Gerber v. Guirao

Filed 11/28/05 Gerber v. Guirao CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

MARY ELLEN GERBER, Plaintiff and Appellant, v. JEAN MICHEL GUIRAO et al., Defendants and Respondents.

B170484 (Los Angeles County Super. Ct. No. BC277009)

APPEAL from orders of the Superior Court of Los Angeles County,

Irving S. Feffer, Judge. Dismissed in part, affirmed in part and reversed in part with directions.

Robert S. Gerstein; and William I. Hochberg for Plaintiff and Appellant.

Hoffman & Associates and Nathan B. Hoffman for Defendant and Respondent Jean Michel Guirao.

Gordon & Rees, Roger M. Mansukhani, Christopher B. Cato and Eric M. Volkert for Defendants and Respondents Steve Manus, dba Alfred Publishing and Alfred Publishing.

_________________________

Plaintiff and appellant Mary Ellen Gerber (Gerber) appeals orders dismissing her action against defendants and respondents Alfred Publishing (Alfred) and Steven Manus dba Alfred Publishing (Manus) (collectively, the Alfred defendants) and Jean Michel Guirao (Guirao), and denying her motion to vacate the dismissals.

By way of background, the trial court granted the Alfred defendants’ ex parte application for dismissal after it sustained their demurrer to Gerber’s complaint with leave to amend and Gerber failed to file an amended pleading. In addition, the trial court entertained a purported “joinder” by Guirao in the Alfred defendants’ ex parte application for dismissal and also dismissed the action as to Guirao pursuant to section 581, subdivision (f)(2), despite the fact Guirao already had answered the complaint.

The issues presented include whether fax notification of an ex parte application constitutes proper notification of the hearing in accordance with California Rules of Court, rule 379, in the absence of a prior agreement between the parties for service by fax.^[1]

Section 1013, subdivision (e) and rule 2008(b), which relate to service of papers by fax, provide that service by fax is permitted only where the parties agree and a written confirmation of the agreement is made. In addition, these provisions specify that any period of notice and any right or duty to do any act or to make any response within any period or on a date certain after the service of the document is extended by two court days after service of facsimile transmission. In contrast, rule 379 requires only that parties be notified of the ex parte application by 10:00 a.m. the court day before the hearing (absent a showing of exceptional circumstances). Rule 379 does not require an agreement between the parties concerning fax notification as a condition precedent to permitting notification by fax of an ex parte application. We conclude Gerber was duly notified by fax of the Alfred defendants’ ex parte application for dismissal and we affirm the order denying Gerber’s motion to vacate that dismissal.

However, the dismissal order obtained by Guirao is void. Irrespective of the successful demurrer of the Alfred defendants, as between Gerber and Guirao, the case was already at issue, as Guirao already had answered the complaint. The trial court had no authority under section 581, subdivision (f)(2) to enter a wholesale dismissal of the entire action based on Gerber’s failure to amend as to the Alfred defendants. Therefore, as to Guirao, the order denying Gerber’s motion to vacate the dismissal is reversed with directions.

FACTUAL AND PROCEDURAL BACKGROUND

On July 3, 2002, Gerber filed a verified complaint against various defendants, including Guirao and the Alfred defendants, setting forth 10 causes of action. Guirao was named as defendant in all 10 causes of action. The Alfred defendants were only named in two of the causes of action, namely, conspiracy to commit fraud (6th cause of action) and imposition of constructive trust (10th cause of action).^[2]

1. Allegations of the complaint.

The complaint alleged Gerber and Guirao entered into an oral agreement to form a partnership to produce musical stage shows. The partners agreed they would contribute to the initial funding of the partnership, Guirao would match Gerber’s contributions, partnership funds would be used only to pay partnership expenses, there were to be no draws or salaries while the business was operating, and the first 10 percent of the profits would be contributed to the Mary-Ellen Gerber Foundation, with the other 90 percent going in equal shares to the two partners.

The complaint alleged Gerber contributed the initial deposit of $10,000 into the bank account and proceeded to contribute about $466,771 between May 2000 and May 2002. However, Guirao never intended the carry out the promises he made, failed to make matching contributions or to consult with Gerber before making financial commitments on behalf of the partnership, and used partnership funds for his personal expenses and those of his friends and relatives. Additionally, other defendants conspired with Guirao to defraud Gerber by a scheme in which partnership funds were paid to other defendants and invoices submitted to make it appear the funds were used for partnership purposes.

