automation and Migration Services, Inc. (AMS) "converted ASI assets and created a new business venture through which to offer the fraudulently converted ASI assets for sale." This, per appellants brief to us, violated "both a lending agreement with a bank and a partnership agreement among the co-guarantors"—again, the latter apparently including appellants trust and corporate interests.
We will say "apparently" several times in this section of our opinion, because none of the three opening briefs filed in this case provide much information regarding the underlying investment disputes which resulted in the Contra Costa and San Mateo litigation discussed hereafter. In particular, appellants brief cites to almost nothing in the record on this subject.
Appellant alleges that, in December 2001, he personally retained respondent attorneys via written contract. Appellant generally alleges that, by it, respondents "promised to provide Plaintiffs trust with legal services" relating to appellants and his trusts dispute with the co-guarantors but "failed to perform many of the contracts express and implied covenants." Nowhere in his one-volume appendix is a contract with any of the respondents provided. (It is provided, however, in respondents appendix.)
This is, regrettably, just one of the many deficiencies in Appellants Appendix. There are others which we will note hereafter, the main one being that documents failure to include many, including some very important, pleadings filed in the court below, e.g., respondents memorandum of points and authorities in support of their motion to dismiss, and appellants opposition to that motion.
On March 1, 2005, appellant, acting in pro per, filed his initial complaint in San Francisco Superior Court. In it, he alleged causes of action against respondents for breach of contract and for "Fraud, Intentional Tort, Legal Malpractice-Professional Negligence," and asked for both damages in the amount of $93,855, plus interest and injunctive relief.
Appellants initial complaint is confusing as to the amount of damages he sought. On the second page of the form complaint, $93,855 is the amount of damages claimed (plus interest at the rate of 10 percent), but on a subsequent page of the attachments to the complaint (found in the respondents appendix but not in appellants) appellant alleges that he and his wifes trust "suffered the loss of $800,000 to the lending bank as a result of a settlement of the banks lawsuit."
The copy of the March 2005 form complaint provided us by appellant in his appendix consists of just the two-page standard form. Respondents, however, provide us with 19 pages of attachments to that complaint. These include, among many other things (1) a detailed specification of how respondents allegedly breached their contracts with appellant, (2) the original "Retention Agreement" between appellant and his wife, qua trustees of their "Revocable Trust" and the first of respondents with whom, apparently, appellant met, San Francisco attorney William Lukens, (3) additional amplifications by appellant regarding the other causes of action brought against respondents, including a common count for monies paid, and the counts alleging fraud and legal malpractice, and (4) another retention letter from 2002.
As noted earlier, none of these attachments to appellants original complaint are included in his appendix.
The parties all agree—and this is probably the most significant underlying fact—that the original March 2005 complaint was never served on any of the respondents. (As will be noted further later, an amended complaint filed in September 2007, was served that month.) The reason for the non-service was that, on nine successive occasions, appellant requested the original trial court (Commissioner Arlene Borick) to grant him extensions of time to serve the complaint; the first eight times, Commissioner Borick granted those requests. The ninth time, in March 2007, she denied the request and issued an order to show cause as to why appellants action should not be dismissed and/or sanctions imposed.
The basis for appellants nine requests for extensions of time was, per appellant at that time and in his briefs to us, the pendency of two related actions in the San Mateo and Contra Costa Superior Courts. Because the alleged pendency of these two actions was the basis for the extension requests, we will briefly describe them—at least as best as we can from the record provided us. The first, chronologically, was filed initially in San Mateo County in November 2002, but subsequently moved to Contra Costa County. In that action, several of the respondent attorneys represented two corporate plaintiffs which were "purportedly owned directly or indirectly by" appellant, and was filed against several alleged "former business partners" of the plaintiffs and sought "contribution to satisfy partnership debts" and other alleged damages from those defendants.
On January 28, 2004, three of the attorney-respondents, Lukens, Glickman and Jonak, filed a motion in that action to be relieved as counsel. That motion was granted on March 8, 2004. Per respondents briefs, this withdrawal was based on appellants alleged failure to pay those respondents their-agreed upon fees. Subsequently, in June 2005, ASIs complaint was dismissed for failure to retain counsel and, a few months later, the defendants in that action dismissed their cross-complaint against ASI. (As will be noted further below, a co-plaintiff not mentioned in appellants brief did recover a default judgment against the named defendants.)
