Filed 2/19/20 Video Symphony, LLC v. Hill CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

VIDEO SYMPHONY, LLC,

Plaintiff and Appellant,

v.

MEYGHAN HILL et al.,

Defendants and Respondents.

B298681

(Los Angeles County

Super. Ct. No. EC066501)

APPEAL from a judgment of the Superior Court for Los Angeles County, John J. Kralik, Judge. Affirmed.

Debt Enforcement Law Group and Michael G. Flanagan for Plaintiff and Appellant.

Peiffer Wolf Carr & Kane, Tracey B. Cowan and Adam B. Wolf for Defendant and Respondent Meyghan Hill.

Plaintiff Video Symphony, LLC (Video) appeals from an order entered on April 25, 2019, dismissing its complaint against James Scott. In its briefs on appeal, Video does not address the issues decided by the trial court in that order—in which the court reconsidered its prior ruling granting Video’s motion under Code of Civil Procedure section 473, subdivision (b) to vacate a prior dismissal order—and instead raises issues solely related to the original dismissal order, from which it did not timely appeal. Because Video did not timely appeal from that original dismissal order, the issues it raises regarding the correctness of that order are forfeited. And, because Video does not raise any issues challenging the correctness of the order that is the subject of this appeal, we affirm that order.

BACKGROUND

In March 2016, Video sued Meyghan Hill and James Scott on a retail installment contract; Hill filed a cross-complaint against Video and its attorney based upon their collection practices. Video and Hill subsequently entered into a settlement agreement under which Video agreed to “dismiss [forthwith all] causes of action, with prejudice, in the aforementioned legal action, entitled: Video Symphony, LLC, vs. Meyghan Hill, et al., bearing Case No. EC066501.” Counsel for Video and Hill appeared in the trial court on March 14, 2018 to inform the court of the settlement. The court scheduled a hearing on an order to show cause (OSC) re status of the settlement and an OSC re dismissal for April 17, 2018.

Before the hearing on the OSCs took place, a dispute arose over whether the settlement agreement required Video to dismiss the entire action against both Hill and Scott (as Hill’s counsel asserted), or only its claims against Hill (as Video’s counsel asserted). The dispute was not resolved by the time of the OSC hearing.

On April 17, 2018, the day of the OSC hearing, Video’s counsel was scheduled for two non-jury trials in Chatsworth, so he arranged for an appearance attorney to appear on behalf of Video; the appearance attorney had been instructed to ask for a continuance of the hearing if any complications arose. Counsel for Hill attended the hearing to ask for enforcement of the settlement agreement. In a minute order from that hearing, the trial court (Judge Benny C. Osorio, presiding) stated that it reviewed the settlement agreement at the request of Hill’s counsel. Based on its review, the court ordered the entire action and all parties dismissed with prejudice. (We refer to this order as the April 2018 dismissal order.)

Hill’s counsel served Video with notice of the April 2018 dismissal order on April 25, 2018. Video did not seek reconsideration under Code of Civil Procedure section 1008, nor did it timely file a notice of appeal from the April 2018 dismissal order.

Instead, on October 5, 2018, Video filed a motion to set aside the dismissal as to Scott under section 473, subdivision (b) (section 473(b)) on the ground that that the dismissal was entered due to the mistake, surprise, inadvertence, and excusable neglect of Video’s counsel. The motion was supported by the declaration of Video’s counsel, Michael Flanagan, who identified the following purported mistakes: (1) he inadvertently double-booked two non-jury trials on the same day as the April 17, 2018 hearing on the OSC; (2) he neglected to arrange for an appearance attorney until the last minute, and then mistakenly did not adequately prepare the appearance attorney; (3) he mistakenly thought that Hill’s counsel would not appear at the hearing and assert that the settlement agreement required Video to dismiss the entire complaint against both Hill and Scott; and (4) he mistakenly thought the trial court would simply continue the matter.

