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Southwestern Law School v. Benson

Superior Court of California, Appellate Division, Los Angeles

October 25, 2019

SOUTHWESTERN LAW SCHOOL, Plaintiff and Respondent,
v.
MADONNA BENSON, Defendant and Appellant.

          APPEAL from a judgment of the Superior Court of Los Angeles County, Norwalk Trial Court No. 17NWLC00433, Ann H. Park, Judge.

          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.

          OPINION

          RICCIARDULLI, J.

         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 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, ...


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