Sw. Law Sch. v. Benson

• Decision Date: 25 October 2019
• Docket Number: No. BV 032895,BV 032895
• Citation: 254 Cal.Rptr.3d 629,42 Cal.App.5th Supp. 1
• Court: California Superior Court
• Parties: SOUTHWESTERN LAW SCHOOL, Plaintiff and Respondent, v. Madonna BENSON, Defendant and Appellant.

42 Cal.App.5th Supp. 1

254 Cal.Rptr.3d 629

SOUTHWESTERN LAW SCHOOL, Plaintiff and Respondent,

v.Madonna BENSON, Defendant and Appellant.

No. BV 032895

Appellate Division, Superior Court, California. LOS ANGELES COUNTY.

Filed October 25, 2019

William Joseph Zeutzius, Jr., Esq., Pasadena, for Plaintiff and Respondent Southwestern Law School, fka Southwestern University School of Law.

Madonna Benson, in pro. per., for Defendant and Appellant.

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, inter alia, by filing an answer in Los Angeles, defendant "waived her choice of changing venue to Ventura County."

The case was called for trial in Norwalk, and defendant orally moved to dismiss the action under section 399, subdivision (a).

The court noted, "[d]efendant failed to prepare necessary documents to effectuate the transfer. Also, no transfer fees were paid," and the case proceeded to trial.²

After considering testimony and documentary exhibits, the court rendered judgment in plaintiff's favor. The court awarded plaintiff the principal amount of $22,529.64, $2,816.46 in interest, $2,500 attorney's fees, and $95 in costs, for a total award of $28,341.10. Defendant filed a timely notice of appeal from the judgment.

DISCUSSION

The issues on appeal pertain to statutory interpretation of section 399 and related transfer statutes. We therefore exercise de novo review. ( Ceja v. Rudolph & Sletten, Inc. (2013) 56 Cal.4th 1113, 1119, 158 Cal.Rptr.3d 21, 302 P.3d 211 ; Severson & Werson, P.C. v. Sepehry-Fard (2019) 37 Cal.App.5th 938, 944, 249 Cal.Rptr.3d 839.)

Statutory Provisions

Section 396b, subdivision (a), provides, in relevant part, "[I]f an action or proceeding is commenced in a court having jurisdiction of the subject matter thereof, other than the court designated as the proper court for the trial thereof, under this title, the action may, notwithstanding, be tried in the court where commenced, unless the defendant, at the time he or she answers, demurs, or moves to strike, or, at his or her option, without answering, demurring, or moving to strike and within the time otherwise allowed to respond to the complaint, files with the clerk, a notice of motion for an order transferring the action or proceeding to the proper court, together with proof of service, upon the adverse party, of a copy of those papers. Upon the hearing of the motion the court shall, if it appears that the action or proceeding was not commenced in the proper court, order the action or proceeding transferred to the proper court."³

In relevant part, section 397 provides, "The court may, on motion, change the place of trial in the following cases: [¶] (a) When the court designated in the complaint is not the proper court...."

Procedures for transferring a matter wherein a transfer motion has been granted are spelled out in section 399, subdivision (a). This statute provides, in relevant part:

"If an order is made transferring an action or proceeding under any provision of this title, the clerk shall, after expiration of the time within which a petition for writ of mandate could have been filed pursuant to Section 400, or if a writ petition is filed after judgment denying the writ becomes final, and upon payment of the costs and fees, transmit the pleadings and papers of the action or proceeding, or, if the pleadings are oral, a transcript of the pleadings, to the clerk of the court to which the action or proceeding is transferred.... If the transfer is sought solely, or is ordered, because the action or proceeding was commenced in a court other than that designated as proper by this title, those costs and fees, including any expenses and attorney's fees awarded to the defendant pursuant to Section 396b, shall be paid by the plaintiff before the transfer is made.... The cause of action shall not be further prosecuted in any court until those costs and fees are paid. If those costs and fees are not paid within 30 days after service of notice of the transfer order, ... the court on a duly noticed motion by any party may dismiss the action without prejudice to the cause on the condition that no other action on the cause may be commenced in another court before satisfaction of the court's order for costs and fees...."⁴

Construction

In construing a statute, if the statutory language is clear and unambiguous, we determine this is what was intended by the Legislature, and apply the language as written without resorting to extrinsic indicia of legislative intent. (See City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 419, 205 Cal.Rptr.3d 499, 376 P.3d 624 ; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61, 124 Cal.Rptr.2d 507, 52 P.3d 685 ["Where ... legislative intent is expressed in unambiguous terms, we must treat the statutory language as conclusive"].) We also consider the structure of the statute and the interrelationship of its parts in ascertaining its intent. (See Robert L. v. Superior Court (2003) 30 Cal.4th 894, 903, 135 Cal.Rptr.2d 30, 69 P.3d 951 [" ‘Statutory language should not be interpreted in isolation, but must be construed in the context of the entire statute of which it is a part, in order to achieve harmony among the parts’ "].)

Defendant moved to transfer the case on the ground that venue for the breach of contract action was proper only in Ventura, and hence that Los Angeles was not the proper court under section 397, subdivision (a). The court on December 7, 2017, conducted a hearing and stated in its minute order that the transfer motion was granted (see § 396b, subd. (a)), and the clerk in a "Certificate of Mailing" indicated it "served the Minute Order (Ruling on Submitted Matter) of 12/07/2017 upon each party." The transfer costs and fees were not paid, and defendant...