Service Clock Runs if Nobody Is Stopping You

California ex rel. Edelweiss Fund, LLC v. JP Morgan Chase & Co., No. A158728 (D1d4 Dec. 22, 2020)

Code of Civil Procedure § 583.210 requires the plaintiff to serve a defendant within three years of filing. This, however is a California False Claims Act case, where the complaint stays sealed for at least 60 days while the AG or a local prosecutor decides to intervene. See Gov. Code § 12652(c)(8)(D). Since the point of sealing is to avoid tipping off the defendant, service of process is not permitted until the complaint is unsealed. Gov. Code § 12652(c)(2).

The AG got a number of extensions (which are permitted) and ultimately declined to intervene about 15 months after the complaint was filed. Unusually, Plaintiff then sought to extend the sealing for another nine months, ostensibly so it could reach out to other local prosecutors to see if they wanted to get involved. And then it extended the extension. And then Plaintiff just let the case sit without seeking an order unsealing for another year. 

Finally, almost four years after filing, Plaintiff asked the court to unseal the case. But it did so in a CMC statement, not by filing a motion. This exacerbated the problem because San Francisco being a master calendar court, the CMC statement went to a different department than the department responsible for unsealing. After that was finally worked out, the complaint was finally unsealed and Plaintiff started serving defendants—nearly four and a half years after the complaint was filed.

Defendants moved to dismiss under § 583.210, and the trial court agreed. The Court of Appeal affirms. The time for service is tolled during any period service is “impossible, impracticable, or futile due to causes beyond the plaintiff’s control.” § 583.240(d). That merited tolling during the window up till when the AG declined to join because service before that is prohibited by statute. 

After that, however, the ongoing sealing of the complaint was under Plaintiff’s control. Plaintiff could have asked the court to unseal—and the court would have agreed—any time after the AG declined to intervene. The fact that it would have taken a motion to lift the sealing does not change that. And since without that tolling, Plaintiff is past three years, the complaint was properly dismissed.

Affirmed.

Losing a Trial in Absentia Is Not a Default

Shayan v. Spine Care Orthopedic Physicians, No. B293857 (D2d8 Jan. 8, 2020)

Under Code of Civil Procedure § 473(b)’s mandatory relief provision, a Court is required to relive a moving party from a default or dismissal if its attorney files a declaration owning up to a mistake. But mandatory relief under § 473(b) is limited to relief from “defaults” and “dismissals,” which the more modern case law reads somewhat literally. A loss that is not a default or dismissal is not subject to mandatory relief.

Which is what happened here. Defendants failed to show up at trial. But instead of putting them into default, the trial court held a bench trial in their absence ultimately awarded relief to plaintiffs. That’s not a default, so no mandatory § 473(b) relief.

Affirmed.

No Mandatory § 473(b) Relief from Voluntary Dismissal

Jackson v. Kaiser Foundation Hosps., Inc., No. A150833 (D1d3 Feb. 8, 2019)

Plaintiff here followed the erroneous advice of an attorney regarding the statute of limitations and dismissed her case without prejudice. When the error was uncovered, she moved to vacate that dismissal under Code of Civil Procedure § 473(b), which affords mandatory relief from a “default or dismissal” due to an attorneys neglect, even if the neglect is inexcusable. The trial court denied the motion and Plaintiff appealed.

There’s a question as to whether the order is appealable. Generally, a § 473(b) seeks relief from a judgment of default or dismissal, which makes it appealable under § 904.1(a)(2) as an order entered after a final judgment. A voluntary dismissal, however, doesn’t result in the entry of judgment, so that logic doesn’t facially apply. But the Court nonetheless looks to some dicta in two cases and decides that a denial of a motion for relief is sufficiently final and the evidentiary record sufficiently clear to make the order appealable, even if the dismissal is not a judgment. 

I think I’m a little skeptical on this. Appellate jurisdiction is supposed to be a pure creature of statute. So we shouldn’t be opening up avenues to appeal that share some formal similarity with appealable orders, but aren’t actually the orders that the Legislature permitted to be appealed. After all, there is already a equitable safety-valve to appellate jurisdiction in the form of the writ of mandamus. So if the court really felt a need to get to the merits, it could have construed the notice of appeal here as a writ petition instead of creating a non-statutory appealable order.

And as to the merits, the mandatory relief provisions of § 473(b) apply only to defaults and dismissals. But they don’t apply to just any old dismissals, or so says the case law. They apply to default-like dismissals. That is, dismissals that result from whiffing on an obligation to respond. Like forgetting to file an opposition and stuff like that. An erroneous voluntary dismissal that results from an attorney’s inexcusable neglect won’t cut it.

Affirmed.

Blown Demurrer Opp. Counts as a "Dismissal" for Mandatory § 473(b) Relief

Pagnini v. Union Bank, N.A., No. A151390 (D1d5 Oct. 17, 2018)

Plaintiff’s attorney tried to file an amended complaint as a response to a demurrer. But the attorney didn’t know that Code of Civil Procedure § 472—the statute that permits an amendment as a response to a demurrer—had recently been amended to change the timing. Although the prior version let you moot a demurrer by filing an amendment before the demurrer hearing, the current version required the amended complaint to be filed before the opposition is due. This resulted in the clerk rejecting the amended pleading. The trial court ultimately granted the demurrer as unopposed and entered judgment for Defendant.

