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Shanel Stasz v. Michael Eisenberg et al

December 10, 2010

SHANEL STASZ, PLAINTIFF AND APPELLANT,
v.
MICHAEL EISENBERG ET AL., DEFENDANTS AND RESPONDENTS.



APPEAL from a judgment of the Superior Court of Los Angeles County, Elizabeth Allen White, Judge. Affirmed.Los Angeles County Super. Ct. No. BC383161

The opinion of the court was delivered by: Armstrong, Acting P. J.

CERTIFIED FOR PUBLICATION

The trial court dismissed the action filed by plaintiff and appellant Shanel Stasz against defendants and respondents Michael Eisenberg*fn1 and Bernard A. Burk, after Stasz failed to pay costs and attorney fees ordered when the court transferred the action to San Francisco pursuant to Code of Civil Procedure section 399, subdivision (a).*fn2 Stasz argues on appeal she was not required to pay the transfer fee because she was never served with notice of finality of the order under section 399, the motion to dismiss was untimely, and she was deprived of her due process right to file a motion for reconsideration.

We affirm. Stasz was not entitled to notice of finality of the transfer order under section 399, subdivision (a), because she did not challenge the order by way of writ of mandate. In addition, we reject the arguments that the motion to dismiss was not timely filed and Stasz was improperly denied an opportunity to seek reconsideration.

PROCEDURAL HISTORY

Stasz's operative first amended complaint alleged multiple causes of action against defendants based on her claim to entitlement of property from the estate of Hugo W. Quackenbush, who had died in San Francisco. Stasz alleged that defendants were both residents of San Francisco. On February 17, 2009,*fn3 the trial court granted defendants' motion to change venue to San Francisco and awarded defendants $2,140 in attorney fees. Stasz was also ordered to pay transfer costs in the amounts of $50 and $365. The order changing venue and imposing costs and fees was signed on February 25.

On April 8, defendants filed a motion to dismiss pursuant to section 399, subdivision (a), on the ground that costs and fees had not been paid by Stasz and more than 30 days had passed since the date of the transfer order. The motion was dated and signed by defendants' counsel on April 6, and service was made by mail on that date.

Stasz filed an opposition to the motion to dismiss on April 23, arguing the motion was not timely served, was premature, and she did not pay the fees in good faith. Stasz argued she was not served with the February 25 order by mail, but instead learned of it on the court's website on February 26. She received the order by mail on March 6. Stasz learned on March 3 that the February 25 order had not been entered. Stasz intended to file a motion for reconsideration under section 1008. Stasz wrote two checks to the court and mailed them on March 13, but the checks were not cashed. She was served with the motion to dismiss on April 21.

Defendants' reply to the opposition to the motion to dismiss argued that Stasz had not paid the costs and fees ordered by the court, and that she had invented "a host of perceived procedural problems." According to the declaration filed by defendants' counsel, notice of the motion to dismiss had to be served no later than April 9--calculated as 16 court days prior to the motion set for May 6, with 5 additional days for mailing. Counsel declared the motion was served on April 6 and filed on April 8.

Defendants further argued that Stasz's contention that the motion was untimely because she did not receive it until April 21 was incorrect, as service was complete upon mailing of the papers under section 1013. Moreover, Stasz filed an opposition to the motion, thereby waiving any objection to timely service.

Defendants contended that Stasz's argument that she could not seek rehearing because the order was never entered makes no sense. The notice of the order was mailed on February 26 and included a filed copy of the order. In addition, Stasz declared that she learned from the court's website on February 26 that the order had been entered. She had until March 6 to file a motion for reconsideration and failed to do so.

Stasz's argument that she was entitled to notice of finality of the order of transfer was based on a misreading of section 399, subdivision (a). She did not file a writ challenging the transfer, and the order was final 30 days after it was signed.

Finally, defendants argued Stasz claimed she paid transfer fees, but made no mention of payment of attorney fees. Section 399 requires payment of both or dismissal is appropriate.

The trial court ruled that although Stasz said she sent two checks to the court, the court had no evidence any checks were received and none were cashed. The court asked if Stasz had any proof of payment; she said she had been moving and could not find her checkbook. She was willing to pay the transfer fee but did not want to pay the attorney fees. The ...


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