2. Responsive pleadings and proceedings thereon.

On August 16, 2002, Guirao filed a verified answer to the complaint. There is no indication he served the answer on any of the parties.

The Alfred defendants demurred to both causes of action asserted against them.

On September 6, 2002, the trial court sustained the Alfred defendants’ demurrer with 30 days leave to amend. Gerber failed to file an amended complaint.

3. The Alfred defendants’ ex parte application for dismissal and Guirao’s “joinder” therein; trial court dismisses the entire action.

On October 31, 2002, the Alfred defendants filed an ex parte application for an order dismissing them from the action. No proof of service was attached to the application, but it was accompanied by a declaration stating that counsel for the Alfred defendants had, on October 29, 2002, given Gerber notice by fax that the application for dismissal would be heard on October 31, 2002 at 9:00 a.m.

On October 31, 2002, the date of the hearing on the Alfred defendants’ ex parte application, Guirao, despite the fact he already had answered the complaint, filed a “joinder” in the ex parte application, requesting a dismissal of the action in its entirety on the ground Gerber failed to file an amended complaint within the 30 days allowed by the court when it sustained the Alfred defendants’ demurrer.

Gerber did not receive notice of Guirao’s dismissal request prior to the hearing. The proof of service attached to Guirao’s notice of joinder showed service by United States mail on October 31, 2002, the day of the hearing.^[3]

In addition to sending notice by mail on the day of the hearing, Guirao purportedly notified Gerber of the 9:00 a.m. hearing by a fax transmission to attorney Kayretha Willis’s (Willis) office at 7:55 a.m. that morning, 65 minutes before the hearing. However, the result of the transmission was “NG” rather than “OK,” indicating “poor line condition.”^[4]

No one appeared on Gerber’s behalf at the 9:00 a.m. hearing on October 31, 2002. On that date, the trial court granted the request for dismissal and entered an order dismissing the Alfred defendants from the action with prejudice.

On November 14, 2002, the trial court entered another order on the ex parte application. This order stated: “IT IS ORDERED that the joint ex parte Application is granted and that the entire action is hereby dismissed with prejudice.” (Italics added.) Thus, this second order additionally granted dismissal in favor of Guirao.

4. Gerber’s unsuccessful attempts to set aside the dismissal of the action.

On May 14, 2003, six and one-half months after the October 31, 2002 dismissal of the Alfred defendants, and six months after the November 14, 2002 dismissal of Guirao, Gerber filed a motion to vacate the dismissal of the action. The motion to vacate, pursuant to section 473, asserted the failure to file an amended complaint within the time specified by court after the successful demurrer of the Alfred defendants was due to the mistake, inadvertence, surprise and excusable neglect of Willis, Gerber’s attorney. Willis’s supporting affidavit of fault asserted she failed to file the amended complaint within the time allowed for a number of reasons, including settlement discussions with Guirao’s attorney.

Thereafter, Gerber supplemented her motion to vacate with an additional memorandum of points and authorities, asserting the ex parte application was brought without proper notice and that Guirao’s joinder in the ex parte application was improper. In addition to a request for relief under section 473, the supplemental papers also invoked the trial court’s inherent equitable power to vacate the orders of dismissal.

On August 1, 2003, the trial court denied the motion to set aside the dismissals. Thereafter, the trial court denied Gerber’s motion for reconsideration.^[5]

Gerber appealed.

CONTENTIONS

Gerber contends: the dismissal orders are void for lack of notice and therefore must be set aside; the trial court acted beyond its authority in dismissing the entire case based on Gerber’s failure to amend in response to the Alfred defendants’ demurrer; and other defects require that the orders dismissing the case be set aside.

DISCUSSION

1. Appealability.

On September 25, 2003, Gerber filed notice of appeal from the dismissal orders and from the denial of the motion to vacate the dismissal.

The dismissal orders were entered October 31, 2002 and November 14, 2002. The notice of appeal, because it was filed more than 180 days after the orders of dismissal, is untimely as to those orders, even under the most generous application of rule 2(a).^[6] Therefore, Gerber has no direct appeal from the orders of dismissal. Insofar as Gerber is appealing the October 31, 2002 and November 14, 2002 dismissal orders, the appeal must be dismissed.

