Metropolitan News-Enterprise


Thursday, January 29, 2015


Page 1


State Supreme Court Will Not Review Ruling on Effect of Submitting Motions to Private Judges


By a MetNews Staff Writer


The California Supreme Court yesterday left standing a ruling that submission of a motion to vacate judgment to a private judge did not toll the time in which to appeal the underlying judgment.

The justices, at their weekly conference in San Francisco, voted unanimously to deny review in Conservatorship of Townsend, B247366, in which this district’s Div. Three, on Nov. 17, strictly construed the rule that tolling only applies when the motion is filed with the clerk of court.

The lower panel 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….”

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.

While the lender may have had a valid equitable argument, the justice explained, “equitable relief from a default in failing to file a timely appeal is not available.”

In other conference action, the justices denied a request to publish the Sept. 30 opinion of this district’s Div. Two in Tamman v. Nixon Peabody LLP, B252332. The Court of Appeal panel ruled that suspended attorney David Tamman’s suit, in which he claims he was “thrown under the bus” by his former firm in the face of a federal securities investigation, did not implicate protected activity for purposes of the anti-SLAPP statute.

The gravamen of the suit, the panel said, was Tamman’s claim that Nixon Peabody stole or destroyed 75 percent of his “Book of Business,” and failed “to act as a fiduciary” and to defend and indemnify him, as required by the partnership agreement.

“Although those claims were preceded or triggered by the SEC investigation, they did not arise from it,” Los Angeles Superior Court Judge Edward Ferns, sitting on appeal, wrote for the court.


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