Monday, November 18, 2019
Page 3
Los Angeles Superior Court Appellate Division:
Judgment Entered After Motion to Transfer to Another County Was Granted Can’t Stand
By a MetNews Staff Writer
The Appellate Division of the Los Angeles Superior Court has stripped Southwestern Law School of a $28,341.10 judgment against a former student who failed to repay a loan because, after the defendant’s motion for a transfer from Los Angeles Superior Court to Ventura was granted, it did not put up the required transfer fees and costs.
Judge Alex Ricciardulli wrote the opinion, filed Oct. 25 and released Thursday after the Court of Appeal determined that transfer to itself was unnecessary. The opinion, which reverses a judgment granted by Los Angeles Superior Court Judge Ann H. Park, rejects Southwestern’s contention that defendant Madonna J. Benson, by filing an answer in Los Angeles Superior Court after her motion was granted, waived a transfer.
“When a case is transferred because venue is proper in a different court, the plaintiff is responsible for paying the transfer costs and fees, and the case is subject to dismissal if there is no payment within 30 days of ‘service of notice of the transfer order,’ ” Ricciardulli said, citing Code of Civil Procedure §399(a).
Minute Order Suffices
“We hold the mailing of a minute order to the parties stating a transfer motion was granted is sufficient to provide service of notice, subjecting the action to dismissal due to nonpayment of the costs and fees,” he declared.
A minute order, Ricciardulli noted, has been held to constitute a judgment from which an appeal may be taken. He cited Code of Civil Procedure §1003 which provides that “[e]very direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an order,” saying:
“This means written entry of a court’s ruling into the minutes is an order.”
Filing Answer
Ricciardulli said it makes no difference that Benson filed an answer in Los Angeles Superior Court. He pointed to Code of Civil Procedure § 396b(a) which says that an action filed in the wrong court may be tried there if it has jurisdiction over the subject matter “unless the defendant, at the time he or she answers, demurs, or moves to strike, or, at his or her option, without answering, demurring, or moving to strike and within the time otherwise allowed to respond to the complaint, files with the clerk, a notice of motion for an order transferring the action or proceeding to the proper court….”
The judge wrote:
“Defendant complied with this statute by filing a motion to transfer prior to answering, and there is nothing in the statute indicating the trial court’s order granting the motion is nullified by the subsequent filing of an answer. Section 399, subdivision (a), provides, ‘The cause of action shall not be further prosecuted in any court until those costs and fees are paid’ and subjects the case to dismissal if payment is not made within 30 days after notice has been provided of the transfer order, without regard to whether an answer has been filed. We take the clear language of the statute as specifying that the filing of an answer is inconsequential to the propriety of a dismissal.”
‘No Valid Reason’
Ricciardulli added:
“The trial court provided no valid reason for denying the motion to dismiss and proceeding to trial. The court noted that ‘[d]efendant failed to prepare necessary documents to effectuate the transfer.’ But, the minute order stating the transfer motion was granted was all that was required, and no other ‘documents’ were needed to transfer the case. The court also stated, ‘[N]o transfer fees were paid.’ Defendant could have paid the fees herself, but she was not required to do so.”
He continued:
“Because plaintiff did not seek appellate relief with regard to the court granting defendant’s transfer motion, plaintiff was responsible for paying the costs and fees….Plaintiff was served with the minute order by the clerk on December 7, 2017, and did not pay the costs and fees within 30 days. Under section 399, subdivision (a), the court’s duty was to dismiss the case and not allow it to be further prosecuted. Since the court erred in denying the motion and proceeding with the case, the judgment rendered was invalid and cannot stand.”
The case is Southwestern Law School v. Benson, BV 032895.
Pasadena attorney William Joseph Zeutzius Jr., of Zeutzius & LaBran, represented Southwestern; Benson, whose office is in Moorpark, was in pro per.
Copyright 2019, Metropolitan News Company