Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. 30-2009-00293692, Robert J. Moss, Judge.
Watten, Discoe, Bassett & McMains and Pamela S. Ivanicki for Plaintiff and Appellant.
The Law Office of Cleidin Z. Atanous and Cleidin Z. Atanous for Defendants and Respondents.
OPINION
MOORE, ACTING P. J.
This case presents a battle of set aside maneuvers. More than two years after her personal injury auto accident case was dismissed due to nonpayment of transfer fees, plaintiff and appellant Stephanie Hodges (Hodges) filed an ex parte application to set aside the dismissal order. The Los Angeles County Superior Court granted her application and the case was then transferred to the Orange County Superior Court. Defendant and Respondent Krista Marie Bravo (Bravo) then filed a motion to set aside the reinstatement order because she had received no notice of the ex parte application and because the application should have been denied on its merits in any event. The Orange County Superior Court granted her motion.
Hodges appeals from the order granting Bravo’s set aside motion. We affirm. Substantial evidence supports the court’s finding that Bravo received no notice of the ex parte application.
I
FACTS
A. Introductory Comments:
A snarled web of background facts makes this case appear more difficult than it is. We recite the procedural history because without it, the set aside motion and order at issue make no sense. However, we should keep in mind that, in the end, we need only address Bravo’s January 13, 2010 set aside motion and the March 26, 2010 minute order granting it.
B. August 1, 2007 Dismissal Order:
Hodges filed a lawsuit against Bravo and others in connection with an automobile accident that took place in Orange County, California in September 2004. However, the lawsuit was filed in Los Angeles County Superior Court. (Hodges v. Silveira (Super. Ct. L.A. County, 2009, No. BC359543).) On February 20, 2007, the Los Angeles Superior Court ordered that the case be transferred to the Orange County Superior Court and that Hodges pay the transfer fees.
Eventually, the Los Angeles Superior Court issued an order to show cause why the case should not be dismissed for failure to pay transfer fees. No party appeared at the August 1, 2007 hearing on the order to show cause. Good cause not having been shown why the transfer fees had not been paid, the court dismissed the case that date. On August 2, 2007, the court clerk served notice of entry of the dismissal order on Hamed Yazdanpanah, the attorney for Hodges.
On August 14, 2007, Mercury Insurance Group, on behalf of codefendant Darlene Silveira, wrote a letter to Attorney Yazdanpanah. The letter stated the court had provided notice that the transfer fees had not been paid and the case had been dismissed. Mercury said that it would work to resolve the case once Attorney Yazdanpanah provided a court order showing that the case had been reinstated. Mercury sent a follow-up letter on October 11, 2007. In that letter, Mercury expressed its understanding that the case had not been reinstated following the dismissal due to nonpayment of transfer fees.
This was not the last letter to Attorney Yazdanpanah concerning the dismissal. On October 30, 2007, Attorney Stefanie T. Cover, representing Bravo, wrote: “As you know our firm has been notified by the court that this case has been dismissed. Please advise our office when this case has been reinstated by the court so that we may proceed with discovery.”
C. August 7, 2009 Reinstatement Order:
Two years went by before Attorney Yazdanpanah took action. On August 7, 2009, he filed an ex parte application to set aside the dismissal based on excusable neglect, pursuant to Code of Civil Procedure section 473, subdivision (b). In that application, Attorney Yazdanpanah explained that he did not appear at the August 1, 2007 hearing on the order to show cause re dismissal because checks had been sent to the court clerk for payment of the transfer fees. In his supporting declaration, Attorney Yazdanpanah claimed he had been operating “under the assumption that the court had accepted” the transfer fees. He provided copies of the faces of two checks dated March 20, 2007, payable to the Orange County Superior Court and “LASC, ” respectively. He did not provide copies of the backs of the checks. There was no indication on the faces of the checks that the checks had been processed or paid.
