Mintz v. Law Offices of David R. Denis CA2/1 ( 2023 )

Filed 1/31/23 Mintz v. Law Offices of David R. Denis CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
ERIC MINTZ, B311568
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC704715)
v.
LAW OFFICES OF DAVID R.
DENIS et al.,
Defendants and Appellants.
Appeal from judgment of the Superior Court of Los Angeles
County, Monica Bachner, Judge. Affirmed.
Law Offices of David R. Denis, David R. Denis and
Armando M. Galvan for Defendants and Appellants.
Eric Mintz, in pro. per, for Plaintiff and Respondent.
______________________________
Appellants Law Offices of David R. Denis, P.C. (LODD)
and David R. Denis (collectively, LODD appellants) appeal from
the trial court’s January 8, 2021 judgment entered in favor of
respondent Eric Mintz (Mintz), following the court’s November 4,
2020 order vacating dismissal of Mintz’s complaint. LODD
appellants’ only contention is that the trial court abused its
discretion in vacating the dismissal. Because we conclude
that the trial court did not abuse its discretion, we affirm the
judgment.
FACTUAL SUMMARY AND PROCEDURAL HISTORY1
This appeal arises out of an employment dispute between
LODD appellants and Mintz, an attorney who previously worked
for LODD. On May 1, 2018, Mintz filed a complaint alleging,
inter alia, that LODD appellants had misclassified him as an
independent contractor. LODD appellants filed a cross-complaint
on November 13, 2018, asserting 12 causes of action against
Mintz, including breach of contract, conversion, and legal
malpractice. The parties litigated their claims for nearly a
year and a half, during which the trial court imposed monetary
sanctions against LODD several times for discovery violations.
LODD appellants do not dispute that LODD has not paid in full
the amounts due to Mintz pursuant to the sanctions orders.
Attorney Aryeh Leichter (Leichter) represented Mintz throughout
the litigation.
On October 17, 2019, at a mandatory settlement conference
before the Honorable James R. Dunn, the parties reached a
settlement. They memorialized their agreement in a three-page
1 We summarize here only the facts and procedural history
relevant to our resolution of this appeal.
2
document titled “stipulation re[garding] settlement” (the October
2019 stipulation) drafted on a form stipulation. The handwritten
portion of the October 2019 stipulation provides, in relevant part,
that the parties “[a]gree to resolve the entire case/matter for
$16,000.00. [LODD] agrees to pay [Mintz] $16,000.00 to resolve
both the complaint and cross-complaints. [Mintz] is to execute
a satisfaction of judgment for any judgment satisfied by levy
or any other means forthwith. [LODD] to pay funds within
10 business days.” In addition, the parties left intact the printed
form language in the stipulation, including, as relevant here, the
following provisions: “The parties agree the court may dismiss
the case without prejudice. The court is requested to retain
jurisdiction and this settlement may be enforced pursuant to . . .
Code of Civil Procedure section 664.6.”2 (Capitalization omitted.)
It does not appear that either party filed the October 2019
stipulation (or any other document requesting that the trial
court retain jurisdiction to enforce the parties’ settlement) until
after the court’s December 2019 dismissal of Mintz’s complaint
(discussed, post).
2 All unspecified statutory references are to the Code of
Civil Procedure. The version of section 664.6 in effect in 2019
provided, in relevant part: “If parties to pending litigation
stipulate, in a writing signed by the parties outside the presence
of the court or orally before the court, for settlement of the case,
or part thereof, the court, upon motion, may enter judgment
pursuant to the terms of the settlement. If requested by the
parties, the court may retain jurisdiction over the parties to
enforce the settlement until performance in full of the terms
of the settlement.” (Former § 664.6.) The subsequent January
2021 amendments to section 664.6 did not materially alter this
language.
3
On October 18, 2019, the day after the parties reached
the settlement memorialized in the October 2019 stipulation,
Leichter filed a notice indicating that he was substituting out
of the action and that Mintz would be representing himself.