The counsel subsequently retained by ASI to represent its interests in the Contra Costa County action (Methven & Associates) subsequently moved, successfully, to be relieved as counsel because of the non-payment of their fees and "irreconcilable differences regarding management of the case." But this was, apparently, not the only altercation between appellants business interests and counsel. Respondents apparent predecessor counsel in apparently-related San Mateo County actions from 1995 through April 2002 sued ASI for unpaid fees in June 2003. In return, that firm (Wendel, Rosen, Black & Dean) was sued for legal malpractice by appellants ASI via an unverified cross-complaint.
The other allegedly-related action was a second action filed in San Mateo County. But (1) that action was not filed until November 2005, eight months after appellant initiated the instant action against respondents and (2) none of the respondents were counsel for ASI (or anyone else) in it, as they had apparently all severed their relationships with appellant and his trust interests via their 2004 withdrawal from the Contra Costa County action.
In his opening brief to us, appellant is ambivalent as to the "nexus" between these two underlying cases, conceding that, if there was, it may not have been "stated clearly and unequivocally to the [trial] court."
A San Jose law firm, Hopkins & Carley, represented plaintiff ASI in the 2005 San Mateo County action. ASI was apparently a corporation owned or controlled by appellant and his wifes trust. ASI, a `business entity of Plaintiff, recovered a default judgment for over $12 million against defendant AMS in July 2006."
On April 25, 2005, appellant filed the first of his nine successive requests for an extension of time to serve the in pro per complaint he had filed on March 1, 2005. His principal stated reason for so doing was that "[t]he underlying case [the Contra Costa County action] is still ongoing and has not been determined yet." As noted, this and seven subsequent similar applications were granted by Commissioner Borick.
As noted above, the ninth time appellant made such a request, on February 28, 2007, Commissioner Borick denied it and, a few days later, issued an order to show cause setting a hearing for May 7, 2007, as to "why this action should not be dismissed or why sanctions should not be imposed for failure to: [¶] file proof of service on defendant(s), or enter default(s)."
On April 16, 2007, appellant filed a declaration in response to the order to show cause. On April 30, 2007, Commissioner Borick continued the hearing on it to September 24, 2007. On September 13, 2007, appellant filed an amended complaint against respondents, and this time served them. Commissioner Borick then cancelled the September 24, 2007, hearing, and set a case management conference.
On October 29, 2007, respondents filed a motion to dismiss appellants action against them for failure to serve his complaint on them or otherwise promptly prosecute his action, and for seeking—and getting—several of his extensions of time to serve based on false representations. The motion was heard by the trial court (the Honorable Paul Alvarado) on December 14, 2007. It granted the motion at the conclusion of the hearing and signed a formal order to that effect on December 26, 2007. The critical paragraph of that order read: "Defendants Motion to Dismiss for Failure to Prosecute, joined in by Defendant Richard Glickman, is granted as to all Defendants. Plaintiffs action is hereby dismissed, with prejudice, pursuant to California Code of Civil Procedure sections 583.410 and 583.420 and California Rules of Court 3.1340 and 3.1342 for failure to serve Defendants or otherwise prosecute his claims for more than two and a half years without justification. Plaintiffs action is further hereby dismissed, with prejudice, because Plaintiff, under false pretenses, sought and obtained extensions pursuant to California Rule of Court 3.110, which requires service to be effected on Defendants within 60 days of filing the complaint. Cal. Gov. Code § 68608."
Although this motion was filed in the Law and Motion Department of the superior court, that department apparently assigned the matter to Judge Alvarado.
Appellant filed a timely notice of appeal.
III. DISCUSSION
A. Our Standard of Review.
Appellant contends that his appeal is subject to a de novo standard of review. In both his briefs to us, appellant states: "The interpretation of the law and rules of the court present questions of law subject to de novo appellate review." No authority is ever proffered that this general and conclusory statement applies to the specific issues before us here.