Several months later, Plaintiff filed a motion for mandatory relief under § 473(b). His motion was accompanied by a declaration from his attorney, attesting to the mistake that led to the dismissal. But the trial court denied the motion nonetheless. 

That was error. The mandatory relief provision in § 473(b) applies to both defaults and dismissals that are caused by the neglect (even the inexcusable neglect) of a party’s attorneys. At some point, the Legislature added dismissals to provide parity between mistakes by both plaintiffs and defense lawyers. Dismissals include failures to respond to “dismissal motions.” And while there does not appear to be a prior case that says it, the court finds that a failure to respond to a demurrer to the whole complaint readily fits into that category, given that if granted without leave to amend, a demurrer lead to a dismissal under § 581(f)(1). Which is what happened here after the attorney whiffed on the deadline.

Reversed.

Inherent Power Reaches Beyond the Pale

Huang v. Hanks, No. C084702 (D3 May 10, 2018)

Plaintiff, who is apparently mentally ill, has sought civil harassment restraining orders against, inter alios, Tom Hanks, Monica Lewinski, and the Dali Lama. The trial court denied the applications and threw out the claims as patently frivolous. While there’s no statute that specifically authorizes a court to dismiss cases that are facially ludicrous, the court here holds the trial court had the inherent power to do so. And, for that matter, the appeal is frivolous too, given that the Plaintiff’s assertions of error have no support at all in the record.

Affirmed.

Eject!!!

Shapira v. Lifetech Res., No. B283445 (D2d4 Apr. 17, 2018)

At trial, prior to making his closing argument, Plaintiff, sensing he was going down, tried to dismiss his case with prejudice under Code of Civil Procedure § 581(e). The trial court denied the motion and, after ruling for Defendant on the merits, awarded Defendant a substantial amount of attorneys' fees under Civil Code § 1717. 

But that was error.

Section 581(e) expressly permits a plaintiff to voluntarily dismiss a case, with prejudice, after the commencement of trial. If the dismissal is requested prior to the case being submitted for decision—which was not the case here because closings were not complete—leave of court is not required. So the trial court didn't have authority to deny the dismissal. And since Civil Code § 1717(b)(2) says there is no prevailing party when a case is terminated by voluntary dismissal, it was therefore also error to award fees to defendant. 

It might not seem fair to let Plaintiff weasel out of a fee award when he bailed while on the cusp of losing, but that’s what the law says.

Reversed.

Clearing the Decks for Appeal

Flowers v. Prasad, No. B260140 (D2d4 Jul. 17, 2015)

Plaintiff, who relies on a service dog, sued a restaurateur under the California Disabled Persons Act and the Unruh Act, because the restaurant wouldn’t let him bring his dog in. The trial court granted a demurrer on the Unruh Act claim. Plaintiff had the court dismiss the remaining DPA claim without prejudice to get to a final judgment to expedite his appeal. That procedure is ok. Although a voluntary dismissal isn’t generally appealable, it is when it follows an order dismissing significant claims in a case. There are some exceptions that address manipulation of appellate jurisdiction when the dismissal isn’t really final, but those aren’t at issue here.

The court goes on to reverse the grant of the demurrer on the Unruh Act claim.

Reversed.

A Hearing Delayed Is a Hearing Nonetheless.

Pielstick v. Midfirst Bank, No. B247106 (D2d2 Mar. 26, 2014)

Defendants demurred the second amended complaint brought by plaintiff, who is a pro per. At the hearing on the demurrer, the case was called, but defendants explained that they not received plaintiff’s opposition. The court twice continued the hearing to later in the day so that the court and the defendants could read plaintiff’s papers. At the continued hearing plaintiff asked to dismiss his case without prejudice under Code of Civil Procedure § 581, which permits a plaintiff to voluntarily to dismiss with or without prejudice “any time before the actual commencement of trial[.]” The court denied the request and granted the demurrer.

Read literally, § 581 would permit plaintiffs to perpetually delay the inevitable by dismissing a case without prejudice in order to avoid an impending adverse decisions on a dispositive motion. To prevent this result, courts have put a gloss on “commencement of trial” as it appears in § 581 to encompass any hearing on a dispositive motion, including a demurer. Thus, plaintiff could have dismissed his case without prejudice at any time before the demurrer hearing. But he didn’t do that. He asked to dismiss after the hearing was underway. Indeed, his request came after it had been continued twice. Reviewing the relevant precedent, the court holds that trial had begun for the purposes of § 581: “Where a trial court has allowed a brief continuance of a dispositive hearing for a limited purpose, a plaintiff is not entitled to utilize that time to file a voluntary dismissal of the action with the intention of reasserting the same allegations at a later date.” Plaintiff’s request was thus untimely.

Affirmed.