The substitution notice provides the following address for Mintz:
1812 West Burbank Boulevard, #7054, Burbank, California
91506-1315 (the Burbank address). Also on October 18, 2019,
Mintz electronically filed a “notice of settlement of entire
case,” indicating that the parties had reached a settlement on
October 17, 2019. (Capitalization omitted.) The notice states
that the settlement is “[u]nconditional” and provides, in relevant
part: “Notice to plaintiff or other party seeking relief. You must
file a request for dismissal of the entire case within 45 days after
the date of the settlement if the settlement is unconditional. . . .
Unless you file a dismissal within the required time or have
shown good cause before the time for dismissal has expired why
the case should not be dismissed, the court will dismiss the entire
case.” In contrast to the substitution notice, the caption of the
settlement notice provides the following contact information
for Mintz: “Eric Mintz, in pro se, c/o Leichter Law Firm, APC,
3580 Wilshire Boulevard, Ste. 1745, Los Angeles, CA 90010” (the
Wilshire address).
On October 21, 2019, the clerk file-stamped the settlement
notice, and the court issued an order to show cause regarding
dismissal after settlement (OSC), setting the hearing on the
OSC for December 10, 2019. The court clerk mailed notice
of the OSC only to Leichter’s Wilshire address, rather than
to Mintz’s Burbank address. Neither party appeared at the
December 10, 2019 hearing on the OSC, and the court dismissed
the complaint and cross-complaint with prejudice (the December
2019 dismissal). Again, the court clerk mailed notice of the
4
December 2019 dismissal to Leichter’s Wilshire address, rather
than to Mintz’s Burbank address.
Contemporaneously with the court proceedings detailed
above, the parties had been negotiating what LODD appellants
characterize as a more detailed “long form” settlement and
release (the December 2019 agreement) intended to supersede
the October 2019 stipulation. As relevant to this appeal,
the December 2019 agreement contains language that LODD
appellants argue conditions their payment of settlement funds
to Mintz on the trial court’s dismissal of the complaint and
cross-complaint with prejudice. In contrast to the October 2019
stipulation, the December 2019 agreement does not contain any
request that the court retain jurisdiction to enforce the parties’
settlement. The parties never fully executed the agreement,
however; although Mintz signed the agreement on December 3,
2019, there is no evidence that LODD appellants ever signed the
agreement.
It appears that no later than December 13, 2019, a dispute
arose concerning whether, as part of the parties’ settlement,
Mintz and Leichter had released LODD appellants from any
obligation to pay the outstanding amounts due pursuant to the
trial court’s sanctions orders. The parties were unable to resolve
the dispute, and, on April 6, 2020, Mintz filed a motion pursuant
to section 664.6 to enforce the terms of the parties’ settlement
memorialized in the October 2019 stipulation. Mintz argued
in the motion that LODD appellants improperly had refused
to pay the $16,000 due under the settlement. The motion made
no reference to the December 2019 agreement.
Prior to the scheduled July 1, 2020 hearing on Mintz’s
motion to enforce the settlement, on April 27, 2020, the court
received an electronically filed request for dismissal of the action
5
with prejudice (the April 2020 dismissal request), signed
by Mintz on November 17, 2019, and by LODD appellants on
December 10, 2019. The caption of the April 2020 dismissal
request identifies Mintz as the filer; however, the accompanying
proof of service refers to the document as “defendants and cross-
complainants’ request for dismissal” (boldface and capitalization
omitted), and indicates that it was served on Mintz at his
Burbank address, suggesting that LODD appellants filed the
dismissal request. In response to the dismissal request, the
court clerk entered dismissal on April 28, 2020. The court then
vacated the hearing date on Mintz’s pending motion to enforce
settlement.
On July 27, 2020, Mintz filed an ex parte application
to set aside the April 2020 dismissal of the action, pursuant to
section 473, arguing that LODD appellants had filed the April
2020 dismissal request without his consent. He argued that the
dismissal request “was to be held and only filed upon completion
of the settlement payment,” and that LODD appellants still had
not paid the $16,000 due under the October 2019 stipulation.