Attorney Yazdanpanah was the only attorney present at the August 7, 2009 hearing on the ex parte application. The court expressed concern about the propriety of the matter being handled on an ex parte basis. The attorney stated: “I have given notice. They have no objection to have it on[.]” In his declaration in support of the application, Attorney Yazdanpanah declared: “On August 6, 2009, I telephoned Ms. Stefanie T. Cover, counsel for the defendant and left a message advising her of our intention to move ex-parte so that we may confirm payment of the transfer fees and get this case transferred. I followed that message with a facsimile[.]”
In explaining why he was bringing the matter ex parte, Attorney Yazdanpanah said: “The... problem is, your Honor, that I have an appointment with our client today at 4 o’clock who has... advised me with... all kinds of... threats that they want this matter today.” The attorney also stated: “My client’s going away, your Honor. I am going away. The defendants have been given notice. They have no objection either. It’s been close to a year, your Honor, since this matter has been dismissed, and we don’t want to wait another 30 days for that matter.”
When the court asked why he had waited so long to file the application, Attorney Yazdanpanah replied that he had been “under the impression that the case had been transferred.” The court expressed doubt that it had the authority under Code of Civil Procedure section 473, subdivision (b) to grant the application, since it had been filed more than six months after the dismissal. The attorney asserted that the court had the inherent authority to grant the application, although he conceded that he had not made that argument in his ex parte application.
In granting the application, the court found that, two years earlier, it had been “in error in assuming that the transfer fees had not been paid.” The court concluded: “[I]t does appear to the court that the transfer fees had in fact been tendered and perhaps lost by the court, in that... the plaintiff did not file a request for dismissal, but that this was a dismissal entered by the court in error. The court always retains jurisdiction and has the inherent power to correct errors made by the court.”
D. March 26, 2010 Minute Order Vacating Reinstatement:
On January 13, 2010, Bravo filed a motion to set aside the reinstatement of the case. She maintained that her attorney had never received notice of the ex parte application and would have opposed the application if given the opportunity. More pointedly, Bravo claimed Attorney Yazdanpanah committed perjury when he represented that he had left a voice mail message for, and sent a fax to, her attorney, and when he said that he had given notice and Bravo had no objection to the ex parte application. Turning to the merits of the ex parte application, Bravo also argued that the court erred in granting relief because the application was made more than six months after the dismissal order was entered and because Hodges had not shown mistake, inadvertence, surprise or excusable neglect. Finally, Bravo requested sanctions against Attorney Yazdanpanah.
Hodges hired a new attorney to file her opposition to Bravo’s set aside motion. In her opposition, Hodges insisted that notice had in fact been given to Bravo, and offered telephone and facsimile transaction records in support of her position. Hodges also argued that the Orange County Superior Court had no authority to set aside an order entered by the Los Angeles County Superior Court.
A hearing was held at the Orange County Superior Court on March 26, 2010. Counsel appeared for Bravo, and for Attorney Yazdanpanah, in connection with the sanctions demand against him. No one appearing on behalf of Hodges, the court granted Bravo’s motion without argument.
A minute order granting Bravo’s set aside motion and vacating the reinstatement of the case was entered on March 26, 2010. The minute order stated, inter alia: “On 3/24/10 this court contacted Judge Charles Palmer of the Los Angeles County Superior Court to inquire if he would accept transfer of this case for the limited purpose of hearing this motion. He declined, adding that he approved this court reconsidering his ruling. While the court is not aware of any specific authority for this court to review the decision of another Superior Court Judge in this fashion, the court does have inherent authority under CCP § 128(8). The court finds that plaintiff’s attorney did not provide notice of the ex parte motion before Judge Palmer and that relief was granted after the six month period specified in CCP § 473. Also, the time limit for filing transfer fees is 5 days per statute. The order reinstating this case is vacated and the matter is dismissed.”
