Metropolitan News-Enterprise


Wednesday, August 17, 2016


Page 4


Judge Denies Motions She Sought to Postpone, Render Moot

Judge Duffy-Lewis Rules After Court of Appeal Finds She Acted Unreasonably in Scheduling Motions To Be Heard On a Date When the Court Would No Longer Have Jurisdiction


By a MetNews Staff Writer


Attorneys in a case that has been going on for six years were informed yesterday that a judge has denied motions for a new trial and for judgment notwithstanding the verdict, with her ruling coming after the Court of Appeal for this district ordered that a decision be made immediately, not following a hearing the judge had set after the jurisdictional deadline.

Los Angeles Superior Court Judge Maureen Duffy-Lewis held a hearing on Monday, in obedience to a writ issued by Div. Eight on Friday. Previously, a clerk in the courtroom of Judge Gregory Alarcon declined to set the motions for hearing on or prior to Aug. 15, the last date the court could act, and Duffy-Lewis, in the absence of the vacationing Alarcon, scheduled the hearing for Sept. 7.

The motions were filed by Bally Total Fitness of California, which operates gyms, after a jury found against it and in favor of cross-complainant PCAM, LLC., a parking management company.

Attorney Alex D. Guerrero, a partner in Lewis Brisbois Bisgaard & Smith, said yesterday that Duffy-Lewis’s decision “essentially caps some very long and protracted litigation,” remarking that the “ultimate judgment we obtained on behalf of PCAM against Bally’s in the amount of $715,882.41 is very vindicating.”

He noted that another phase of the litigation, involving a different party, will go to trial before Alarcon on Sept. 3.

Bally Seeks Hearing

Bally’s motions were filed and personally served on July 11. Although Code of Civil Procedure §661 provides that the court is to “designate the time for oral argument, if any, to be had” on new-trial motions, no notice of the hearing was received from Alarcon’s department.

In a declaration in support of an ex parte motion to have the hearing set on or before Aug. 15, one of Bally’s attorneys, Steven J. Renick of Manning & Kass, Ellrod, Ramirez, Trester LLP, recounted this interplay with Alarcon’s courtroom clerk, Cheryl Mason:

“[W]hen no such notice had been received by the beginning of August, on Wednesday, August 3, 2016 I called Department 36 and inquired of the clerk as to the status of the setting of the hearing. The clerk informed me that they had not been informed of the filing of the motions and so had not done the work-up to set a hearing date. She advised me that she would do so and would get back to me.

“When I had not heard back from the clerk as of Friday, August 5, 2016, I called Department 36 again. I called three times that day, including at the end of the day, but the clerk was never able to speak with me.

“On Sunday, August 7, 2016 and on the morning of Monday, August 8, 2016,1 gave notice to PCAM’s counsel that we would going in ex parte on Tuesday, August 9, 2016 to obtain a hearing date for the motions.

“On the afternoon of August 8, 2016, the Department 36 clerk contacted my office and advised us that because Judge Alarcon was going on vacation, the hearing on the motions could not be set until August 29, 2016, once Judge Alarcon returned. Unfortunately, this was after the deadline for ruling on the motions, which I told to the clerk.”

The ex parte motion wound up being heard on Aug. 9 by Duffy-Lewis, who denied relief and set the hearing for Sept. 7, before Alarcon.

Quick Pace

A petition for a writ of mandate was filed in the Court of Appeal on Aug. 11, with urgent action requested. Div. Eight issued an order that same day advising parties of the court’s “present intention to grant the petition and to issue a peremptory writ of mandate in the first instance.”

It gave lawyers for PCAM until 10 a.m. the following day to file opposition, which they did. Div. Eight issued its opinion that afternoon, granting the writ.

Acting Presiding Justice Laurence D. Rubin said, in Friday’s unpublished opinion, that Duffy-Lewis “erred by denying Bally’s ex parte application and scheduling the hearing on the motions beyond the jurisdictional deadline.”

He pointed out that while §661 does provide that a “motion for a new trial shall be heard and determined by the judge who presided at the trial,” it adds that “in case of the inability of such judge or if at the time noticed for hearing thereon he is absent from the county where the trial was had, the same shall be heard and determined by any other judge of the same court.”

Rubin went on to say:

“PCAM argues it is too late to have another judge hear Bally’s motion for new trial because, among other reasons, section 661 states that ‘[s]uch motion, if heard by a judge other than the trial judge shall be argued orally or shall be submitted without oral argument, as the judge may direct, not later than ten (10) days before the expiration of the time within which the court has power to pass on the same.’ However, this 10-day rule is not jurisdictional….

“Furthermore, we reject PCAM’s argument that it is now too late to obtain relief because Bally waited too long to contact the clerk regarding its motions. We do not believe the fault of the scheduling problem lies with Bally.”

The case is Bally Total Fitness of California v. Superior Court, B276736.

Guerrero was teamed with Lewis Brisbois attorney Raul L. Martinez.

Renick was joined by his Manning & Kass colleague Anthony J. Ellrod in arguing for the granting of a writ. Ellrod declined to comment, declaring that “we are unable to comment on pending litigation.”


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