LODD appellants opposed the ex parte application, arguing that
Mintz had signed the superseding December 2019 agreement,
which provided that “a condition precedent to the payment of
any settlement funds is the dismissal of the action.” (Boldface
and underscoring omitted.) LODD appellants argued further
that the trial court lacked jurisdiction to enforce the settlement
agreement because the parties had failed to request that the
court retain jurisdiction to do so pursuant to section 664.6.
On July 29, 2020, the court issued an order setting Mintz’s
motion to vacate the dismissal for an October 26, 2020 hearing,
deemed Mintz’s ex parte application the moving papers, and
ordered that the parties file opposition and reply papers pursuant
6
to code. LODD appellants filed an opposition to Mintz’s motion
on October 13, 2020, largely reiterating the arguments they
had made in opposition to the ex parte application. Following
the October 26, 2020 hearing on the motion, the court took the
matter under submission.
On November 4, 2020, the trial court denied as untimely
Mintz’s request that it vacate the April 2020 dismissal pursuant
to section 473, subdivision (b). The court explained that, because
only the December 2019 dismissal (and not the April 2020
dismissal) was legally operative, Mintz’s July 27, 2020 motion fell
outside the six-month window following dismissal during which
section 473 permits a party to seek relief.3 On its own motion,
however, the court then vacated the December 2019 dismissal
of Mintz’s complaint “on equitable grounds based on extrinsic
mistake.” The court explained that it “improperly served
[Mintz’s] former counsel[,] Leichter[,] with its orders setting the
OSC and subsequently dismissing the action, notwithstanding
the fact [Mintz] had filed a substitution of attorney indicating
[that] he would be self-represented prior to the court’s issuance of
these orders. To the extent the court relied on [Mintz’s] inclusion
of the Wilshire address on his notice of settlement in drafting
the certificates of mailing, it erred in not confirming the address
reflected [Mintz’s] address set forth in the substitution of
3 Section 473, subdivision (b), provides, in relevant part:
“The court may, upon any terms as may be just, relieve a party
or his or her legal representative from a . . . dismissal . . . taken
against him or her through his or her mistake, inadvertence,
surprise, or excusable neglect. Application for this relief . . .
shall be made within a reasonable time, in no case exceeding
six months, after the judgment, dismissal, order, or proceeding
was taken.”
7
attorney. As such, the court finds [Mintz] did not have proper
notice of the OSC re[garding] dismissal or of the dismissal of his
action” (capitalization omitted), and the court therefore “should
not have dismissed the action.” The court then vacated both the
December 2019 and April 2020 dismissals and rescheduled the
hearing on Mintz’s motion to enforce settlement for December 17,
2020.
In advance of that hearing, on November 25, 2020, LODD
appellants refiled the request for dismissal form they had filed
in April 2020—i.e., the same document, with signatures dated
in November and December 2019, that Mintz disputes he ever
provided authorization to file. At the December 17, 2020 hearing
on Mintz’s motion to enforce the settlement, the court rejected
the refiled dismissal request, explaining: “This dismissal
was already vacated by the court[,] . . . and [LODD appellants]
improperly seek the court enter dismissal against [Mintz] . . .
notwithstanding its ruling and notwithstanding the pending
motion to enforce settlement.” (Capitalization omitted.) The
court then rejected LODD appellants’ argument that the
sanctions awards constituted attorney fees encompassed within
the parties’ settlement and concluded that LODD appellants
were in breach of their obligation to pay the $16,000 settlement
sum to Mintz. The court determined further that Mintz was
entitled to prejudgment interest and costs. The court therefore
entered judgment in favor of Mintz and against LODD appellants
in the amount of $16,935.90 on January 8, 2021. LODD
appellants timely appealed.4 We granted the parties’ subsequent
4We deny Mintz’s motion to dismiss the appeal as untimely
because the record reflects that LODD appellants repeatedly
attempted to file their notice of appeal within the required time
8
requests to augment the appellate record, as well as Mintz’s
request for judicial notice. We also provisionally granted LODD
appellants’ request for judicial notice, and we now grant that
request in full.
