Case Name: Lumba v Miroyan
Case No. 114CV261280 and 114CV267302

Cross-Defendants’ Motion to Dismiss Cross-Complaint

I. Statement of Facts.

Plaintiff and Cross-Defendant Vijay K. Lumba (“V. K. Lumba”) brought two separate actions seeking repayment of an unsecured loan of $385,000 based on a promissory note. On February 25, 2014, Case # 114CV261280 was filed, naming Sperry Road Business Center, LLC (“SRBC”), Vitoil Corporation (“VC”), Valeri Grigoriants (“Grigoriants”), and Michael H. Miroyan (“Miroyan”) as defendants. On June 30, 2014 Case #114CV267302 was filed, naming Golden Eagle Investments, LLC (“GEI”) as defendant. The two actions were consolidated on September 3, 2014, designating Case #114CV261280 as the lead case.

After V. K. Lumba filed a first amended complaint on February 12, 2014, Miroyan filed an answer and cross-complaint on August 1, 2014, naming V. K. Lumba, V. K. Lumba & Martha I. Lumba, as Co-Trustees of the Lumba Family Trust (collectively, “the Lumbas”) as cross-defendants.

On October 23, 2014, the Court sustained a demurrer against Miroyan’s cross-complaint with ten days’ leave to amend. Subsequently, all complaints and cross-complaints filed in the consolidated actions were dismissed at the request of parties, except for Miroyan’s cross-complaint.

The Lumbas filed the instant motion to dismiss the cross-complaint filed by Miroyan, on the ground that Miroyan failed to timely amend the cross-complaint within the time limit prescribed in the Court’s October 23, 2014 Order sustaining the Lumbas’ demurrer to the cross-complaint. The Lumbas cite Code of Civil Procedure § (“CCP”) 581(f)(2) in support of their motion. The Lumbas also argue that “the subject of the former Cross-Complaint is itself moot because its entire legal and factual predicate was Mr. Lumba’s pursuit of this collection Action; which has since been dismissed entirely.”

Miroyan did not file a formal opposition to the motion. The Lumbas filed a reply memorandum in support of their motion, pointing out the absence of a formal opposition having been filed or served by Miroyan, and reiterating their request for dismissal of the cross-compliant.

II. Legal Standard and Analysis.

“[CCP 581(f)(2)] ‘… gives the defendant the right to obtain a court order dismissing the action with prejudice once the court sustains a demurrer with leave to amend and the plaintiff has not amended within the time given.’” (Cano v. Glover (2006) 143 Cal.App.4th 326, 330; citations omitted.)

The court records in this case show that the Lumbas’ demurrer to Miroyan’s cross-complaint was sustained with 10 days’ leave to amend. The order sustaining the demurrer was filed, and the court clerk served copies on Miroyan on October 23, 2014. The service was completed by mailing copies of the order to Miroyan’s P.O. Box address and the Santa Clara County Jail where Miroyan was incarcerated at the time. The Lumbas also filed a notice of entry of order and served the same on Miroyan at his P.O. Box address and the Santa Clara County Jail on October 28, 2014.

Subsequently, on November 13, 2014, Miroyan filed a motion for stay of all proceedings pending his release from jail, which Miroyan indicated was due before the end of 2014. But the Court denied the request in an order issued on December 23, 2014. It is now more than six weeks since the end of 2014, and almost four months since the demurrer to the cross-complaint was sustained. No amended cross-complaint is filed up until now.

Notice of motion is not required in order for a party to obtain dismissal of an action under CCP 581(f)(2); but the court cannot dismiss without the request of a party. (Oppenheimer v. Deutchman (Super. 1955) 132 Cal.App.2d Supp. 875, 879; Dumm v. Pacific Valves (1956) 146 Cal.App.2d 792, 795-96; Wilburn v. Oakland Hosp. (1989) 213 Cal. App. 3d 1107, 1110.) “The underlying reason for allowing dismissal without notice after failure to amend is that the losing party has already been entitled to a full hearing on the merits.” (Wilburn v. Oakland Hosp. supra, 213 Cal. App. 3d 1107, 1110; citations and footnote omitted.)

Nonetheless, the Lumbas filed a noticed motion in requesting dismissal of the cross-complaint. The notice of motion and supporting documents were properly served on Miroyan both at his P.O. Box address and the Santa Clara County Jail.

But ultimately, “[t]he decision to dismiss an action under [CCP 581(f)(2)] rests in the sound discretion of the trial court [….]” (Gitmed v. General Motors Corp. (1994) 26 Cal.App.4th 824, 827; citing Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1054.)

In the exercise of its discretion in the present case, the Court has given particular attention to the fact that Miroyan has for some time been incarcerated at the Santa Clara County Jail. It has been held that considerations of due process and equal protection both under state and federal constitutions require that prisoners be given a meaningful opportunity to be heard in civil actions that threaten their property interests. (Payne v. Super. Ct. (1976) 17 C.3d 908, 922.) “[A person’s] incarceration may not deprive him of meaningful access to the courts if he is indigent and the litigation involves a bona fide threat to his property interests.” (Wantuch v. Davis (1995) 32 Cal. App. 4th 786, 795-796.)

“Remedies to secure access may include: (1) deferral of the action until the prisoner is released; (2) appointment of counsel for the prisoner; (3) transfer of the prisoner to court; (4) utilization of depositions in lieu of personal appearances; (5) holding of trial in prison; (6) conduct of status and settlement conferences, hearings on motions and other pretrial proceedings by telephone; (7) propounding of written discovery; (8) use of closed circuit television or other modern electronic media; and (9) implementation of other innovative, imaginative procedures.” (Id., at 792-793; internal citations and footnotes omitted.)

The records in the present case show that Miroyan has been able to prepare and file pleadings while incarcerated. He has not raised any lack of cooperation on the part of jail authorities in facilitating his efforts in the prosecution of this civil action. The Court also provided Miroyan reasonable accommodations to ensure that he had a meaningful access to the court and a fair opportunity to be heard. In addition to waiving filing and other court fees, Miroyan has also been granted leave to appear telephonically via Court Call or by any other telephonic means that complies with jail security.

Most importantly, by his own representation, Miroyan was due to be released from jail “before the end of 2014.” More than six weeks have passed since then; and Miroyan has not filed an amended cross-complaint, nor has he filed a formal opposition to the instant motion to dismiss his cross-complaint. There is no indication or communication from Miroyan showing that his expected release date has been extended.

It is therefore reasonable to conclude that Miroyan’s past incarceration at the Santa Clara County Jail was not the reason for his failure to timely amend his cross-complaint and/or file a formal opposition to the Lumbas’ motion to dismiss the cross-complaint. In the absence of evidence to the contrary, the Court has no option but to grant the motion to dismiss.

III. Conclusion and Order.

The motion of Plaintiff and Cross-Defendant V. K. Lumba and Cross-Defendants V. K. Lumba & Martha I. Lumba, as Co-Trustees of the Lumba Family Trust, is GRANTED and Michael H. Miroyan’s Cross-Complaint is DISMISSED WITH PREJUDICE.