Opinion
B292610 B297072
01-19-2021
YAZMIN ORTIZ, Plaintiff and Appellant, v. RUDY EISLER et al., Defendants and Respondents.
Yazmin Ortiz, self-represented litigant, for Plaintiff and Appellant. Citron & Citron, Thomas H. Citron and Katherine A. Tatikian for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BC685414) APPEALS from orders of the Superior Court of Los Angeles County, Ernest M. Hiroshige, Judge. Affirmed in part, reversed in part with directions. Yazmin Ortiz, self-represented litigant, for Plaintiff and Appellant. Citron & Citron, Thomas H. Citron and Katherine A. Tatikian for Defendants and Respondents.
I. INTRODUCTION
Plaintiff Yazmin Ortiz appeals from an order dismissing her amended complaint, an order denying her motion for relief from the dismissal order, and an order denying her motion for reconsideration. The trial court dismissed plaintiff's amended complaint for her failure to serve defendants and to prosecute her case. Plaintiff contends that the court could not dismiss her complaint because she had two years within which to serve defendants. We disagree and affirm the order of dismissal. We vacate the court's order denying plaintiff's motions for relief from the dismissal order as void and remand the matter for further proceedings.
Defendants filed a respondents' brief and referred to themselves as "[s]pecially [a]ppearing [r]espondents." A "respondent" is an adverse party (Cal. Rules of Court, rule 8.10(2); see also Code. Civ. Proc., § 902) and a "party" is a person appearing in an action (Cal. Rules of Court, rule 1.6(15)). We asked plaintiff and defendants to brief whether defendants, who never appeared before the trial court, are respondents such that they have the right to appear on appeal.
Defendants contend they have standing to defend their interests on appeal because they could face severe prejudice if the dismissal order is reversed and cite in support Graf v. Gaslight (1990) 225 Cal.App.3d 291, 298, disapproved on other grounds by Watts v. Crawford (1995) 10 Cal.4th 743, 758, footnote 13. We are unpersuaded. Graf v. Gaslight involved defendants who specially appeared before the trial court. (Graf v. Gaslight, supra, 223 Cal.App.3d at p. 294.) Because these defendants never appeared below, they are not "parties." Accordingly, we will disregard defendants' brief and oral arguments. Defendants' requests for judicial notice remain granted, as those documents may be judicially noticed by this court on its own motion. (Evid. Code, §§ 452, 459.)
II. BACKGROUND
On December 4, 2017, plaintiff filed a complaint against defendants, the purported owners and property managers of an apartment in Santa Monica in which plaintiff was a tenant.
On January 18, 2018, the trial court ordered plaintiff to notify all parties of a case management conference scheduled for April 9, 2018.
On April 4, 2018, plaintiff filed her first amended complaint, alleging 31 causes of action, including for unlawful eviction, breach of contract, and intentional infliction of emotional distress.
On April 9, 2018, plaintiff appeared at the scheduled case management conference. Plaintiff had not served defendants and defendants did not appear. Following the hearing, the court issued a minute order indicating that it had not held the case management conference. The court instead set "an ORDER TO SHOW CAUSE RE: FAILURE TO SERVE for June 1, 2018 at 9:00 a.m. in this department. [¶] Declarations re: due diligence as to efforts to serve are to be filed three court days prior." The record does not include a transcript of this hearing.
By June 1, 2018, plaintiff still had not served defendants. Instead, she filed an ex parte application for an extension of time. In explaining why she had not yet served defendants, plaintiff explained, in full: "An offer of settlement and because there is another case pending that will affect the causes of action on this case as well as the defendants named." Plaintiff requested an extension of time to September 1, 2018, to serve defendants.
On June 1, 2018, the trial court conducted a hearing on the previously set order to show cause and on plaintiff's ex parte application. In a minute order, the court granted plaintiff's application for an extension of time and also set another "ORDER TO SHOW CAUSE RE: SANCTIONS/DISMISSAL AGAINST PLAINTIFF FOR FAILURE TO [TIMELY] SERVE for July 13, 2018." The court again stated, "Declarations re: due diligence as to efforts to serve are to be filed three court days prior if service has not been completed." The record does not include a transcript of these proceedings.
Although plaintiff requested an extension until September 1, 2018, according to the minute order, the court only granted her an extension until July 13, 2018.
On July 11, 2018, plaintiff filed a notice of related case, indicating that case no. SC125247 involved the same parties on the same or similar claims.
By July 13, 2018, plaintiff had still not served defendants or filed a declaration as to her diligence in serving defendants. Instead, she filed a second ex parte application, asserting that she required another extension of time to serve defendants. We recite here the entirety of plaintiff's explanation for why she needed such an extension: "A Notice of Related Cases has been filed and the case needs to be related for consolidation and the complaint amended. Because there was an offer of settlement and because there is an appeal pending that will affect the causes of action on this case, in addition to the fact that the plaintiff is in talks with an attorney."