DISCUSSION
A trial court possesses “inherent equity power to vacate
a judgment obtained under circumstances of extrinsic fraud or
mistake.” (Aldrich v. San Fernando Valley Lumber Co. (1985)
170 Cal.App.3d 725, 736.) We review a court’s exercise of such
equitable authority for abuse of discretion.5 (Id. at pp. 730,
736−737.)6
Here, the trial court vacated dismissal of Mintz’s complaint
based on extrinsic mistake—namely, a clerical error. The court
found that the clerk erroneously sent notice of the October 2019
OSC regarding dismissal and the December 2019 dismissal itself
to Leichter’s Wilshire address, rather than to Mintz’s Burbank
address identified on the attorney substitution notice. “Due
process requires notice before a dismissal of a case may be
entered,” even where a dismissal is “self-executing, [such as
frame, although the notice was not accepted for filing by the clerk
until two days after the time to appeal had lapsed. (See, e.g.,
Pangilinan v. Palisoc (2014) 227 Cal.App.4th 765, 769−770.)
5 We thus are unpersuaded by LODD appellants’
arguments that we should apply a de novo standard of review
here because, inter alia, “[t]his case involves the interpretation of
statutes.”
6 Although LODD appellants frame their appeal as raising
seven issues, all are subsumed within the analysis of whether the
trial court abused its discretion in vacating dismissal of Mintz’s
action.
9
when] a court must dismiss a case 45 days after receiving notice
of settlement.” (Lee v. Placer Title Co. (1994) 28 Cal.App.4th
503, 510; see ibid. [“[P]arties must distinguish ‘the authority
of a court to dismiss a case because of the actions (or inactions)
of its litigants [from] the procedural requirements that precede
any such dismissal. At a minimum, such requirements include
notice to the plaintiff of a motion or intent to dismiss and an
opportunity for plaintiff to be heard.’ ”].) Because the record
supports that the clerk sent notice to the wrong address, the
court correctly determined that Mintz had not received proper
notice of the OSC and the subsequent dismissal. (Lee, supra,
28 Cal.App.4th at p. 511 [“ ‘[w]here the envelope containing the
notice is improperly addressed, it is as though notice were never
mailed by the clerk’ ”].) On this record, we cannot conclude that
the court abused its discretion by vacating dismissal of Mintz’s
complaint.
None of LODD appellants’ arguments persuade us
otherwise. First, LODD appellants urge that the trial court
lacked subject matter jurisdiction to vacate the April 2020
dismissal because “ ‘[w]here the plaintiff has filed a voluntary
dismissal of an action . . . , the court is without jurisdiction
to act further . . . , and any subsequent orders of the court are
simply void.’ ” As an initial matter, as the trial court noted,
the December 2019 dismissal—and not the dismissal entered
following the April 2020 dismissal request—was the operative
dismissal here. Moreover, to the extent the April 2020 dismissal
request had any legal effect—even without resolving the parties’
myriad factual disputes7 —the record is clear that the April 2020
7As noted, ante, Mintz insists that the parties agreed that
the April 2020 dismissal request “was to be held and only filed
10
dismissal was not the result of a voluntary dismissal filed by
Mintz: LODD appellants filed the April 2020 dismissal request
while the parties still were in the midst of a dispute concerning
the terms of the settlement and while Mintz’s motion to enforce
the settlement still was pending. The various cases on which
LODD appellants rely involving voluntary dismissals therefore
are inapposite. Moreover, LODD appellants’ reliance on Mesa
RHF Partners, L.P. v. City of Los Angeles (2019) 33 Cal.App.5th
913, confuses a trial court’s jurisdiction to consider a motion
to vacate a dismissal with its jurisdiction to consider a motion
to enforce a settlement following dismissal, pursuant to
section 664.6.