Respondents, in their separate briefs, argue that the correct standard is abuse of discretion. They are correct.
Respondent Glickman, who contends he "never entered into an attorney-client relationship with Appellant," filed a separate brief from the other respondents.
As will be noted, the trial courts order granting the motion to dismiss specifically cited Code of Civil Procedure sections 583.410 and 583.420 as the statutory bases supporting its actions. Those sections read in pertinent part: "(a) The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case. [¶] (b) Dismissal shall be pursuant to the procedure and in accordance with the criteria prescribed by rules adopted by the Judicial Council." (§ 583.410.)
All further unspecified statutory references are to the Code of Civil Procedure unless otherwise noted.
And: "(a) The court may not dismiss an action pursuant to this article for delay in prosecution except after one of the following conditions has occurred: [¶] (1) Service is not made within two years after the action is commenced against the defendant." (§ 583.420, subd. (a)(1) (hereafter § 583.420(a)(1)).)
Even before these sections were enacted in 1984, our Supreme Court had, indeed several times, made clear that a trial courts dismissal of an action for inappropriate delays in prosecution was reviewable only under an abuse of discretion standard. The leading case to this effect is Blank v. Kirwan (1985) 39 Cal.3d 311, 331 (Blank). There, construing a former statute the "substance [of which] is continued in Code of Civil Procedure section 583.420, subdivision (a)" (Blank, supra, 39 Cal.3d at p. 331, fn. 7), the court held: "When the trial court has ruled on such a motion, `"unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power." [Citations.] ` "The burden is on the party complaining to establish an abuse of discretion . . . ." [Citation.]" (Blank, supra, 39 Cal.3d at p. 331; see also, to the same effect and preceding Blank: Denham v. Superior Court (1970) 2 Cal.3d 557, 566 (Denham); Martindale v. Superior Court (1970) 2 Cal.3d 568, 574; and Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 562-563.)
A decade after the adoption of now-sections 583.410 and 583.420, our Supreme Court made clear that the abuse of discretion standard is very much still applicable in situations of the sort before us in the case. In Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424 (Howard), the court stated: "When reviewing a discretionary dismissal or a denial of a motion to specially set on discretionary grounds, an appellate court must presume that the decision of the trial court is correct. `"All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown." [Citing Denham.] Although a lower court is obliged to consider the relevant factors when ruling on a discretionary motion to dismiss, it is not compelled to state in written or oral form its reasons for granting a discretionary dismissal. [Citation.] The burden is on the party challenging the trial courts decision to show that the court abused its discretion. [Again citing Denham.] Thus, even if there is no indication of the trial courts rationale for dismissing an action, the courts decision will be upheld on appeal if reasonable justification for it can be found." (Howard, supra, 10 Cal.4th at p. 443; see also Williams v. Los Angeles Unified School Dist. (1994) 23 Cal.App.4th 84, 91; Lopez v. State of California (1996) 49 Cal.App.4th 1292, 1294-1295 (Lopez ).)
B. On the Record Before us, the Trial Court did not Abuse its Discretion.
We will deal, together, with the first two arguments in appellants briefs to this court, namely, that the trial court erred in (1) granting respondents motion for dismissal with prejudice, and (2) in granting the motion at all, misapplied the statutes and rules it cited in its order. However, we will deal with them in reverse order.
First of all, we do not think the trial court misapplied the applicable law. California Rules of Court rule 3.110(b), cited by the court in its order, provides that a "complaint must be served on all named defendants and proofs of service on those defendants must be filed with the court within 60 days after the filing of the complaint." (Cal. Rules of Court, rule 3.110 (b).) Following on from that are the provisions of sections 583.410 and 583.420(a)(1), both quoted above. Based on these and other provisions, we agree with several other appellate courts that a dismissal with prejudice was not an abuse of discretion in this case.
Cal. Rules of Court, rule 3.1340(a), also cited by the trial court in its order, reiterates the substance of these statutes. And section 583.150 makes clear that a court may "dismiss an action . . . under a rule adopted by . . . the Judicial Council pursuant to statute, or otherwise under inherent authority of the court. (§ 583.150.)
