Southwestern Law School v. Benson ( 2019 )

Filed 10/25/19
CERTIFIED FOR PUBLICATION
APPELLATE DIVISION OF THE SUPERIOR COURT
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
SOUTHWESTERN LAW SCHOOL, ) No. BV 032895
)
Plaintiff and Respondent, ) Norwalk Trial Court
)
v. ) No. 17NWLC00433
)
MADONNA BENSON, )
)
Defendant and Appellant. ) OPINION
)
APPEAL from a judgment of the Superior Court of Los Angeles County, Ann H. Park,
Judge. Judgment Reversed.
William Joseph Zeutzius, Jr., Esq. for Plaintiff and Respondent Southwestern Law
School, fka Southwestern University School of Law.
Madonna Benson, in pro. per., for Defendant and Appellant.
* * *
1
INTRODUCTION
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.” (Code Civ. Proc., § 399,
subd. (a).)1 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.
In the present case, the trial court granted defendant and appellant Madonna Benson’s
motion to transfer from Los Angeles to Ventura County in the action for failure to repay student
loans brought by plaintiff and respondent Southwestern Law School, fka Southwestern
University School of Law. Although served with a minute order indicating the motion was
granted, plaintiff did not pay the costs and fees within 30 days, and the case remained in
Los Angeles. Nonetheless, defendant’s motion to dismiss was denied, the matter proceeded to
trial, and judgment was entered against her.
As plaintiff was provided notice the case had been transferred and it did not pay the
costs and fees, the court erred in denying the dismissal motion and proceeding to trial. We
reverse the judgment and remand for the court to dismiss the case.
BACKGROUND
Plaintiff filed a breach of contract action on August 11, 2017, alleging that on
September 3, 2012, defendant executed a promissory note to pay $15,000 plus interest to
plaintiff, and on August 13, 2012, she executed a second promissory note to pay plaintiff
$8,000 plus interest. Defendant defaulted on repaying the notes, and plaintiff sought an award
of $22,529.64 for the amount that remained unpaid, plus interest, costs of the suit and
attorney’s fees under the terms of the notes.
On October 12, 2017, defendant filed a motion to transfer. Defendant asserted
Los Angeles County was not the proper court to adjudicate the matter, because she resided, and
entered into the contract, in Ventura County. The court heard argument on the transfer motion
1
All further statutory references are to the Code of Civil Procedure.
2
on November 9, 2017, and after considering further briefing and argument on December 1,
2017, took the matter under submission.
On December 7, 2017, the court issued a minute order ruling on the motion. The court
noted venue for a breach of contract action is proper in the place where the defendant resided at
the commencement of the case, where the contract was entered into, or where the defendant
contracted to perform the obligation. The court determined defendant lived in Ventura County
and electronically executed the promissory notes at her residence, and she agreed to perform
the obligation to pay the notes in Ventura, and hence venue was proper in Ventura.
The minute order concluded, “The Court grants defendant’s motion for change of venue
to Ventura County and orders defendant to prepare any additional orders necessary to effectuate
this transfer. [¶] The clerk is to give notice of this ruling.” In a Certificate of Mailing dated
December 7, 2017, the clerk stated, in relevant part, that the clerk “served the Minute Order
(Ruling on Submitted Matter) of 12/07/2017 upon each party or counsel named below” by
mailing the document to defendant (who was self-represented) and plaintiff’s attorney. No
further order was prepared or served.
On January 10, 2018, defendant filed an answer to the complaint in the Los Angeles
court. Defendant generally denied the allegations, and asserted several affirmative defenses,
including running of the statute of limitations and “waiver and estoppel.” On March 15, 2018,
plaintiff mailed to defendant a notice that a court trial would commence on August 13, 2018 in
Department B of the Norwalk Courthouse in Los Angeles.
Defendant attempted to file a motion to dismiss pursuant to section 399, subdivision (a),
on July 19, 2018, but the court rejected the filing because the credit card used for paying the
filing fee was declined. However, it appears plaintiff was served with a copy of the dismissal
motion, as on July 27, 2018, it filed an opposition to it. Plaintiff did not deny that the costs and
fees remained unpaid, but it maintained the motion to dismiss should be denied because, inter
alia, by filing an answer in Los Angeles, defendant “waived her choice of changing venue to
Ventura County.”
