Friday, September 18, 2026
Page 3
Judge Erred in Dismissing Defendants Based On No Complaint Being on File—C.A.
Plaintiff Had Served Pleading and Attempted to File It, but It Was Rejected By Clerk’s Office Seven Weeks Later Based on Technical Defects
By a MetNews Staff Writer
The Court of Appeal has held that an Orange Superior Court judge abused his discretion in dismissing four defendants from a lawsuit based on a first amended complaint not being on file when the plaintiff had timely transmitted the pleading to the Clerk’s Office which bounced it seven weeks later based on technical defects including the attorney’s telephone number not matching the one previously provided.
Wednesday’s decision marked the third time within a one-month period that a decision was reversed based on papers a party attempted to file being rejected.
The unpublished opinion by Acting Presiding Justice Thomas A. Delaney directs that the orders by Judge Gassia Apkarian dismissing the four defendants in an action for wrongful foreclosure brought by Helen M. Horwich, be vacated.
Horwich’s lawyer served the first amended complaint on the defendants; they demurrered to it; a hearing on the demurrers was taken off calendar after it was determined that the pleading was not on file; Apkarian dismissed the action as to the four defendants pursuant to their ex parte motions a few days later.
Abuse of Discretion
Delaney wrote:
“Although there was no amended complaint on file at the time it considered the requests, the court had before it a variety of information about what transpired between the attempted filing of the first amended complaint by Horwich’s then-attorney and the dismissal hearings, and the court was aware Horwich was repeatedly attempting to rectify the technical issues once they were brought to her attention in the days before the dismissals were granted. Based on the collective circumstances known to the court, its decision to dismiss the action with respect to respondents was an abuse of discretion.”
The jurist added:
“California law favors hearings and trial on the merits, with the corollary of this general policy being that ‘the interests of justice weigh heavily against disposing of litigation on procedural grounds.’…Although dismissal statutes represent a recognition that there are certain circumstances in which countervailing policies may outweigh that general policy…, this case does not present such circumstances.”
Earlier Decisions
The Fifth District Court of Appeal on Aug. 24 denied a motion to dismiss an appeal as untimely, holding that the Stanislaus Superior Court Clerk’s Office erred in rejecting a a notice of appeal on the ground that, under a local rule, such a document may not be electronically filed. On Sept. 14, Div. Five of the First District Court of Appeal declared that the Marin Superior Court Clerk’s Office erred in declining to file a notice of appeal because a copy of an underlying administrative decision was not attached—despite the lack of a rule requiring such—and a judge wrongfully declared a corrected notice to be untimely.
Delaney faulted Apkarian for his orders of dismissal without considering whether the Clerk’s Office erred in rejecting the complaint based on the telephone number of the lawyer not marching wat was in the record and the pleading, in light of the voluminous exhibits, being presented as “Plaintiffs Verified First Amended Complaint Volume I” and “Plaintiffs Verified Amended Complaint Volume II.”
The case is Horwich v. Mortgage Electronic Registration Systems, Inc., G065220.
In a second appeal decided on Wednesday involving Horwich, the Fourth District’s Div. Two held, in an opinio by Delaney, that her appeal from a default judgment in an unlawful detainer case was untimely, and must be dismissed, and that in her appeal from a denial of a motion to set aside the default and default judgment, se failed to show that the judgment is void.
That case is Bire II, LLC v. Horwich, G065224.
Copyright 2026, Metropolitan News Company