However, unlike the trial court and respondents, we do not rely on Government Code section 68608 as particularly supportive of the result reached here. That provision seems to us to relate more to the broad powers of trial courts to impose sanctions—and ever-increasing sanctions—than it does the power to dismiss an action.
Clearly the most similar case to the present one is Scarzella v. DeMers (1993) 17 Cal.App.4th 1762 (Scarzella). There, a unanimous panel of the Third District, in an opinion authored by Justice Blease, affirmed a judgment of the Sacramento Superior Court entered after that court had granted a motion to dismiss under sections 583.410 and 583.420(a)(1) where the plaintiff, as here a former client and initially in pro per, was suing his former attorneys for legal malpractice, but did not serve them with the summons and complaint until 28 months after the complaint was filed. Our colleagues in the Third District found no abuse of discretion.
In so holding, and after quoting those two key statutes, they wrote: "The statutory scheme is derived from the preexisting law. The California Law Revision Commission comment to section 583.420 provides in pertinent part: `Subdivision (a)(1) of Section 583.420 continues the substance of former Section 583(a) as it related to the authority of the court to dismiss for delay in making service. . . . [Citations.] We deem the comment entitled to substantial weight. [Citations.] . . . [¶] The question is one of trial court discretion. [Citation.] The unexcused failure to serve a summons within the two-year period prima facie constitutes a sufficient ground for dismissal. [Citation.] In such a case there is no requirement for an affirmative showing of prejudice. [Citation.] Notice of the plaintiffs potential claim was unavailing; the defendant has no duty to act affirmatively but need only respond, beginning with the service of summons. [Citation.] The pendency of the related workers compensation proceedings was no excuse; `The proper procedure is to serve the summons within a reasonable time after the complaint is filed, and, if necessary, apply for a continuance in bringing the case to trial. [Citation.] An unsupported claim that time was needed to develop the facts and law to permit service on the defendant was `meretricious. [Citation.] . . . [¶] Dismissal for failure to serve summons within two years under section 583.420, subdivision (a)(1), and dismissal for failure to bring the action to trial within the prescribed time under section 583.420, subdivision (a)(2), after the action is commenced, are both matters within the discretion of the trial court. Although both are addressed in the same statute, the scope of discretion is not the same. `The scope of discretion always resides in the particular law being applied, i.e., in the "legal principles governing the subject of [the] action . . . ." [Citation.] . . . [T]he legal principles governing the failure to timely bring a matter to trial do not control the failure to timely serve summons. [¶] The standard of excuse for delay in service of summons is more stringent than that applicable to a delay in bringing a matter to trial. This is shown, albeit somewhat obscurely, in the text of section 583.420, subdivision (b). It provides that the times prescribed in subdivision (a), after which dismissal may be granted, are to be computed in the manner provided under the statutes governing the time for mandatory dismissal. The contrast between the statutes to which section 583.420, subdivision (b) refers indicates that delay in service and delay in bringing the matter to trial after service are measured by different standards for excuse." (Scarzella, supra, 17 Cal.App.4th at pp. 1768-1770, fn. omitted.)
Interestingly, appellants two briefs to this court nowhere cite, much less discuss, the very similar facts and the holding of Scarzella. And, similarly, almost no attention is paid to the several other cases cited by respondents holding to the same effect. These include: Ladd v. Dart Equipment Corp. (1991) 230 Cal.App.3d 1088, 1099-1102 [no abuse of discretion by the trial court in dismissing an action under sections 583.410 and 583.420, subd. (a)(1) when summons and complaint not served until nearly 29 months after commencement of the action]; Bishop v. Silva (1991) 234 Cal.App.3d 1317, 1323 [motion to dismiss for failure to serve not affected by the fact that the opposing parties had notice of the lawsuit]; Terzian v. County of Ventura (1994) 24 Cal.App.4th 78, 82-83 [no abuse of discretion re dismissal and prejudice to the unserved defendants assumed when no amended complaint served for four years after accrual of wrongful death cause of action]; Kidd v. Kopald (1994) 31 Cal.App.4th 132, 138-139 [no abuse of discretion in dismissing action in part because of two-year delay in service of process]; see also Lopez, supra, 49 Cal.App.4th at p. 1295.)