However, the notice of appeal filed September 25, 2003 also specified the August 1, 2003 order denying Gerber’s motion pursuant to section 473 to vacate the orders of dismissal. The notice of appeal is timely as to the August 1, 2003 order, and said order is appealable as an order after judgment. (§ 904.1, subd. (a)(2); 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal § 154, p. 218.)

We now turn to the merits of the appeal.

2. Trial court properly refused to vacate the dismissal order obtained by the Alfred defendants; Gerber was duly notified of their ex parte application re dismissal and her motion to vacate the dismissal was untimely.

a. Dismissal following expiration of time to amend following sustaining of demurrer may be requested on an ex parte basis.

Ex parte applications require “an affirmative factual showing . . . of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte.” (Rule 379(g).) Such a basis is present here. Rule 325(f) provides a motion to dismiss after expiration of the time to amend following the sustaining of a demurrer may be made by ex parte application.^[7]

b. The Alfred defendants duly complied with ex parte notification requirements; no prohibition on notification by fax.

A party seeking an ex parte order “must notify all parties no later than 10:00 a.m. the court day before the ex parte appearance, absent a showing of exceptional circumstances that justify a shorter time for notice.” (Rule 379(b).)

The Alfred defendants contend they complied with rule 379, in that at 6:11 p.m. on the evening of October 29, 2002, their counsel faxed a notice to Gerber’s counsel that they would appear ex parte at 9:00 a.m. on October 31, 2002 to request dismissal.

Rule 379 does not specify the form of notification. Case law recognizes that telephonic notification is sufficient. (See, e.g. Datig v. Dove Books, Inc. (1999) 73 Cal.App.4th 964, 977; O’Brien v. Cseh (1983) 148 Cal.App.3d 957.) However, Gerber argues that a review of the relevant statutes and rules, specifically section 1013 and rule 2008, makes it clear that fax transmission is not equally acceptable as a means of notification under rule 379.

Section 1013 states in pertinent part at subdivision (e): “Service by facsimile transfer shall be permitted only where the parties agree and a written confirmation of that agreement is made. . . . The service is complete at the time of transmission, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended, after service by facsimile transmission, by two court days, but the extension shall not apply to extend the time for filing notice of intention to move for new trial, notice of intention to move to vacate judgment pursuant to Section 663a, or notice of appeal.” (Italics added.)

Similarly, rule 2008(b) provides: “Service by facsimile transfer shall be permitted only if the parties agree and a written confirmation of that agreement is made. . . . The service is complete at the time of transmission, but any prescribed period of notice and any right or duty to do any act or make any response within any prescribed period or on a date certain after the service of such document served by facsimile transmission shall be extended by two court days, but such extension shall not apply to extend the time for filing notice of intention to move for new trial. (Italics added.)

Gerber argues: “It is not that section 1013 and Rule 2008 are applicable to Rule 379 notice. Rather, given the purpose of Rule 379 notice – to ensure that parties have a fair opportunity to appear at ex parte hearings to be held within a day of the notice’s transmission – it makes no sense to assert that fax transmissions can be used to give such notice on terms any less stringent than those which apply to faxed service under section 1013 and Rule 2008.” Gerber emphasizes that section 1013 and rule 2008 allow faxed service only by agreement, and further, that these provisions add two court days to respond to a fax transmission. According to Gerber, the addition of two court days to respond “is decisive evidence that fax transmission cannot be regarded as instantaneous notice under California law.” Therefore, Gerber posits that fax transmissions cannot serve as valid notice under rule 379, at least without prior agreement of the parties. The argument is unpersuasive.

Section 1013, subdivision (e) and rule 2008(b) relate to service of papers by fax, and they specify that any period of notice and any right or duty to do any act or to make any response within any period or on a date certain after the service of the document is extended, after service of facsimile transmission, by two court days. In contrast, rule 379 requires only that parties be notified of the ex parte application by 10:00 a.m. the court day before the hearing (absent a showing of exceptional circumstances). Rule 379 does not require an agreement between the parties concerning fax notification as a condition precedent to permitting notification by fax of an ex parte application. We decline to rewrite rule 379 by importing such a requirement into it.

Accordingly, the Alfred defendants complied with the notice requirements of rule 379, in that at 6:11 p.m. on the evening of October 29, 2002, their counsel faxed a notice to Gerber’s counsel that they would appear ex parte at 9:00 a.m. on October 31, 2002 to request dismissal.

c. Gerber’s motion under section 473 for relief from the dismissal was untimely and properly was denied.

