On 03/08/2013 SHERMAN LEE filed a Contract - Other Contract lawsuit against CHARLES HASBUN. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are ELIA WEINBACH, STEVEN J. KLEIFIELD and WILLIAM F. FAHEY. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
STEVEN J. KLEIFIELD
WILLIAM F. FAHEY
BAYPOINT MORTGAGE INC.
HUSBUN MELLISA ANN
VALLEY TRUST DEED SERVICES
CLOUGH LARRY HAAKON ESQ.
CURTIS GRETA S. ESQ.
NAGLE JOHN ESQ.
NAGLE JOHN S. ESQ.
3/18/2015: DEFENSE STATEMENT OF THE CASE
7/23/2015: NOTICE OF RELATED CASE
9/25/2015: PROOF OF SERVICE SUMMONS
2/29/2016: NOTICE OF TRIAL
2/29/2016: PLAINTIFF'S REQUEST TO TAKE JUDICIAL NOTICE PURSUANT TO EVIDENCE CODE SECTION 452(D)(1)
2/29/2016: NOTICE OF TRIAL
5/6/2016: PROOF OF SERV1CE ? CIV1L
4/11/2017: NOTICE OF MOTION AND MOTION OF BOOSTZ, INC. TO QUASH SERVICE OF SUMMONS AND COMPLAINT; ETC
4/12/2017: DEFENDANTS SCOTT SALTZMAN'S RE- FILED NOTICE OF AND MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT, IF ANY, ENTERED SUA SPONTE BY THE COURT (NO REQUEST BY PLAINTIFF FOR ENTRY OF DEFAULT), AND MOTION
4/17/2017: NOTICE OF ERRRATA AS TO THE CORRECTED NOTICE OF RULING
7/7/2017: EX PARTE APPLICATION TO ADVANCE THE DEFAULT PROVE UP DATE TO JULY 11,2017; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF SHERMAN LEE
9/18/2017: OPPOSITION OF SHERMAN LEE, III TO MOTION FOR JUDGMENT ON THE PLEADING, ETC
10/13/2017: EX PARTE APPLICATION OF DEFENDANT, SCOTT SALTZMAN, FOR ORDER TAKING PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS OFF-CALENDAR ON THE FOLLOWING GROUNDS: 1. PLAINTIFF FAILED TO SERVE HIS MOVING PAPE
10/13/2017: EX PARTE APPLICATION OF DEFENDANTS, AMBER HASBUN, MELISSA HASBUN AND BOOSTZ, INC., FOR ORDER TAKING PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS OFF-CALENDAR FOR FAILURE OF PLAINTIFF TO MEET AND C
10/13/2017: Minute Order
10/30/2017: PLAINTIFF'S OPPOSITION TO DEFENDANTS AMBER HASBUN, BOOSTZ, INC. AND MELISSA HASBUN?S. MOTION TO COMPEL SHERMAN LEE'S ATTENDANCE AT DEPOSITIO; ETC.
11/1/2017: GRETA CURTIS' OBJECTION TO EX PARTE APPLICATION TO COMPEL HER ATTENDANCE TO DEPOSTITION ; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATIONS OF SHERMAN LEE;
11/6/2017: REPLY OF DEFENDANTS, BAYPOINT INVESTORS, INC. AND VALLEY DEED NETWORK, INC., TO PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR AN ORDER: 1. VACATING DEFAULT AS VOID PURSUANT TO CODE OF CIVIL PROCEDU
Order-Case Management Filed by CourtRead MoreRead Less
Notice of Bankruptcy Stay Filed by Attorney for Deft/RespntRead MoreRead Less
Brief (JOINT ) Filed by Attorney for Deft/RespntRead MoreRead Less
Notice Filed by Plaintiff & Plaintiff in Pro PerRead MoreRead Less
Request for Judicial Notice Filed by Plaintiff & Plaintiff in Pro PerRead MoreRead Less
Proof of Service Filed by Attorney for Pltf/PetnrRead MoreRead Less
Declaration Filed by Plaintiff & Plaintiff in Pro PerRead MoreRead Less
Opposition Document Filed by Plaintiff & Plaintiff in Pro PerRead MoreRead Less
Declaration (SHERMAN LEE ) Filed by Plaintiff & Plaintiff in Pro PerRead MoreRead Less
Notice-Stay (OF PROCEEDINGS ) Filed by Attorney for Deft/RespntRead MoreRead Less
List of Witnesses Filed by Attorney for Pltf/PetnrRead MoreRead Less
Proof of Service (BY FIRST CLASS MAIL ) Filed by Attorney for Defendant/RespondentRead MoreRead Less
Answer to Complaint Filed by Attorney for Defendant/RespondentRead MoreRead Less
Proof of Service (FIRST CLASS MAIL ) Filed by Attorney for Defendant/RespondentRead MoreRead Less
Notice of Continuance (OF CASE MANAGEMENT CONFERENCE ) Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
Notice-PI Settlement Conf & Order Filed by ClerkRead MoreRead Less
Notice (OF WITHDRAWAL OF NTC OF PENDENCY OF ACTION; ) Filed by Attorney for Deft/RespntRead MoreRead Less
Notice-Related Cases Filed by Attorney for Deft/RespntRead MoreRead Less
Notice of Reassignment and Order Filed by ClerkRead MoreRead Less
ComplaintRead MoreRead Less
Case Number: BC502633 Hearing Date: January 23, 2020 Dept: 31
MOTION TO DISMISS IS PLACED OFF-CALENDAR.