The case was called for trial in Norwalk, and defendant orally moved to dismiss the
action under section 399, subdivision (a). The court noted, “[d]efendant failed to prepare
3
necessary documents to effectuate the transfer. Also, no transfer fees were paid,” and the case
proceeded to trial.2
After considering testimony and documentary exhibits, the court rendered judgment in
plaintiff’s favor. The court awarded plaintiff the principal amount of $22,529.64, $2,816.46 in
interest, $2,500 attorney’s fees, and $95 in costs, for a total award of $28,341.10. Defendant
filed a timely notice of appeal from the judgment.
DISCUSSION
The issues on appeal pertain to statutory interpretation of section 399 and related transfer
statutes. We therefore exercise de novo review. (Ceja v. Rudolph & Sletten, Inc. (2013) 56
Cal. 4th 1113, 1119; Severson & Werson, P.C. v. Sepehry-Fard (2019) 37 Cal.App.5th 938,
944.)
Statutory Provisions
Section 396b, subdivision (a), provides, in relevant part, “[I]f an action or proceeding is
commenced in a court having jurisdiction of the subject matter thereof, other than the court
designated as the proper court for the trial thereof, under this title, the action may,
notwithstanding, be tried in the court where commenced, 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, together with proof of service, upon the adverse party, of a copy of those papers.
Upon the hearing of the motion the court shall, if it appears that the action or proceeding was
not commenced in the proper court, order the action or proceeding transferred to the proper
court.”3
2
The record does not include a ruling on the motion. Because the case proceeded to trial, we
infer the court denied defendant’s motion to dismiss.
3
Section 396b, subdivision (b), allows a court, at its discretion, to order the payment of
reasonable expenses and attorney’s fees to the prevailing party on a transfer motion.
4
In relevant part, section 397 provides, “The court may, on motion, change the place of
trial in the following cases: [¶] (a) When the court designated in the complaint is not the proper
court. . . .”
Procedures for transferring a matter wherein a transfer motion has been granted are
spelled out in section 399, subdivision (a). This statute provides, in relevant part:
“If an order is made transferring an action or proceeding under any provision of this title,
the clerk shall, after expiration of the time within which a petition for writ of mandate could
have been filed pursuant to Section 400, or if a writ petition is filed after judgment denying the
writ becomes final, and upon payment of the costs and fees, transmit the pleadings and papers
of the action or proceeding, or, if the pleadings are oral, a transcript of the pleadings, to the
clerk of the court to which the action or proceeding is transferred. . . . If the transfer is sought
solely, or is ordered, because the action or proceeding was commenced in a court other than
that designated as proper by this title, those costs and fees, including any expenses and
attorney’s fees awarded to the defendant pursuant to Section 396b, shall be paid by the plaintiff
before the transfer is made. . . . The cause of action shall not be further prosecuted in any court
until those costs and fees are paid. If those costs and fees are not paid within 30 days after
service of notice of the transfer order, . . . the court on a duly noticed motion by any party may
dismiss the action without prejudice to the cause on the condition that no other action on the
cause may be commenced in another court before satisfaction of the court’s order for costs and
fees. . . .”4
Construction
In construing a statute, if the statutory language is clear and unambiguous, we determine
this is what was intended by the Legislature, and apply the language as written without
resorting to extrinsic indicia of legislative intent. (See City of Montebello v. Vasquez (2016) 1
Cal.5th 409, 419; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 61
[“Where . . . legislative intent is expressed in unambiguous terms, we must treat the statutory
language as conclusive”].) We also consider the structure of the statute and the
4
For a case involving a complaint alleging damages over $10,000 and up to $25,000, the
transfer fee is $50, and an additional $370 must be paid for filing in the court to which the case is
transferred. (Gov. Code, §§ 70613, subd. (a), 70602.5, subd. (b), 70618.)
5
interrelationship of its parts in ascertaining its intent. (See Robert L. v. Superior Court (2003)
30 Cal. 4th 894, 903 [“‘Statutory language should not be interpreted in isolation, but must be
construed in the context of the entire statute of which it is a part, in order to achieve harmony
among the parts’”].)