On July 13, 2018, the trial court conducted a hearing on the order to show cause. Plaintiff appeared and presented argument. Defendants did not appear. Following the hearing, the court issued a minute order finding that plaintiff had failed to serve the complaint and had not filed a declaration of due diligence regarding her efforts to serve defendants. The minute order recited that the court sustained the order to show cause and "order[ed] the case dismissed for failure to serve pursuant to California Rules of Court [rule] 3.110(b)." The trial court also denied plaintiff's second ex parte application for an extension of time in which to serve defendants. The court did not sign the minute order.
Because the court did not specify whether the dismissal was with or without prejudice, we construe the dismissal to be without prejudice. (See Gagnon Co. v. Nevada Desert Inn, Inc. (1955) 45 Cal.2d 448, 455.)
Further rule references are to the California Rules of Court.
On September 11, 2018, plaintiff filed a notice of appeal, stating that she was appealing from the order of dismissal.
On November 7, 2018, the trial court issued a minute order that provided: "pursuant to the [c]ourt's minute order July 13, 2018 the [c]ourt had ordered the case dismissed for plaintiff's failure to prosecute. [¶] The [c]ourt . . . indicates that it did not sign the minute order of July 13, 2018. [¶] The [c]ourt's order of dismissal of July 13, 2018 stands." The court signed the November 7, 2018, order.
On February 13, 2019, plaintiff filed a motion for relief from the dismissal order pursuant to Code of Civil Procedure section 473, subdivision (b). Plaintiff sought to limit the requested relief to only 21 of the 31 causes of action in the amended complaint. On February 20, 2019, the trial court denied the motion as untimely and as failing to provide adequate grounds.
Further statutory references are to the Code of Civil Procedure unless otherwise indicated.
On March 4, 2019, plaintiff moved for reconsideration of the February 20, 2019, order. The trial court denied the motion on April 3, 2019, finding that plaintiff had presented no new facts or circumstances. On April 19, 2019, plaintiff filed a notice of appeal from the February 20, 2019, and April 3, 2019, orders.
III. DISCUSSION
A. Dismissal Order
Plaintiff's notice of appeal states that she is appealing from the July 13, 2018, order of dismissal, which, contrary to the requirements of section 581d, was unsigned. (See Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1578-1579 [dismissing appeal because the lack of a written order of dismissal signed by the trial court meant there was no final judgment to appeal].) The trial court, however, did sign the November 7, 2018, order, which stated that the July 13, 2018, order of dismissal "stands." We will construe the November 7, 2018, order as rendering the July 13, 2018, dismissal order a signed order, nunc pro tunc. (See, e.g., In re Marriage of Tamraz (1994) 24 Cal.App.4th 1740, 1748 ["The purpose of a judgment nunc pro tunc 'is to avoid injustice to a person whose rights are threatened by a delay which is not his fault'"].) We thus conclude that the dismissal order is appealable.
We next turn to the merits of plaintiff's appeal from the order of dismissal, which we review for an abuse of discretion. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 331; Van Keulen v. Cathay Pacific Airways, Ltd. (2008) 162 Cal.App.4th 122, 131.)
As a preliminary matter, we note that plaintiff has not submitted a reporter's transcript or adequate substitute such as a settled or agreed statement from: (1) the April 9, 2018, hearing at which the trial court initially set an order to show cause for plaintiff's failure to serve defendants; (2) the June 1, 2018, hearing on the order to show cause at which the court granted plaintiff an extension of time to serve defendants and also set another order to show cause hearing regarding sanctions or dismissal for plaintiff's continued failure to serve defendants; or (3) the July 13, 2018, hearing on the order to show cause where the court dismissed plaintiff's amended complaint. "[I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment. [Citations.] 'This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' [Citations.] 'In the absence of a contrary showing in the record, all presumptions in favor of the trial court's action will be made by the appellate court. "[I]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented."' [Citation.]" (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.)
Plaintiff contends that Hawks v. Hawks (2006) 141 Cal.App.4th 1435, 1437, and section 583.420, subdivision (a)(1) precluded the trial court from dismissing the case prior to two years from its filing. We disagree.
Section 583.420, subdivision (a)(1) provides that "[t]he court may not dismiss an action pursuant to this article for delay in prosecution except after . . . [¶] [s]ervice is not made within two years after the action is commenced against the defendant." That section does not, however, entitle a plaintiff to delay service for two years. To the contrary, section 583.150 provides that "[t]his chapter [Chapter 1.5, Dismissal for Delay in Prosecution] does not limit or affect the authority of a court to dismiss an action . . . under a rule adopted . . . by the Judicial Council . . . or otherwise under inherent authority of the court."