Defendant’s Motion to Dismiss is taken OFF CALENDAR. Pursuant to this Court’s order on December 13, 2019, Defendant’s counsel was ordered to file a supplemental brief in support of his motion to dismiss by 01/13/20. Defense counsel has failed to do so. Accordingly, the Court places Defendant’s motion to dismiss off calendar. The Final Status Conference remains on calendar..
Case Number: BC502633 Hearing Date: December 13, 2019 Dept: 31
MOTION TO DISMISS IS DENIED.
On March 8, 2013, Plaintiff in pro per Sherman Lee filed the instant action against Defendants Charles Hasbun; Saleh Husban; Scot Saltzman; Melissa Hasbun (erroneously sued as Melissa Ann Husbun) (hereinafter referred to as “Defendant” or “Defendant Melissa”); Amber Husbun; Baypoint Mortgage Inc.; Valley Trust Deed Services; Ammec Inc.; and Does 1 through 10. The Complaint alleges causes of action for:
Slander of Title;
Wrongful Eviction (CCP § 1159);
Abuse of Process; and
Intentional Infliction of Emotional Distress.
On January 14, 2016, the Court, on its own motion ordered “that the defendants who have not answered are in default.” Defendant Melissa was among the defendants against whom default was entered. On August 16, 2017, the Court granted Defendant’s motion to vacate default. On November 13, 2017, the case was ordered stayed. On June 29, 2018, the stay was lifted.
On November 19, 2019, the Court continued the instant Motion to Dismiss to allow the parties to file supplemental briefing.
Code of Civil Procedure section 583.310 requires an action be brought to trial within five years of its commencement. (Code Civ. Proc., § 583.310.)
An action which is not brought to trial within the prescribed period must be dismissed. (§ 583.360, subd. (a).) These requirements are mandatory “and are not subject to extension, excuse, or exception except as expressly provided by statute.” (§ 583.360, subd. (b).) The purpose of the five-year dismissal statute is to prevent the prosecution of stale claims where defendants could be prejudiced by loss of evidence and diminished memories of witnesses. (Lewis v. Superior Court (1985) 175 Cal.App.3d 366, 375, 220 Cal.Rptr. 594.) The statute also protects defendants from the annoyance of having unmeritorious claims against them unresolved for unreasonable periods of time. (Ibid.) While the goals of the five-year limit are somewhat analogous to those underlying statutes of limitation, the five-year limit involves policy considerations that are somewhat less crucial because once an action has been filed defendants can take steps to protect their interests. (General Motors Corp. v. Superior Court of Los Angeles County (1966) 65 Cal.2d 88, 91, 52 Cal.Rptr. 460, 416 P.2d 492.)
(Munoz v. City of Tracy (2015) 238 Cal.App.4th 354, 358-359.)
Under Code of Civil Procedure section 583.340, “In computing the time within which an action must be brought to trial pursuant to this article, there shall be excluded the time during which any of the following conditions existed: (a) The jurisdiction of the court to try the action was suspended; (b) Prosecution or trial of the action was stayed or enjoined; (c) Bringing the action to trial, for any other reason, was impossible, impracticable, or futile.” (Code Civ. Proc., § 583.340.)
The Court notes at the outset that Plaintiff filed an untimely supplement to his opposition on December 10, 2019. Given that Plaintiff filed the supplement to his opposition only 3 days before the hearing on this matter, giving Defendant no opportunity to respond, the Court declines to consider the supplemental opposition on its merits.
Defendant moves for an order dismissing the case pursuant to Code of Civil Procedure section 583.310. Defendant argues that this case has been pending more than six and a half years since Plaintiff first filed his Complaint in March 2013. Defendant asserts that subtracting the period of time that the Court stayed the case from March 3, 2016 until March 17, 2017, and the period of time that the Court of Appeal stayed the case, the case is still more than five months past the five-year statutory period. Defendant contends that accordingly, pursuant to the mandatory nature of Section 583.310, the Court must dismiss the case.