Code of Civil Procedure section 128, subdivision (a)(8), to which the court evidently referred, gives every court the power to “control its process and orders so as to make them conform to law and justice.” Code of Civil Procedure section 399, subdivision (a) contains a provision regarding the plaintiff’s payment of transfer fees and costs within five days after service of notice of the transfer order. It also permits, on noticed motion, the dismissal of an action without prejudice due to nonpayment of transfer fees and costs within 30 days after service of notice of the transfer order.
It is this order that Hodges challenges in her appeal.
II
DISCUSSION
A. Reconsideration of Reinstatement Order:
Hodges characterizes the order on Bravo’s motion not as a ruling on a set aside motion, but as a ruling on a request for reconsideration. Construed in this manner, she maintains that the Orange County Superior Court had no authority to reconsider and vacate an order of the Los Angeles Superior Court entered with respect to an ex parte application.
She is correct that, as a general rule, “one trial court judge may not reconsider and overrule a ruling of another judge. [Citations.]” (Curtin v. Koskey (1991) 231 Cal.App.3d 873, 876-877.) “For one superior court judge, no matter how well intended, even if correct as a matter of law, to nullify a duly made, erroneous ruling of another superior court judge places the second judge in the role of a one-judge appellate court.” (In re Alberto (2002) 102 Cal.App.4th 421, 427.)
However, we disagree with Hodges’s characterization of Bravo’s motion, notwithstanding the comments of both trial judges. As the March 26, 2010 order reflects, Judge Robert J. Moss of the Orange County Superior Court contacted Judge Palmer of the Los Angeles County Superior Court and asked whether he would accept the transfer of the case for the sole purpose of hearing Bravo’s motion. Judge Palmer did not accept the transfer. He remarked that he approved the Orange County Superior Court’s reconsideration of his reinstatement order. Judge Moss, in his order, noted that he was not aware of any authority for the Orange County Superior Court to review the decision of the Los Angeles County Superior Court in that manner, but nonetheless observed that the court had certain inherent powers under Code of Civil Procedure section 128. However, neither Judge Palmer’s remarks nor Judge Moss’s responsive remarks convert Bravo’s set aside motion into a motion for reconsideration. A set aside motion is what she filed.
Even were we to apply the authorities Hodges cites, having to do with requests for reconsideration, she would not prevail. She cites, for example, Greene v. State Farm Fire & Casualty Co. (1990) 224 Cal.App.3d 1583 (Greene). As the court stated there, “The power of one judge to vacate an order duly made by another judge is limited.... ‘Except in the manner prescribed by statute a superior court may not set aside an order regularly made.’” (Id. at p. 1588; see also In re Alberto, supra, 102 Cal.App.4th 421.) Hodges says that, no timely Code of Civil Procedure section 1008 motion for reconsideration having been filed, there was no statutory authority for Judge Moss to “rethink” or reconsider Judge Palmer’s order.
Hodges overlooks Code of Civil Procedure section 473, subdivision (b), which permits a court to grant relief from an order taken against a party “through his or her mistake, inadvertence, surprise, or excusable neglect.” Greene specifically distinguished motions brought under section 473, subdivision (b), and observed that it was too late for the moving parties in the case before it to bring a motion under that statute. (Greene, supra, 224 Cal.App.3d at pp. 1589-1590.) Dunas v. Superior Court (1970) 9 Cal.App.3d 236, upon which Hodges also relies, made the same distinction. (Id. at pp. 238-240.) Although section 473, subdivision (b) did not give Judge Moss the authority to “rethink” Judge Palmer’s order, it did give Judge Moss the authority to vacate the order on specified grounds.
Even if we were to disregard the application of Code of Civil Procedure section 473, subdivision (b), we would affirm the ruling at issue. As stated in In re Alberto, supra, 102 Cal.App.4th 421, there are “two narrow lines of cases that appear to authorize one trial judge to reconsider an issue already decided by a colleague: one, where the first judge is unavailable [citation], or two, where the first order was made through inadvertence, mistake, or fraud. [Citations.]” (Id. at p. 430.)