Defendant moved to transfer the case on the ground that venue for the breach of contract
action was proper only in Ventura, and hence that Los Angeles was not the proper court under
section 397, subdivision (a). The court on December 7, 2017, conducted a hearing and stated in
its minute order that the transfer motion was granted (see § 396b, subd. (a)), and the clerk in a
“Certificate of Mailing” indicated it “served the Minute Order (Ruling on Submitted Matter) of
12/07/2017 upon each party.” The transfer costs and fees were not paid, and defendant moved
to dismiss the case.5
The critical inquiry is thus whether the minute order indicating the transfer motion was
granted amounted to “an order . . . transferring the action or proceeding.”
The answer was provided over 60 years ago by the Court of Appeal in Western
Greyhound Lines v. Superior Court of Los Angeles County (1958) 165 Cal. App. 2d 216
(Western Greyhound), which interpreted a prior version of the transfer provisions. In that case,
a Los Angeles County court issued a minute order stating, in one column, “Motion of defendant
[¶] Pacific Greyhound Lines, a [¶] corporation, for change [¶] of venue to City and [¶] County
of San Francisco,” and in a second column, “Motion Granted.” The Court of Appeal noted,
“No other order was made.” (Id. at p. 217.)
Transfer costs and fees were not paid by the plaintiff, but the defendant’s motion to
dismiss was denied, and the plaintiff sought writ relief. Under the version of the law in effect at
the time, as now, a case was required to be transferred when “an order is made transferring an
action” upon payment of transfer costs and fees (former § 399). An action was subject to being
dismissed when the costs and fees “have not been so paid for one year after the entry of the
5
The statute states that, if “costs and fees are not paid within 30 days after service of notice of
the transfer order . . . , the court on a duly noticed motion by any party may dismiss the action . . . .”
(§ 399, subd. (a).) But, although defendant made an oral motion to dismiss, plaintiff received a copy of
her written motion and filed a written opposition. Plaintiff was therefore not prejudiced by defendant’s
failure to proceed by way of a “duly noticed” dismissal motion.
6
order for transfer” (former § 581b). The question was whether the minute order constituted the
transfer order referenced in the statute. Western Greyhound found the minute order indicating
the transfer motion was granted was sufficient, noting, “Did the minute order . . . transfer the
action? We have no doubt that it did.” (Western Greyhound, supra, 165 Cal.App.2d at p. 218.)
The Court of Appeal relied on the fact that the minute order was a final judgment from
which an appeal could have been taken, and that the order was sufficiently clear as to indicate
the action being taken by the court. (Id. at pp. 218-219.) It also noted prior case law had
determined a “Memorandum re Ruling on Motion for Change of Venue,” which was served on
the parties along with a minute order stating, “The motions of . . . for Change of Venue to
Santa Clara County are granted,” constituted an “order . . . transferring an action.” (Id. at
p. 219, citing Maxwell v. Perkins (1953) 116 Cal. App. 2d 752.) Although the statutes have
changed, the holding in Western Greyhound remains on point, and we are required to follow the
holding of the Court of Appeal. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal. 2d 450, 456.)
Section 1003 states, as it did when Western Greyhound was decided, “Every direction of
a court or judge, made or entered in writing, and not included in a judgment, is denominated an
order.” This means written entry of a court’s ruling into the minutes is an order. Also, the
general rule is that “when a court enters a minute order which does not call for the preparation
and filing of a formal order, the minute order is final and all legal consequences ensue
therefrom. [Citations.]” (County of Nevada v. Superior Court (1986) 183 Cal. App. 3d 806,
808.)6 “The act of instructing the clerk to enter the order in the minutes, whether in chambers
or on the bench, followed by entry in the minutes is the equivalent of signing a formal order
and filing it with the clerk.” (Simmons v. Superior Court (1959) 52 Cal. 2d 373, 379; accord,
Price v. Superior Court (1986) 186 Cal. App. 3d 156, 171.)
The leading practical treatise notes: “Formal rulings generally not required: Except for
appointment of referees [citation], there is no requirement that a court make a formal, written
6
The trial court, in granting the transfer motion, ordered “defendant to prepare any additional
orders necessary to effectuate this transfer,” but this notation did not explicitly command defendant to
prepare an order. As the minute order would have been sufficient to transfer the case (upon payment of
the transfer costs and fees), there were no “additional orders necessary to effectuate this transfer.”