On October 31, 2002, the trial court granted the Alfred defendants’ request for dismissal and entered an order dismissing them from the action with prejudice.

Six and one-half months later, on May 14, 2003, Gerber filed a motion to vacate the dismissal of the action. The motion, which was brought under the mandatory relief provision of section 473, subdivision (b), asserted the failure to file an amended complaint within the time specified by court after the successful demurrer of the Alfred defendants was due to the mistake, inadvertence, surprise and excusable neglect of Gerber’s attorney.

An application for mandatory relief under section 473, subdivision (b), must be made “no more than six months after entry of judgment[.]” (§ 473, subd. (b).) The October 31, 2002 order of dismissal signed by a trial court and filed in the action constituted a judgment. (§ 581d.) The May 14, 2003 motion for mandatory relief under section 473, filed six and one-half months after the October 31, 2002 dismissal of the Alfred defendants, was untimely and properly was denied.

Accordingly, we affirm the trial court’s order denying Gerber’s motion to vacate the dismissal as to the Alfred defendants.^[8]

3. Trial court erred in refusing to grant Gerber’s motion to vacate the dismissal order obtained by Guirao; the dismissal was void and should have been vacated upon Gerber’s motion.

a. Relief available from void judgments or orders under section 473 and under court’s inherent power.

Section 473 provides in relevant part at subdivision (d): “The court . . . may, on motion of either party after notice to the other party, set aside any void judgment or order.” (Italics added.)

In addition, courts possess inherent power to set aside void judgments at any time. (Reid v. Balter (1993) 14 Cal.App.4th 1186, 1194.)

A judgment is void on its face “if the defect is apparent upon examination of the record. [Citations.]” (Carlson v. Eassa (1997) 54 Cal.App.4th 684, 696.) It is “ ‘well settled that a judgment or order which is void on its face, and which requires only an inspection of the judgment-roll or record to show its invalidity, may be set aside on motion, at any time after its entry, by the court which rendered the judgment or made the order. [Citations.]’ [Citations.]” (Reid v. Balter, supra, 14 Cal.App.4th at p. 1194.)

b. The dismissal order obtained by Guirao is void on its face because it was completely outside the trial court’s jurisdiction to grant; as between Guirao and Gerber the case was “at issue” and section 581, subdivision (f)(2) was inapplicable.

As indicated, one of the grounds raised by Gerber in her motion to vacate the dismissal was that Guirao’s purported joinder in the Alfred defendants’ ex parte dismissal application was improper. The record on its face supports Gerber’s contention and establishes the trial court was without jurisdiction to grant a dismissal in favor of Guirao pursuant to his purported “joinder” in the ex parte application because Guirao already had answered the complaint. Therefore, as to Guirao, the case was already at issue. Consequently, the dismissal obtained by Guirao is void on its face and should have been vacated upon Gerber’s motion.

To reiterate, on August 16, 2002, Guirao filed a verified answer to Gerber’s verified complaint, in which he responded to all 10 causes of action pled against him. As for the Alfred defendants, they were only named in the sixth and tenth causes of action. On September 6, 2002, the trial court sustained their demurrer with 30 days leave to amend. Upon expiration of the 30-day period, and with no amended complaint forthcoming, the Alfred defendants were entitled to seek a dismissal, provided they gave proper notification to Gerber. (§ 581, subd. (f)(2); rule 325(f).)

However, Guirao, who already had answered the complaint and who had not challenged the sufficiency of the pleading as to him, either by way of demurrer or by way of a motion for judgment on the pleadings (§ 438), had no right to “join” in the Alfred defendants’ request for dismissal. The effect of filing an answer is to put the case “at issue” as to all important matters alleged in the complaint that a defendant does not want to admit. (Weil & Brown, Cal. Practice Guide: Civ. Procedure Before Trial (The Rutter Group 2005) § 6:385, p. 6-76.) Section 590 provides: “An issue of fact arises: [¶] 1. Upon a material allegation in the complaint controverted by the answer . . . .” (§ 590.) Therefore, irrespective of the successful demurrer of the Alfred defendants, as between Gerber and Guirao, the state of the pleadings gave rise to issues of fact.