With respect to the first line of cases, having to do with the unavailability of the original judge, the record shows that Judge Palmer declined to accept the transfer of the case and expressed his approval of Judge Moss’s hearing the motion. Furthermore, as Code of Civil Procedure section 399, subdivision (c) provides: “The court to which an action or proceeding is transferred under this title shall have and exercise over the same the like jurisdiction as if it had been originally commenced therein, all prior proceedings being saved....” The assertion that Judge Moss had no authority to act in this matter is in direction contravention of section 399, subdivision (c). Clearly, Judge Moss had the authority to hear the case. (Curtin v. Koskey, supra, 231 Cal.App.3d at p. 877.)
Hodges focuses on the second line of cases and says Judge Moss had no authority to act because Judge Palmer had not made his order through inadvertence, mistake, or fraud. Yet Judge Moss found that Hodges’s “attorney did not provide notice of the ex parte motion before Judge Palmer[.]” Although this is not the same as a finding of fraud on the part of Hodges’s attorney, it is tantamount to a finding that Judge Palmer ruled on the mistaken belief that notice had been given. So, even were we to apply the line of cases Hodges requests, we would conclude that Judge Moss did have the authority to vacate the reinstatement order.
B. Code of Civil Procedure Section 473, Subdivision (b):
As Greene, supra, 224 Cal.App.3d 1583 and Dunas v. Superior Court, supra, 9 Cal.App.3d 236 make clear, one judge may vacate an order of another judge when ruling upon a motion satisfying the requirements of Code of Civil Procedure section 473, subdivision (b). “As relevant here, the discretionary relief provision of section 473, subdivision (b) provides that: ‘The 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.’” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 254.)
“‘A ruling on a motion for discretionary relief under section 473 shall not be disturbed on appeal absent a clear showing of abuse.’ [Citation.] ‘“[T]hose affidavits favoring the contention of the prevailing party establish not only the facts stated therein but also all facts which reasonably may be inferred therefrom, and where there is a substantial conflict in the facts stated, a determination of the controverted facts by the trial court will not be disturbed.”’ [Citations.]” (Zamora v. Clayborn Contracting Group, Inc., supra, 28 Cal.4th at pp. 257-258.)
Although Bravo did not articulate it in exactly this way, in her set aside motion she essentially claimed that the order vacating the dismissal and reinstating Hodges’s lawsuit was taken against her through her surprise, inasmuch as she received no notice of Hodges’s ex parte application and had no opportunity to oppose it. In granting Bravo’s motion, the court found that Hodges had failed to give Bravo notice of the ex parte application. This finding is supported by substantial evidence.
In support of her motion, Bravo provided the declaration of Attorney Cover. Attorney Cover declared that neither she nor anyone else in her office had received notice of the ex parte application either by telephone or by facsimile transmission. She also stated that if she had received notice of the ex parte application, she would have appeared at the hearing and vigorously opposed the application.
In addition, Attorney Cover provided records showing all incoming and outgoing telephone calls and facsimile transmissions, to herself and her assistant, on August 5 and 6, 2009. She pointed out that neither Attorney Yazdanpanah’s telephone number nor his fax number were reflected on those records for either date. She asserted the records showed that Attorney Yazdanpanah’s claim to have provided notice was false.
In opposition to Bravo’s motion, Hodges corrected two of the representations Attorney Yazdanpanah had made to the court at the hearing on the ex parte application. Where Attorney Yazdanpanah had represented that on August 6, 2009, he had both left a telephone message for Attorney Cover and sent her a facsimile transmission, the representations were inaccurate. In fact, he had not telephoned Attorney Cover since July 29, 2009 and the facsimile transmission was sent on August 5, 2009. When he declared that he had left a voice mail message for Attorney Cover on August 6, 2009, he must have been thinking of the July 29, 2009 telephone call. In any event, in his declaration in opposition to Bravo’s set aside motion, Attorney Yazdanpanah maintained that his error regarding the voice mail message did not change the fact that he had provided notice by facsimile transmission on August 5, 2009, and that Attorney Cover had never told him that she would oppose a motion to vacate the dismissal.
