Itzhaki v. Ozeri

Filed 8/7/07 Itzhaki v. Ozeri CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County, John P. Shook, Judge. Affirmed.

Law Offices of Barak Isaacs and Barak Isaacs for Defendant and Appellant.

Polk & Berke and Jeff Berke for Plaintiff and Respondent.

__________________________

INTRODUCTION

Moshe Ozeri, doing business as Star Construction, appeals from a judgment of dismissal of his cross-complaint by the trial court. For convenience appellant will be referred to hereafter as Ozeri. Respondent and cross-defendant, Agnes Itzhaki, will be referred to as Itzhaki.

On May 2, 2005, this court filed its unpublished opinion in appeal No. B168459 entitled Moshe Ozeri, Cross-complainant and Appellant v. Agnes Itzhaki, as trustee, etc., Cross-defendant and Respondent reversing the decision of the trial court sustaining the demurrer of Itzahi to Ozeris third amended cross-complaint without leave to amend on the grounds that Ozeris claims were barred by the licensing provisions of Business and Professions Code section 7031. In reversing the dismissal this court held that Ozeri should be given a chance to amend his cross-complaint for a fourth time to allege that the subject construction work in dispute was performed under a valid partnership license, rather than the individual license which formed the basis for his original and three amended cross-complaints.

On remand after this courts reversal, the trial court dismissed the cross-complaint for Ozeris failure to file an amended cross-complaint within the time permitted by law. Because the issues presented on appeal deal only with the alleged failure of Ozeri to timely file an amended cross-complaint after remand, this court dispenses with the necessity to discuss the merits of the action or this courts prior opinion except insofar as might be prudent to lend meaning to the current appeal.

For the reasons hereafter given, we affirm the decision of the trial court.

FACTUAL AND PROCEDURAL SYNOPSIS

Opinion of this court filed May 2, 2005.

Briefly, the underlying action involves a contractor-developer dispute over alleged non-payment for construction work. This court found in its opinion that the demurrer to the cross-complaint was correctly sustained in that Ozeri lacked a valid contractors license when the work was performed and therefore could not state a cause of action because of the prohibition set forth in Business and Professions Code section 7031. This court, however, found that it was error to sustain the demurrer withoutleavetoamend in view of the reasonable possibility that Ozeri could amend to state a viable cause of action on the theory that the subject construction work was performed under a valid partnership license as set forth in Business and Professions Code section 7031.[1]

The remittitur of this court issued on July 8, 2005, and was filed in the Los Angeles County Superior Court on July 13, 2005.

Proceedings in the trial court on remand.

The facts pertaining to proceedings in the trial court do not appear to be in dispute. Ozeri did not file an amended cross-complaint in the Superior Court on remand. In reaction to Itzhakis Motion to Dismiss filed December 9, 2005, Ozeri filed his Motion for Leave to File a Fourth Amended Complaint [sic] on December 15, 2005. The trial court heard both motions on January 13, 2006, and as stated in the notice of ruling found

as follows: After full consideration of all papers submitted in support of and in opposition to the two motions, as well as the oral argument presented at the hearing, the Court granted Itzhakis motion to dismiss on the grounds set forth in Itzhakis moving, reply and opposition papers, and in particular, the fact that Ozeri failed to submit his fourth amended cross-complaint within the time period set forth in CCP 472b, and failed to provide any valid grounds for his non-compliance. The Court denied Ozeris motion for leave to amend on the same grounds.

Ozeri subsequently filed a motion for relief seeking to have the courts dismissal set aside pursuant to Code of Civil Procedure section 473, subdivision (b) and seeking leave of court to file a fourth amended cross-complaint.[2] The trial court denied the motion and on March 22, 2006, dismissed the action and entered judgment for Itzhaki.

On March 22, 2006, Ozeri filed a timely notice of appeal from the order of dismissal and entry of judgment and the denial of Ozeris motion for leave to amend on January 13, 2006, contending that the trial court abused its discretion in denying his motions for leave to amend and for relief from dismissal because Code of Civil Procedure section 473, subdivision (b) permits the vacation of dismissal if counsel made an excusable mistake in failing to meet the 30 day filing requirement of Code of Civil Procedure section 472b.

DISCUSSION

The motion to dismiss relied on Code of Civil Procedure section 581, subdivision (f)(2) and Code of Civil Procedure section 472b which states as follows: Time for pleading after ruling on demurrer. When a demurrer to any pleading is sustained or overruled, and time to amend or answer is given, the time so given runs from the service of notice of the decision or order, unless the notice is waived in open court, and the waiver entered in the minutes. When an order sustaining a demurrer without leave to amend is reversed or otherwise remanded by any order issued by a reviewing court, any amended complaint shall be filed within 30 days after the clerk of the reviewing court mails notice of the issuance of the remittitur. (Italics added.)

It is undisputed that the motion to amend was not filed within the time limits established by Code of Civil Procedure section 472b; what is disputed is whether the trial court acted properly in refusing to grant relief required to allow the later filing of the proposed amended cross-complaint.

Itzhakis motion to dismiss, based on Code of Civil Procedure section 581, subdivision (f)(2), called upon the trial court to determine whether Ozeris failure to comply with Code of Civil Procedure section 472b justified dismissal of the action. The court properly considered whether there were valid grounds for noncompliance with the statutory limitations; determining there were not, it dismissed the case. Given the express language of the statutes at issue, this was not an abuse of discretion.

With respect to the motion for relief from the dismissal, Ozeri invoked the courts discretion pursuant to Code of Civil Procedure section 473, subdivision (b). Itzhaki contends that such relief is not available in this case, because the mandatory language of Code of Civil Procedure section 472b prohibits the trial court from exercising its discretion to reverse the dismissal. On the facts in this case, we need not reach the issue. If the trial court was without discretion, the properly entered dismissal would stand. If the court had the authority to consider the motion under Code of Civil Procedure section 473, subdivision (b), as it did, it was well within its discretion in determining that Ozeris counsels declaration, asserting that he properly waited for notification by the trial court as to the filing of the amended complaint, did not justify his failure to ascertain the statutory limits on remand. There was no abuse of discretion by the trial court in determining that there had been no excusable neglect and that the delay was unduly prejudicial to Itzhaki.

DISPOSITION

The judgment is affirmed. Respondent is to recover costs of appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WOODS, J.

We concur:

JOHNSON, Acting P.J.

ZELON, J.

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[1] As stated in this courts opinion filed May 2, 2005, at footnote 1, Business and Professions Code section 7031 provides: Except as provided in subdivision (e), no person engaged in the business or acting in the capacity of a contractor, may bring or maintain any action, or recover in law or equity in any action, in any court of this state for the collection of compensation for the performance of any act or contract where a license is required by this chapter without alleging that he or she was a duly licensed contractor at all times during the performance of that act or contract, regardless of the merits of the cause of action brought by the person, except that this prohibition shall not apply to contractors who are each individually licensed under the chapter but failed to comply with Section 7029.

[2] Ozeri did not attempt to file an amended pleading until more than four months after the 30-day period specified in Code of Civil Procedure section 472b.