The trial court (Judge John J. Kralik, presiding) granted Video’s motion on November 16, 2018. The minute order from the hearing is not part of the record on appeal, although Video submitted the tentative order in its motion to augment the record; we assume the trial court adopted the tentative as its final order. In the tentative order, the court noted that Video’s motion was not opposed. After reciting the history of the case and summarizing Flanagan’s declaration in support of the motion, the court concluded that “Mr. Flanagan has shown that the dismissal entered against James Scott was as a result of his mistake, inadvertence, surprise, and/or neglect by failing to attend the OSC hearing and failing to properly prepare the appearance counsel for the hearing.” Therefore, the court granted the motion to vacate the dismissal as to Scott on April 17, 2018, ordered Video to provide notice of its order and to re-serve the summons and complaint on Scott promptly, and set a case management conference for February 4, 2019.

Video did not serve the motion to vacate the dismissal on Hill, and had purported to serve Scott, but the address of service was the home of Scott’s friend rather than Scott’s residence; Scott did not receive the motion until January 31, 2019—more than two months after the hearing—when his friend forwarded it to him. Scott informed Hill’s attorney about the motion on February 1, 2019. The attorney consulted the online docket for the case and discovered that the motion had been granted and that a case management conference was scheduled in a few days; he rearranged his schedule so he could attend the conference.

Because there is no reporter’s transcript (even though a court reporter was present), we do not know exactly what transpired during the conference held on February 4, 2019. However, the court issued a minute order (noting a time of 8:30 a.m.) indicating that Hill’s attorney appeared on her behalf. The minute order states that the court reviewed the court file and found there was no proof of service of the summons and complaint as to Scott. The court continued the case management conference and issued an OSC “re Dismissal for Failure to Serve the Complaint within 3 years,” to be heard on April 25, 2019.

Later that day, at 11:16 a.m., the court issued a second minute order. That order stated: “After review of the file, the Court has determined to issue another order to show cause to Plaintiff regarding dismissal of the action. Specifically, the Court is concerned that its order of November 16, 2018, setting aside the dismissal of this case as to James Scott, was erroneous. The previous dismissal, of April 17, 2018, does not appear to result from the excusable neglect of counsel, but rather results from the decision of the Court (Osorio, J.), after review of the settlement agreement of the parties. Therefore, the Court requests that Plaintiff or its counsel also show cause as to why the matter should not be fully and finally dismissed as the result of Judge Osorio’s order of April 17, 2018.” The court ordered this second OSC to be heard with the other OSC.

Hill filed a response to the second OSC re dismissal. She argued that the court was correct that its November 2018 order vacating the April 2018 dismissal order was erroneous because the April 2018 dismissal order was the result of the court’s interpretation of the settlement agreement and not due to Video’s counsel Flanagan’s mistake, inadvertence, surprise, or excusable neglect. She noted that Video did not give any notice of the motion to Hill, despite Hill’s clearly expressed interest in the claims against Scott being dismissed, nor did Video properly serve Scott with the motion. She also asserted that Flanagan misrepresented several facts in the motion, including that he was unaware that Hill’s counsel would appear at the April 2018 hearing to ask the court to interpret and enforce the settlement agreement by dismissing the entire action.

Hill’s response was supported by the declaration of her attorney, who described the dispute and circumstances leading up to the April 2018 OSC hearing, and attached email correspondence between himself and Flanagan corroborating his account. Hill’s counsel also attached a declaration from Scott in which Scott declared that Video’s motion to vacate the dismissal had been sent to a house where a friend of his lived, and was not forwarded to him until months after the motion was heard. Scott also declared that he never was served with the complaint at his residence. He stated that he had reviewed the proofs of service showing Video’s attempts at service, and the addresses on those proofs are addresses of his friends or places he previously had resided; none was the address of his residence at the time of purported service.