Further, and as both Scarzella and the other authority just cited make clear, these dismissals were, quite obviously, all with prejudice, as the appeals from them are from judgments entered after the grant of a motion to dismiss. This issue, asserted as the first issue in appellants briefs, simply has no merit. Appellant contends that section 581, subdivision (b)(4), means that any dismissal ordered by a court is "without prejudice," but neglects to note that the general language of that section is followed by section 581, subdivision (m), which provides that the provisions of section 581 are "not an exclusive enumeration of the courts power to dismiss an action . . . ." (See, confirming this interpretation of § 581, subd. (m), Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 749; cf. also Lyons v. Wickhorst (1986) 42 Cal.3d 911, 915 (Lyons); and Kahn v. Kahn (1977) 68 Cal.App.3d 372, 378-383.)
The "with prejudice" issue was discussed hardly at all in the trial court and was not asserted in appellants opposition brief to that court as a basis for denying respondents motion. It is, therefore, waived. (See, e.g., our decision in In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002 (Hinman), and authority cited therein.)
In Lyons, Chief Justice Bird noted that, even in "the absence of express statutory authority, a trial court may, under certain circumstances, invoke its limited, inherent discretionary power to dismiss claims with prejudice," and cited as an example of such when "the plaintiff has failed to prosecute diligently. . . ." (Lyons, supra, 42 Cal.3d at p. 915.) She then went on to note that this "discretion to dismiss an action for lack of prosecution has recently been recodified in section 583.410." (Ibid.) The obvious implication is that the "recodification" of the "inherent discretionary power to dismiss claims" means to dismiss them "with prejudice"—as before.
In the course of oral argument on respondents motion to dismiss, the trial court specifically cited respondents argument that appellant had "misrepresented facts when you sought an extension" and heard extended argument from both sides on this issue, an issue which continues to dominate the parties arguments to us on appeal. After a careful examination of the record, we conclude that the trial court did not abuse its discretion in dismissing appellants action because, principally, of his several misstatements to the Commissioner in his repeated requests for extensions of time to serve his summons and complaint. We so conclude because there were, clearly, numerous and significant misstatements in the various applications (all filed under "penalty of perjury") by appellant. For example:
1. In his first application for an extension of time to serve respondents, filed on April 25, 2005, appellant checked the box asserting that "[n]otice of this application . . . is not required" and followed that statement with two references to "the underlying case" (clearly meaning the Contra Costa County action). He then asserted that: "Because the defendants are attorneys in the case, the service of the complaint could trigger insurance coverage interference that would be burdensome to the court and to the parties." Notwithstanding appellants dubious assertion at oral argument that the term "the case" did not refer to the Contra Costa County action, quite obviously it did and it was thus totally incorrect: respondents had been relieved of that role by order of the Contra Costa Superior Court 13 months earlier, i.e., in March 2004.
2. On April 16, 2007, in his response to Commissioner Boricks order to show cause, the order triggered by appellants ninth and final application for an extension of time to serve the complaint and summons, he recited, again "under penalty of perjury," that the "concurrent litigation in two other jurisdictions [obviously referring to the Contra Costa and San Mateo litigation] have resulted in two judgments and judicial findings of fact, specifically related to the facts in the current action. . . . [¶] . . . These two judgments total over $16,000,000 in damages. Additionally, I believe pursuant to the doctrine of res judicata the underlying factual findings are indisputable and settled with regard to this action . . . since essentially it is based on the same facts."
There are all sorts of problems with these statements. In the first place, appellants principal entity, ASI, was dismissed from the Contra Costa County action because of the failure to retain counsel almost 23 months earlier, i.e., on June 23, 2005. As far as the record before us reveals, the only party to recover any judgment in that action was co-plaintiff Nationwide Asset Recovery Services, LLC. It recovered a default judgment of a little over $4 million against AMS in October of 2005. And we find no semblance of any "judicial findings of fact" in either the Contra Costa or San Mateo default judgments.
