Metropolitan News-Enterprise


Wednesday, November 19, 2014


Page 1


Court Warns on Submitting Motions to Private Judges

Appeal Dismissed Because Litigant Did Not File With Clerk


By a MetNews Staff Writer


Submission of a motion to vacate judgment to a private judge did not toll the time in which to appeal the judgment, because the applicable rule says tolling only applies when the motion is filed with the clerk of court, the Court of Appeal for this district has ruled.

Div. Three Monday dismissed an appeal by Aurora Loan Services, LLC from a ruling by retired Los Angeles Superior Court Judge Thomas Nuss, sitting as a private judge, in a property dispute. Nuss ruled that Louise Townsend was not mentally competent when, at the age of 79, she borrowed more than $340,000 from Aurora to refinance her LaVerne home 10 years ago.

Nuss was appointed to hear the case by stipulation in 2010. He ultimately tried the case, found Townsend incompetent, and declared the grant deed, deed of trust, and promissory note related to the loan to be void. He awarded attorney fees to the conservator and the estate, gave the conservator credit for loan payments, and ruled that Aurora had waived any right to reimbursement.

Judgment was entered Dec. 13, 2012, and notice was served by the conservator that day. On Dec. 28, the last day on which a motion to vacate could have been filed under the Code of Civil Procedure, such a motion was submitted to Nuss at Inland Valley Arbitration and Mediation Services.

An appeal was filed March 1, one day after the conservator’s counsel sent a letter to Nuss informing him that the motion to vacate was not filed with the clerk of court, as required by statute. The conservator then moved to dismiss on the ground the appeal was not filed within 60 days of service of notice of entry of judgment.

Justice Richard Aldrich said the conservator was correct. While a timely filed motion to vacate would have stayed the 60-day period, the justice said, there was no such motion.

“By referring to the motion to vacate as ‘filed with Judge Nuss,’ Lender appears to contend the parties’ stipulation somehow excused compliance with the requirement to ‘file with the clerk’ the motion to vacate as stated in section 663a, subdivision (a),” the jurist wrote. “The parties’ stipulation that Judge Nuss would preside over the trial conferred judicial power to act as a temporary judge.  The parties’ stipulation did not permit them or Judge Nuss to ignore the Code of Civil Procedure, especially where the Legislature has carefully drafted the jurisdictional scheme for posttrial motions.  All statutes, Rules of Court, judicial ethics, and case law remain applicable to the proceedings before a temporary judge.”

Aldrich went on to reject the lender’s argument that the motion to vacate should be considered timely filed as a matter of estoppel or justifiable reliance, since the parties had been submitted documents directly to Nuss at IVAMS since his appointment, and the conservator did not raise the issue until it was too late for the lender to file with the court clerk or to appeal within the 60-day period.

“We recognize the equities may favor Lender because had [conservator Barbara] Gonzales opposed the motion on this ground, or had Judge Nuss rejected the motion, Lender could have timely filed with the clerk the motion to vacate or timely filed a notice of appeal,” he said. “But, equitable relief from a default in failing to file a timely appeal is not available."

Attorneys on appeal were Gary C. Wunderlin for the conservator and Eric P. Early, Bryan M. Sullivan, Allison S. Hyatt and Christopher Ritter of Early Sullivan Wright Gizer & McRae for the lender.

The case is Conservatorship of Townsend, 14 S.O.S. 5164.


Copyright 2014, Metropolitan News Company