Additionally, trial courts are empowered to dismiss cases for violation of the Trial Court Delay Reduction Act (Gov. Code, §§ 68600-68620), the purpose of which is to reduce unnecessary delay in litigation (see id., § 68603, subd. (a) [in establishing standards for trial court delay reduction, "the Judicial Council shall be guided by the principles that litigation, from commencement to resolution, should require only that time reasonably necessary for pleadings, discovery, preparation, and court events, and that any additional elapsed time is delay and should be eliminated"]). The Judicial Council, pursuant to the Trial Court Delay Reduction Act, has promulgated rule 3.110(b), which provides that "[t]he 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 . . . ." Moreover, Government Code section 68608, subdivision (b) recognizes that: "Judges shall have all the powers to impose sanctions authorized by law, including the power to dismiss actions or strike pleadings, if it appears that less severe sanctions would not be effective after taking into account the effect of previous sanctions or previous lack of compliance in the case. Judges are encouraged to impose sanctions to achieve the purposes of this article." (Italics added.)
Here, the trial court did not dismiss plaintiff's action pursuant to section 583.420 or any other section in Title 8, Article 4, of the Code of Civil Procedure. Instead, in dismissing the amended complaint, the court cited to rule 3.110(b), which, as noted above, requires that a plaintiff serve defendants within 60 days of filing the complaint. Plaintiff did not serve defendants within 60 days of filing the complaint or at any other time during the seven months that her case was pending. Further, she failed to comply with: the court's January 18, 2018, order to serve notice of the case management conference on defendants; the court's April 9, 2018, order to either serve defendants by June 1, 2018, or submit a declaration of diligence explaining her efforts to do so; and the court's June 1, 2018, order to serve defendants by July 13, 2018, or submit a declaration of diligence. We recognize that "[p]reventing parties from presenting their cases on the merits is a drastic measure; terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective." (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.) Here, as we detailed above, plaintiff previously failed to comply with rule 3.110(b) and the court's prior orders. Further, we presume that during the hearings on April 9, 2018, June 1, 2018, and July 13, 2018, plaintiff presented matters that would support the court's conclusion that less severe sanctions would not be effective after taking into account plaintiff's lack of compliance in the case. (Jameson v. Desta, supra, 5 Cal.5th at pp. 608-609.) On this record, we conclude the court did not abuse its discretion in dismissing the amended complaint. B. Orders Denying Motion for Relief from Dismissal Order and Motion for Reconsideration
Plaintiff's citation to Levitz v. The Warlocks (2007) 148 Cal.App.4th 531, 535-536, in support of her proposition that she should not be penalized for violating pretrial rules, is meritless. In that case, the court concluded that parties should not be penalized for their counsel's noncompliance with statutes that permit a court to dismiss an action for failure to prosecute. (Ibid.; see also Garcia v. McCutchen (1997) 16 Cal.4th 469, 476.) Here, it is plaintiff who failed to comply with the California Rules of Court and the court's orders to show cause, and she is not excused from her own noncompliance. "In propria persona litigants are entitled to the same, but no greater, rights than represented litigants and are presumed to know the delay-reduction rules." (Wantuch v. Davis, supra, 32 Cal.App.4th at p. 795.) --------
We next consider plaintiff's appeal from the trial court's order denying her motion for relief from the dismissal order pursuant to section 473, subdivision (b). We conclude that plaintiff's September 11, 2018, filing of a notice of appeal divested the court of jurisdiction to consider her motion for relief. (See Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 198 ["[S]ection 916, as a matter of logic and policy, divests the trial court of jurisdiction over the subject matter on appeal—i.e., jurisdiction in its fundamental sense"]; Kroger Co. v. Workers' Comp. Appeals Bd. (2012) 210 Cal.App.4th 952, 959 [appeal is perfected when notice of appeal is filed]; Copley v. Copley (1981) 126 Cal.App.3d 248, 298 ["During the pendency of an appeal, the trial court is without power to hear a motion to vacate judgment from which an appeal has been taken"].) We therefore vacate the order denying the motion for relief from the dismissal order as a void order. (Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th at p. 200; Young v. Tri-City Healthcare Dist. (2012) 210 Cal.App.4th 35, 53.) Upon remand, the trial court should resolve the motion for relief. We express no opinion on the merits of plaintiff's motion.
We also consider plaintiff's appeal of the trial court's order denying her motion for reconsideration. That order is not separately appealable but can be reviewed on appeal as part of an appeal from an appealable order. (§ 1008, subd. (g).) Because the order denying the motion for relief from the dismissal order is void, the order denying the motion for reconsideration is also void.
IV. DISPOSITION
The dismissal order is affirmed. The orders denying the motion for relief from the dismissal order and motion for reconsideration are reversed as void. The matter is remanded for further proceedings on the motion for relief. The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KIM, J. We concur:
RUBIN, P. J.
MOOR, J.