Second, we reject LODD appellants’ various arguments
that purportedly imprecise wording in the court’s November 4,
2020 order vacating dismissal of Mintz’s complaint somehow
left intact the December 2019 or April 2020 dismissals,
thereby depriving the trial court of jurisdiction to consider
Mintz’s motion to enforce the parties’ settlement. The court’s
November 4, 2020 order unequivocally vacated any prior
dismissals of Mintz’s complaint, including the December 2019
and April 2020 dismissals.
Third, we find unconvincing LODD appellants’ contentions
that the court clerk was correct in sending the OSC and dismissal
notices to Leichter’s Wilshire address, and that Mintz received
actual notice of the December 10, 2019 hearing on the OSC
upon completion of the settlement payment.” LODD appellants
dispute Mintz’s contention, pointing to language in the December
2019 agreement that they contend requires that the action be
dismissed before any payment of settlement funds transpires.
11
and subsequent dismissals. LODD appellants argue that
(1) section 1013, subdivision (a) provides that mail service must
be effected “at the office address as last given by [the party being
served] on any document filed in the cause” (§ 1013, subd. (a)),
and (2) the settlement notice—which identifies the Wilshire
address as Mintz’s operative address—was the last filing Mintz
made prior to the December 10, 2019 hearing on the OSC because
the court clerk entered that notice on the trial court docket on
October 21, 2019. But LODD appellants ignore that Mintz
electronically filed the settlement notice on October 18, 2019,
at 3:35 p.m. Leichter, on Mintz’s behalf, then filed the attorney
substitution notice, providing Mintz’s Burbank address, at
6:50 p.m. that same day. Thus, the address “last given” in a
filing by Mintz or his attorney prior to the December 10, 2019
OSC hearing was Mintz’s Burbank address.
LODD appellants’ related argument that, by checking the
“plaintiff ” box on the attorney substitution form, Mintz updated
his contact information only in his capacity as plaintiff, and not
as cross-defendant in the action, is meritless. The substitution
form does not contain a “cross-defendant” box, and Mintz
correctly populated the form by indicating he was the plaintiff
in the action. Nor is there any force to LODD appellants’
contention that, by filing the October 18, 2019 settlement notice
bearing Leichter’s Wilshire address, Mintz intended Leichter
to “remain[ ] [his] attorney on a limited scope basis for the
specific tasks of receiving mail and calls on [his] behalf,” or
that Leichter’s alleged failure to return the court’s mailings as
undeliverable demonstrates that he continued to accept service
on Mintz’s behalf. Finally, we are unpersuaded by LODD
appellants’ insistence that, by stating in a December 6, 2019
email that the parties should “get everything finalized and
12
filed . . . so we don’t have to appear in court next week,” Mintz
“essentially admit[ted] receiving notice of the OSC hearing
and . . . express[ed] his plan not to attend.” (Italics omitted.)
Although the email could support such an inference, it is
insufficiently detailed to demonstrate Mintz’s actual notice of
the OSC, and it sheds no light whatsoever on whether Mintz
received notice of the subsequent dismissal.8
Accordingly, because we conclude that the trial court
did not abuse its discretion in vacating dismissal of Mintz’s
complaint, we affirm the January 8, 2021 judgment.9
8 LODD appellants made this same argument in their
opposition to Mintz’s motion to enforce the settlement, and we
therefore find unpersuasive their argument on appeal that the
trial court ran afoul of the decision in LeFrancois v. Goel (2005)
35 Cal.4th 1094, by failing to “solicit briefing specifically on the
question of whether or not [Mintz] was properly served at the
Wilshire address.”
9 In light of our conclusion, we need not consider Mintz’s
remaining arguments—including that the disentitlement
doctrine should bar this appeal—nor LODD appellants’
contentions in response. We note further that, in reaching
our decision, we did not rely upon the declaration attached
to Mintz’s respondent’s brief. We therefore need not address
LODD appellants’ contention that submission of the declaration
was improper.
13
DISPOSITION
We affirm the trial court’s January 8, 2021 judgment.
Respondent Mintz is awarded his costs on appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
WEINGART, J.
14