Giants Entertainment v. Buckley

Filed 5/17/06 Giants Entertainment v. Buckley CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from an order of the Superior Court of Los Angeles County, Edward A. Ferns, Judge. Appeal dismissed.

Tristram Buckley, in pro. per., for Defendant and Appellant.

Glicker & Associates and Brian Glicker, for Giants Entertainment, Corp. and David Dadon, Plaintiffs and Respondents.

__________________

Tristram Buckley, an active member of the California State Bar appearing in this matter in propria persona, purports to appeal from an order of the trial court denying his motion to dismiss the legal malpractice action filed by his former employer Giants Entertainment, Inc. (Giants) and its controlling shareholder David Dadon for failure to serve the summons and complaint within three years of the commencement of the action. (Code Civ. Proc., § 583.210.) In addition to their respondents' brief, Giants and Dadon have filed a motion to dismiss the appeal and, asserting the appeal is frivolous, a request for sanctions. Pursuant to California Rules of Court, rule 27(e)(3) and (e)(4), we issued an order to show cause, giving Buckley written notice the court was considering granting the motion to dismiss and imposing sanctions and set a combined oral argument on the motion to dismiss and the issue of sanctions.

1. Buckley's Initial Appeal and His Motion to Dismiss the Complaint

In the prior appeal in this case, Dadon v. Buckley (Nov. 17, 2004, B173950) [nonpub. opn.], we reversed the trial court's order denying Buckley's motion to set aside the default and default judgment entered against him because no substantial evidence supported the court's finding that Buckley had been personally served with the summons and complaint filed by Dadon and Giants. We remanded with directions to the trial court to enter a new order vacating the default and default judgment and to conduct further proceedings not inconsistent with our opinion.

On March 21, 2005 Buckley moved to dismiss the action on the ground more than three years had elapsed since the filing of the action on June 1, 2001 without proper service of the summons and complaint. (Code Civ. Proc., § 583.210.) The trial court denied the motion on April 14, 2005, finding that the time during which the matter was pending on appeal (from the filing of the notice of appeal on March 9, 2004 until our remittitur issued on January 25, 2005) was properly excluded from the three-year period within which service must be effected. (See Code Civ. Proc., § 583.240 [â€