Casillas v. Allen
Filed 2/24/06 Casillas v. Allen CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
| BENJAMIN CASILLAS et al., Plaintiffs and Respondents, v. PENELOPE G. ALLEN, Defendant and Appellant. | E037556 (Super.Ct.No. SCV 97899) OPINION |
APPEAL from the Superior Court of San Bernardino County. Kenneth George Ziebarth, Judge. (Retired judge of the San Bernardino Superior Court, assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.) Reversed.
Law Offices of Hall & Bailey, John L. Bailey and Therese Bailey-Nelson for Defendant and Appellant.
Law Offices of Eric B. Kaminsky and Eric B. Kaminsky for Plaintiffs and
Respondents.
1. Introduction
Defendant Allen appeals from an order granting plaintiffs' motion for reconsideration and revoking a previous order dismissing the case with prejudice. We hold the underlying judgment of dismissal was appealable. Therefore, plaintiffs' motion to set aside the dismissal and subsequent reconsideration motion were untimely. In the alternative, a motion for relief from judgment under Code of Civil Procedure section 473 was not properly granted. We reverse the order granting plaintiffs' reconsideration motion and reinstate the judgment dismissing plaintiffs' complaint.
2. Factual and Procedural Background
The facts are derived from the first amended complaint and the submissions made to the superior court.
Defendant owned residential real property on East 28th Street in Highland. In May 1998, defendant leased the property to the Casillas plaintiffs. In August 1998, plaintiffs agreed to purchase the property, subject to the existing first trust deed, for the amount of $33,800, composed of a cash payment $6,300 and a second trust deed for the balance in favor of defendant. After plaintiffs defaulted in their payments, defendant recorded a quit claim deed from them to her on January 16, 2002. In February 2002, the parties entered into another lease of the property. The plaintiffs again sought to purchase the property in September 2002 under terms proposed by defendant. In their complaint, they asked the court to set aside the transfer effected by the recorded quit claim deed and to make a judicial determination and declaration of the parties' rights and duties.
On March 15, 2004, the parties entered into a settlement on the record. The plaintiffs agreed to refinance the property within 60 days, or by May 14, 2004, and to pay $63,000 in settlement to defendant who would cooperate in clearing the title for a sale to the plaintiffs. In the event the plaintiffs could not accomplish a refinance of the property, they would execute a second trust deed in the amount of $73,000 in favor of defendant. The case would then be dismissed. Robin Casillas represented to the court that she had the authority to act for her husband, Benjamin Casillas.
In June 2004, the court conducted an order to show cause hearing regarding dismissal. Robin Casillas, acting in propria persona and appearing by telephone, told the court she had opened an escrow to refinance the property and that $63,000 was being held in trust but that the refinancing had not been completed for reasons she blamed on her former lawyer, Duke Rouse. Defendant's counsel, Wacy Armstrong, asserted that because of the delay, the $63,000 settlement had expired and the settlement amount had increased to $73,000. The court continued the hearing to July.
On July 20, 2004, the parties appeared again. Defendant was represented by Armstrong. Robin Casillas appeared in propria persona. Armstrong informed the court that the plaintiffs had not completed the settlement. The court dismissed the action with prejudice. The dismissal order was filed on July 21, 2004, and notice was served by mail on the plaintiffs.
A substitution of attorney, making John Bouzane the plaintiffs' new lawyer, was filed on July 30, 2004. On October 12, 2004, the plaintiffs, represented by Bouzane, filed a motion to set aside the dismissal. The motion included two letters, one dated May 4, 2004, purportedly written by an escrow company, MLE Country Realty, to defendant directly and not to her lawyer, stating: â€