The trial court’s power to dismiss a complaint where a plaintiff fails to amend within the time allowed is delineated in section 581, subdivision (f)(2), which states: “(f) The court may dismiss the complaint as to that defendant when: [¶] . . . [¶] (2) . . . after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal.” (Italics added.) Here, solely the Alfred defendants brought a demurrer which was sustained with leave to amend, but after Gerber failed to amend within the time allowed, the trial court dismissed the action as to all defendants, including Guirao. The trial court had no authority to enter a wholesale dismissal of the entire action based on Gerber’s failure to amend as to the Alfred defendants.

The law “ ‘seems well settled (and there appears to be no case holding to the contrary) that when a statute authorizes prescribed procedure, and the court acts contrary to the authority thus conferred, it has exceeded its jurisdiction . . . .’ ” (Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 6.) The dismissal as to Guirao pursuant to section 581, subdivision (f)(2) was not merely a mistaken application of the law. Rather, the dismissal was “ ‘completely outside the scope of the court’s jurisdiction to grant . . . .’ ” (Carlson v. Eassa, supra, 54 Cal.App.4th at p. 696.) “ ‘The mere fact that the court has jurisdiction of the subject matter of an action before it does not justify an exercise of a power not authorized by law, or a grant of relief to a party that the law declares shall not be granted.’ [Citation.]” (Ibid.)

Because the dismissal of Guirao pursuant to his purported “joinder” in the Alfred defendants’ request for dismissal under section 581, subdivision (f)(2) is a jurisdictional defect which is apparent upon examination of the record, the dismissal order obtained by Guirao is void and must be vacated.

It is unnecessary to address whether Guirao duly notified Gerber of his purported joinder in the Alfred defendants’ ex parte application, or any other issues.^[9]

DISPOSITION

The direct appeal from the dismissal orders is dismissed as untimely. As for the appeal from the order denying Gerber’s motion to vacate the dismissals, the order is affirmed with respect to the dismissal obtained by the Alfred defendants and is reversed with directions to vacate the dismissal obtained by Guirao. The parties shall bear their respective costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P.J.

We concur:

CROSKEY, J.

KITCHING, J.

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^[1] All rule references are to the California Rules of Court. Also, all statutory references are to the Code of Civil Procedure, unless otherwise specified.

^[2] The complaint pled the following causes of action: (1) rescission and restitution; (2) conversion; (3) fraud – intentional misrepresentation; (4) fraud – concealment of facts; (5) fraud – promise with no intent to perform; (6) conspiracy to commit fraud; (7) breach of contract; (8) breach of fiduciary duty; (9) accounting; and (10) imposition of constructive trust.

^[3] The record reflects the zip code in the mailing address for Gerber’s counsel was incorrect.

^[4] The record reflects there was another fax transmission by Guirao at 7:57 a.m. on the morning of October 31, 2002, which resulted in an “OK.” However, that transmission was to counsel for the Alfred defendants in the 619 area code, not to Gerber’s counsel.

^[5] After “entry of judgment, the superior court [does] not have jurisdiction to entertain or decide a motion for reconsideration. [Citations.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 859, fn. 29; accord APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 182.) Therefore, any claim of error based on the post-dismissal denial of reconsideration is meritless.

^[6] We note that although Guirao’s counsel prepared a notice of entry of judgment and the notice was filed with the court on November 18, 2002, the certificate of mailing is blank as to the date the notice of entry was mailed to the parties. Therefore, it does not appear Guirao’s counsel actually gave notice of entry of judgment to Gerber.

^[7] We are mindful that rule 325 is a rule of court, not a statute. However, Judicial Council rules “have the force of statute to the extent that they are not inconsistent with legislative enactments and constitutional provisions. [Citations.]” (In re Richard S. (1991) 54 Cal.3d 857, 863; accord Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1011.)

^[8] With respect to the dismissal of the Alfred defendants, there is no merit to Gerber’s related contention she is entitled to equitable relief from the dismissal on the ground she was not given notice of the ex parte application until after the hearing. As explained above, the Alfred defendants duly notified Gerber in advance of the ex parte application in accordance with rule 379.

^[9] Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, on which Guirao relies, is totally inapposite. Leader states “plaintiffs’ failure to file an amended complaint within the time specified subjected their entire action to dismissal in the court’s discretion under section 581, subdivision (f)(2).” (Id. at p. 613, italics added.) However, in Leader, all the defendants successfully demurred to the third amended complaint, and plaintiffs did not file a fourth amended complaint within the time allowed by the court. (Id. at pp. 607-608.)