In opposition, Plaintiff argues that the bankruptcy stays tolled the five-year statute of limitations pursuant to Section 583.340. Plaintiff asserts that he has been diligent in the prosecution of this matter. Plaintiff additionally contends that on March 3, 2016, Defendant Charles Hasbun and Saleh Hasbun removed the case to Federal Bankruptcy Court, case number 1:15-ap-01238-VK, and it has never been returned to this Court, thus additionally tolling the statute of limitations.
In reply and in her supplement briefing, Defendant argues that there was, in fact, no removal. Defendant asserts that the Notice of Removal filed by Plaintiff in this case on March 3, 2016 is a false document. Defendant contends that the document purports to be from U.S. Bankruptcy Court Case No. 1:15-ap-01238, however, the removal in that case was filed by someone named Iris Fay Warren on November 20, 2015 and was for the removal of a Ventura County Superior Court Case, Anderson v. Warren, Case No. 56-2015-00472594-CL-UD-VTA. (Brown Decl., Exh. F.) Defendant argues that that case was related to Warren’s bankruptcy case, U.S. Bankruptcy Court Case No. 1:15-bk-13126. (Brown Decl., Exh. F, G.)
Defendant asserts that the Notice of Removal filed in the present case (Brown Decl., Exh. G) was never a part of the Warren bankruptcy case. (Supp. Brown Decl., Exh. H, I.) Defendant contends that the Notice of Removal filed in this case is just a false document. Defendant argues that moreover, the Ventura County case which Warren removed was never remanded but simply dismissed on April 12, 2016. (Brown Decl., Exh. H.)
The Court finds that, based on the evidence before it, this case was never actually removed to federal court. The Court thus has jurisdiction over this case and may determine if dismissal is proper pursuant to Section 583.360.
Here, Plaintiff filed the initial action on March 8, 2013. On January 14, 2016, default was entered as to Defendant. The time period between the filing of the action and the entering of default equates to 1,042 days or 2 years, 10 months, and 6 days. No time may be calculated between the time of entering default and vacating default, as such a time period would be subject to Section 583.340(c) where bringing the action to trial was impossible, impracticable, or futile.
On August 16, 2017, default was vacated, effectively starting the clock again. On November 13, 2017 the case was stayed. The time between when default was vacated and the case was stayed equates to 89 days or 2 months and 28 days.
On June 29, 2018, the stay was lifted, beginning the clock again. The date of the hearing for this motion is December 13, 2019. The time between the lifting of the stay and the hearing of the instant motion equates to an additional 532 days or 1 year, 5 months, 14 days.
A total of 1,663 days or 4 years, 6 months, and 21 days have thus elapsed since the filing of this action, a little less than 6 months from the 5-year mark.
Based on the foregoing, Defendant’s motion to dismiss is DENIED.
Moving party to give notice.
Case Number: BC502633 Hearing Date: November 19, 2019 Dept: 31
MOTION TO DISMISS IS DENIED WITHOUT PREJUDICE.
Defendant Melissa Hasbun’s motion to dismiss this case for failure to bring it to trial within 5 years is DENIED without prejudice.
As indicated by Plaintiff’s opposition to the instant motion, on March 3, 2016, a Notice of Removal was filed indicating that the case had been removed to the United States Bankruptcy Court and/or the United States District Court.
Pursuant to a notice of removal and California Rules of Court Rule 3.22, “[i]f a case is removed to federal court, the court will order a date, not earlier than 90 days from the date of removal, by which counsel must file a Notice of Status of Removed Case. If the case has not remanded to the trial court by that time, it will be recorded as completed without the need to conduct a further status conference.” “[A]ccording to the plain language of these statutes, the state court's jurisdiction is suspended when the defendant seeking removal gives notice to the state court clerk, and it is reacquired when the district court clerk gives notice to the state court clerk in the form of a certified copy of the remand order.” (Spanair S.A. v. McDonnell Douglas Corp. (2009) 172 Cal.App.4th 348, 356.)
The Court has reviewed the docket of the bankruptcy case and it does not appear that a Notice of Remand was issued by the Bankruptcy Court or the District Court. No such remand notice is in this court’s docket for this case. It is unclear to the Court the disposition of the cases listed in the Notice of Removal, whether the case remains within the jurisdiction of the federal district court or whether this Court has jurisdiction over this case.
Without the evidence before the Court from which the Court can adequately assess the present motion to dismiss, the Court has no alternative but to deny the motion without prejudice.
Moving party to give notice.