The hearing on the two OSCs was held on April 25, 2019. After hearing the arguments of counsel for Video and Hill, the court issued a minute order stating: “The Court finds its previous ruling on 11/16/18 was incorrect and that plaintiff has failed to serve defendant James Scott within the required time period. [¶] The Court orders the Complaint filed by VIDEO SYMPHONY, LLC on 03/23/2017[ ] dismissed with prejudice.”

DISCUSSION

Video filed its notice of appeal on June 18, 2019. The notice states: “Plaintiff Video Symphony, LLC hereby gives notice of appeal of the dismissal of the above-captioned action against James Scott.” It lists in the caption three orders: the April 2018 dismissal order, the November 2018 order granting the motion to set aside the dismissal, and the April 25, 2019 order setting aside the November 2018 order and dismissing the complaint.

The only order for which the notice of appeal is timely is the April 25, 2019 order from the hearing on the trial court’s two OSCs issued on February 4, 2019. (Cal. Rules of Court, rule 8.104(a)(1)(C).) Those OSCs raised two issues: (1) whether the case against Scott should be dismissed for failure to serve the complaint on him within three years; and (2) whether the “order of November 16, 2018, setting aside the dismissal of this case as to James Scott, was erroneous” because the April 2018 dismissal order did not result from the excusable neglect of Video’s counsel.

In its appellant’s opening brief, Video does not discuss either of these issues. Instead, its entire brief is focused on arguments related to why the April 2018 dismissal order was erroneous. Even after Hill pointed out in her respondent’s brief that Video’s arguments regarding the April 2018 dismissal order were not proper subjects of this appeal, Video contended in its appellant’s reply brief that “[t]he crux of this appeal is clearly presented as the original April 2018 dismissal of James Scott, and the trial court’s misinterpretation of the Settlement Agreement that spawned the dismissal. The dismissal was vacated from November 2018 to April 2019. It did not become final until the trial court’s order in April 2019. The April 2019 order derives its basis and meaning solely from the April 2018 order of dismissal, which is the basis of the appeal.”

Video is mistaken on the facts and the law.

The fact is that the April 25, 2019 order does not “derive[] its basis and meaning solely from the April 2018 order of dismissal.” Neither of the OSCs issued by the trial court on February 4, 2019 addressed the propriety of the April 2018 dismissal order. Rather, they addressed the failure to serve Scott with the complaint and the propriety of the November 2018 order granting Video’s section 473(b) motion and setting aside the April 2018 dismissal order based upon Flanagan’s assertion that the dismissal had been the result of his mistake or excusable neglect. In its April 25, 2019 order, the court found that its November 2018 order was incorrect—i.e., that the April 2018 dismissal order had not been the result of Flanagan’s mistake or excusable neglect. In reaching that conclusion, the court was not required to assess the propriety of the April 2018 dismissal order.

In any event, the law precludes this court from reviewing the propriety of the April 2018 dismissal order. That order became unreviewable when no appeal was filed within 180 days of its entry. As our Supreme Court has observed, “California follows a ‘one shot’ rule under which, if an order is appealable, appeal must be taken or the right to appellate review is forfeited.” (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 761, fn. 8, citing § 906 [the powers of a reviewing court do not include the power to “review any decision or order from which an appeal might have been taken” but was not]; Alch v. Superior Court (2004) 122 Cal.App.4th 339, 361; Kinoshita v. Horio (1986) 186 Cal.App.3d 959, 967 [“If [a] ruling is appealable, the aggrieved party must appeal or the right to contest it is lost”].) Because the April 2018 dismissal order was appealable, “it follows that it had to be timely appealed or the right to challenge its particulars be forever lost.” (In re Baycol Cases I & II, supra, 51 Cal.4th at p. 761, fn. 8.)

Because Video has not raised any issues regarding the bases for the trial court’s April 25, 2019 rulings, we affirm the court’s order dismissing the complaint.

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DISPOSITION

The judgment is affirmed. Hill shall recover her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

MANELLA, P. J.

COLLINS, J.