7
ruling in a law and motion matter. Oral on-the-record rulings suffice to provide proper
appellate review. [See Biljac Assocs. v. First Interstate Bank of Oregon, N.A. (1990) 218
[Cal.App.3d] 1410, 1419 . . . (disapproved on other grounds in Reid v. Google, Inc. (2010) 50
Cal. 4th 512, 532 . . . , fn. 8)].” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before
Trial (The Rutter Group 2019) ¶ 9:180, p. 9(I)-134 to 9(I)-135.)
Section 581b was repealed in 1974. (See Stats. 1974, ch. 1369, p. 2967, § 5.) The bar to
prosecution and dismissal provisions for a plaintiff’s failure to pay transfer costs were inserted
into the fifth through seventh sentences of what is presently section 399, subdivision (a). (See
Stats. 1974, ch. 1369, p. 2965, § 3.) The clock subjecting the case to dismissal changed from
starting when the costs and fees “have not been so paid for one year after entry of the order for
transfer” (former § 581b), to beginning when payment was not made “within 30 days after
service of notice of the transfer order” (§ 399, subd. (a)). But, the beginning portion of
section 399 remained virtually the same after the amendment. Prior to 1974, the first part
began, “When an order is made transferring an action or proceeding under any of the
provisions of this title,” transfer occurs after payment of the transfer costs and fees. (See Stats.
1974, ch. 1369, p. 2965, § 3.) Presently, section 399, subdivision (a), provides, “If an order is
made transferring an action or proceeding under any provision of this title,” the case is
transferred after the costs and fees are paid.
We presume the Legislature, when the provisions were amended in 1974, was aware it
had been held that entry of a minute order granting a transfer motion was sufficient to constitute
“an order . . . transferring an action or proceeding” under section 399, and intended that the
courts’ construction be carried over to the new law. (See City and County of San Francisco v.
Strahlendorf (1992) 7 Cal. App. 4th 1911, 1915, 817 [“Generally, we presume that the
Legislature is aware of appellate court decisions”]; Marina Point, Ltd. v. Wolfson (1982) 30
Cal. 3d 721, 734 [“[W]hen the Legislature amends a statute without altering portions of the
provision that have previously been judicially construed, the Legislature is presumed to have
been aware of and to have acquiesced in the previous judicial construction”].) The Legislature
therefore intended that, when a minute order stating a motion to transfer has been granted is
8
mailed to the parties, “service of notice of the transfer order” has been effectuated, and if the
costs and fees remain unpaid, the case is subject to dismissal.
We are unpersuaded by plaintiff’s argument that defendant’s filing of her answer in
Los Angeles allowed the case to proceed when it was called for trial. Section 396b,
subdivision (a), states a case may be tried in a court other than the proper court for trial, so long
as the court has jurisdiction, “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 . . . .” 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.
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. (See § 399, subd. (a) [“If those costs and fees have not been paid by the
plaintiff within five days after service of notice of the transfer order,” any party interested in the
action “may pay those costs and fees”].) 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. (Ibid. [“If the transfer is . . . ordered, because the action or proceeding was
commenced in a court other than that designated as proper by this title, those costs and fees . . .
shall be paid by the plaintiff before the transfer is made”].) Plaintiff was served with the
minute order by the clerk on December 7, 2017, and did not pay the costs and fees within
9
30 days. Under section 399, subdivision (a), the court’s duty was to dismiss the case and not
allow it to be further prosecuted.7 Since the court erred in denying the motion and proceeding
with the case, the judgment rendered was invalid and cannot stand.8
DISPOSITION
The judgment is reversed and the case is remanded for further proceedings consistent
with this opinion. Defendant to recover costs on appeal.
_________________________
Ricciardulli, J.
We concur:
_________________________ _________________________
Kumar, Acting P. J. Richardson, J.
7
For benefit of the trial court on remand, we note the dismissal must be entered “without
prejudice to the cause on the condition that no other action on the cause may be commenced in another
court before satisfaction of the court’s order for costs and fees.” (§ 399, subd. (a).)
8
As the matters sought to be added to the record by way of defendant’s September 4, 2019
motion to augment the record and September 4 and 12, 2019 motions to correct the record, and
plaintiff’s September 9, 2019 motion to augment, are unnecessary to the disposition of the appeal, the
motions are denied as moot.
10