The record provided us is, once again, very murky as to what, if any, the relationship was between (1) appellant, his and his wifes trust, and ASI on the one hand and (2) Contra Costa co-plaintiff Nationwide Asset Recovery Services, LLC, on the other. Appellant nowhere mentions the latter entity in his briefs to us and, when the Contra County action concluded in the fall of 2005, it and ASI were represented by different counsel.
3. Three times, appellant falsely claimed that the San Mateo action was pending when it was not. The first such assertion, again under "penalty of perjury," was made on April 25, 2005; the San Mateo County action was not even filed until November of that year. The second and third such assertions were made in appellants extension of time applications of August 31, 2006, and February 28, 2007, when, in fact, a default judgment had earlier been secured in that action by ASIs-then counsel, the Hopkins & Carley firm, on July 18, 2006.
4. Appellant repeatedly asserted that both the Contra Costa and San Mateo actions were "based practically on the same facts" as the present action, when in fact they were only marginally related. The instant action is basically a legal malpractice action against appellants former attorneys in the Contra Costa County action. That action, and the later San Mateo County action, involved, as far as appears from the record before us, battles between former business partners from whom appellants ASI sought to recover partnership debts and damages for the alleged misappropriation of the assets of the partnership and ASI.
This summary of the two substantive actions is, admittedly, drawn from respondents summary of them in the court below, but nowhere in his briefs to us or the trial court does appellant disagree with this summary.
These numerous misstatements of appellant, combined with several other factors lead us to conclude there was no abuse of discretion in the courts dismissal of appellants amended complaint. The other factors we have in mind are: (1) the 30-month plus delay between the filing of the malpractice lawsuit against respondents and the service of it on them; (2) the fact that no reasonable excuse for this delay appears on the record; (3) the fact that the wrong party is the plaintiff in this action; and (4) several other points raised in the record casting doubt on appellants motivations in all of this.
Plaintiff sued as an individual, but the parties contracting with the original respondents was the "Dominique and Patricia Black Revocable Trust." Hence, the named plaintiff was not the "real party in interest." (See Pillsbury v. Karmguard (1994) 22 Cal.App.4th 743, 753.)
There are at least two other factors, one already mentioned, and one not, which cast considerable doubt on appellants overall position in this appeal. The first, already mentioned in footnote 5, ante, is that respondents are not the only attorneys with whom appellant has had not just disagreements, but litigation, regarding their representation of him. In addition, and most distressful to us, is appellants belated suggestion—made only in his reply brief to us—that there `an appearance of impropriety on the part of Judge Alvarado because he and attorney Lukens were law school classmates and served together on the Hastings Law Review. In the first place, this argument was never advanced below, i.e., in front of one of the current targets of it, Judge Alvarado, and hence is waived on appeal. (See Hinman, supra, 55 Cal.App.4th at p. 1002 and authority cited therein.) Second, it was never suggested in appellants opening brief, and we will not consider arguments raised for the first time in an appellants reply brief. (Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2007) ¶ 9:78.) Third, and most importantly, this is an extremely serious and prejudicial charge to make at any phase of litigation, and we are distressed that, other than the obvious fact that Judge Alvarado ruled in favor of respondent Lukens and his colleagues, appellant provides absolutely no evidence whatsoever to support his serious charge of `an appearance of impropriety by a judicial officer.
C. Appellant has Waived his Claim that the Motion was Brought in the Wrong Court.
Appellants third and final argument is that respondents erred in going to "a different judge" to secure their order dismissing the complaint, i.e., that Commissioner Borick, having been the judicial officer handling appellants many requests for extensions of time to effect service should have been the judge ruling on respondents motion to dismiss.
First of all, public records identify Commissioner Arlene Borick as the Commissioner handling "Civil Case Mgmt. [Management]." That courts Local Rules make quite clear that the duties of that department of the court are quite different from that of the Law & Motion Department, in which respondents motion was originally noticed. (Compare Super. Ct. S.F. County, Local Rules, rules 3 and 8.) Second, appellant never raised this issue in the court below. The argument is, therefore, waived. (See Hinman, supra, 55 Cal.App.4th at p. 1002 and authority cited therein.)
IV. DISPOSITION
The judgment is affirmed.
We concur:
Lambden, J.
Richman, J.