Hodges also explained that Attorney Yazdanpanah’s facsimile number is blocked whenever he sends a facsimile transmission. Consequently, his number would not be reflected on Attorney Cover’s records and the fact that his number did not appear on her records was not conclusive. Furthermore, Hodges provided certain facsimile transmission records which she claimed showed a facsimile transmission from Attorney Yazdanpanah’s office to Attorney Cover’s office on August 5, 2009, at either 8:54 a.m. or 9:12 a.m., and lasting either 30 or 35 seconds.
In reply, Bravo pointed out inconsistencies between Attorney Yazdanpanah’s sets of records, as to whether the purported facsimile transmission was sent at 8:54 a.m. or at 9:12 a.m. She also suggested that one of the records appeared to have been “doctored, ” given inconsistencies in font size and spacing. She further suggested that a transmission that only lasted 30 or 35 seconds likely did not go through.
Bravo also provided an additional declaration of Attorney Cover. Attorney Cover maintained that she had neither received a telephone call from Attorney Yazdanpanah on July 29, 2009 nor spoken to him on that date. She stated that she attended two case management conferences and a deposition on that date and never went into her office. Attorney Cover declared that she never received a copy of the letter purporting to give notice of the ex parte application until an attorney service obtained a copy of the ex parte application in October 2009. She attached to her declaration a copy of the attorney service’s invoice.
Clearly, the court’s determination of whether the challenged order was entered due to “the attorney’s mistake, inadvertence, surprise, or neglect is in part a credibility determination. [Citation.] ‘Credibility is an issue for the fact finder.... [W]e do not reweigh evidence or reassess the credibility of witnesses. [Citation.].... When... “the evidence gives rise to conflicting reasonable inferences, one of which supports the findings of the trial court, the trial court’s finding is conclusive on appeal....” [Citation.]’ [Citation.]” (Cowan v. Krayzman (June 20, 2011, B218663) __ Cal.App.4th __ [11 D.A.R. 9043, 9046].)
In the face of competing declarations, the court here found that notice of the ex parte application had not been given to Bravo. The court’s finding is conclusive on appeal. (Cowan v. Krayzman, supra, __ Cal.App.4th __ [11 D.A.R. 9043, 9046].) No notice having been given to Bravo as required by law (Cal. Rules of Court, rules 3.1203, 3.1204; see also Datig v. Dove Books, Inc. (1999) 73 Cal.App.4th 964, 967, 976-978), the order was taken against her by surprise. This being an appropriate ground for relief under Code of Civil Procedure section 473, subdivision (b), the court did not err in granting Bravo’s set aside motion.
C. Dismissal:
As her final argument, Hodges cites authority providing that “[t]rial courts should only exercise [the] authority [to dismiss] in extreme situations, such as when the conduct was clear and deliberate, where no lesser alternatives would remedy the situation [citation], the fault lies with the client and not the attorney [citation], and when the court issues a directive that the party fails to obey. [Citation.]” (Del Junco v. Hufnagel (2007) 150 Cal.App.4th 789, 799.) Hodges says there was an alternative available to Judge Moss. All he had to do was permit Hodges to resubmit her ex parte application to Judge Palmer and have Bravo present her evidence and arguments for Judge Palmer’s determination.
In making this argument, Hodges disregards several points. First, the matter that was pending was a motion by Bravo, not an application by Hodges. Second, Judge Palmer had already expressed his unwillingness to accept the transfer of the case. Third, the cases upon which Hodges relies (Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 765; Del Junco v. Hufnagel, supra, 150 Cal.App.4th at p. 799) have to do with terminating sanctions, not set aside motions, and are inapposite.
III
DISPOSITION
The order is affirmed. Bravo shall recover her costs on appeal.
WE CONCUR: ARONSON, J., IKOLA, J.