Friday, September 18, 2020
Court of Appeal:
Opinion Says Superior Court Had No Jurisdiction to Grant Relief After Complaint Was Voided Because Attorney, Whose Fee-Waiver Application Had Been Denied by a Judge, Failed to Pay for the Filing or Seek a Hearing
By a MetNews Staff Writer
A Beverly Hills attorney who sued over an injury he allegedly sustained while on a ride at the Universal Studios Hollywood theme park was improperly granted relief under Code of Civil Procedure §473 after his complaint was voided based on non payment of the filing fee, the Court of Appeal for this district has held, affirming a subsequent dismissal of the action based on the court having lacked jurisdiction when it afforded relief.
Justice Carl H. Moor of Div. Five wrote the opinion, which was filed Wednesday and not certified for publication. It affirms a judgment by Los Angeles Superior Court Judge Lia Martin.
The plaintiff is Tristram Buckley, who alleged various causes of action based on injuries he said he incurred while on the Harry Potter and the Forbidden Journey ride, suing NBC Universal, Inc., dba Universal Studios.
He filed his action on May 11, 2018, and at the same time submitted a form requesting a fee waiver. Los Angeles Superior Court Judge Jon Takasugi three days later denied it, writing on the waiver form: “PLEASE PROVIDE THE COURT WITH YOUR MEANS OF SUPPORT.”
Printed language on the form warns that within 10 days of mailing by the clerk, the applicant must either pay the fees or request a hearing. Buckley did neither.
On the following June 4, the Clerk’s Office sent a notice that the complaint was voided pursuant to Government Code §68634(g).
Buckley sought relief under §473, which then-Superior Court Judge Rita Miller (now a private judge) on July 31 granted on an ex parte basis.
NBC Universal filed a demurrer, arguing that the Superior Court had no jurisdiction to act on Martin’s motion under §473 once his complaint had been voided. Martin agreed with it, sustaining the demurrer without leave to amend on May 31, 2019.
“Buckley contends the trial court had jurisdiction to grant his motion for relief to reinstate the complaint under Code of Civil Procedure section 473. This is incorrect.
“If an application for a fee waiver is denied, the applicant must pay the filing fees, unless the applicant submits a new application or requests a hearing. If the applicant does not pay on time, the clerk must void the papers that were filed without payment….
“Code of Civil Procedure section 473 cannot provide relief for errors that are jurisdictional, such as failing to timely pay filing fees.”
Moor also observed that “Buckley has not shown that the operative, amended complaint stated a viable cause of action or could be amended to state a cause of action” and that “[f]or this reason alone, the judgment must be affirmed.”
The case is Buckley v. NBC Universal, B299646.
Buckley was in pro per. Paul K. Schrieffer and Hee Jae J. Yoon represented NBC Universal.
Wednesday’s opinion came just two weeks after the Court of Appeal for this district handed down a decision in another case involving Buckley. There, Los Angeles Superior Court Judge Timothy P. Dillon, sitting on assignment to Div. Seven, wrote that Los Angeles Superior Court Judge Holly E. Kendig properly set aside a default and an $8.2 million default judgment obtained by Buckley in an action against a former client, Russian singer Lena Katina.
Dillon said that Buckley knew Katina was represented by counsel, Mark L. Levinson, and breached an ethical duty by failing to notify opposing counsel of the entry of a default and of the subsequent default judgment.
Buckley alleged that Katina had failed to pay him, as her manager, his fair share of her earnings.
A status conference is scheduled in the Superior Court for Oct. 7.
State Bar Court Judge Yvette D. Roland on Oct. 16, 2018, recommended that Buckley be suspended from law practice for two years, with the suspension stayed, with a two-year probationary period and two months of actual suspension. The lawyer was determined to have violated a court order, filed pleadings for an improper purpose, and failed to report to the State Bar that he had been ordered to pay a $4,110 sanction.
He appealed to the Review Department; that appeal was dismissed when he subsequently moved to reopen proceedings in the Hearing Department; Roland denied that motion on Aug. 27; she noted:
“If Respondent wants to seek review following this court’s ruling on the motion to reopen, Respondent must file another request for review.”
In a separate matter, it is alleged that in 2017 and 2018, Buckley repeatedly withdrew client trust account funds and used them for personal purposes. That matter is pending.
The $4,110 sanction was imposed on Nov. 10, 2016 by Los Angeles Superior Court Judge Barbara M. Scheper. However, her order was vacated on Dec. 3, 2019 by Los Angeles Superior Court Judge Holly J. Fujie in light of intervening case law.
All of the misconduct found by the State Bar Court took place in a case that was brought against Buckley by auto designer Claudio Zampolli, whom Buckley had represented in a 1999 defamation suit against then “Tonight Show” host Jay Leno who, at a public event, loudly denounced the plaintiff as a “crook.” Summary judgment was granted in favor of Leno on Sept. 1, 2000 by then-Los Angeles Superior Court Judge Cesar C. Sarmiento (now a private judge), and at that point, Zampolli dropped Buckley as his lawyer.
As summarized by Fujie on Sept. 10, 2019, in denying Buckley’s motion for judgment on the pleadings in Zampolli’s action against him:
“Plaintiffs complaint arises from Defendant allegedly harassing, stalking, making false statements, and hitting Plaintiff with a camera. Plaintiff filed a complaint against Defendant alleging causes of action for: (1) assault and battery; (2) intentional infliction of emotional distress: (3) slander per se; and (4) elder abuse….In connection with his third cause of action, Plaintiff alleges that Defendant yelled in front of numerous witnesses at an exotic car show in Monterey, California that Plaintiff stole Defendant’s Maserati Mistral.”
Buckley is suing Zampolli for libel, assault, battery, invasion of privacy, public disclosure of private facts, and intentional infliction of emotional distress.
A jury trial is set for Nov. 30 though it appears doubtful that any jury trials in civil cases will take place this year in light of the pandemic.
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