Filed 12/16/14 Talamentes v. A ll West Iron CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

IGNACIO TALAMENTES ,
Plaintiff and Appellant
,

v.

AL L WEST IRON, I NC. ,
Defendant and Respondent

. B 252333
(Los Angeles County Super. Ct. No. BC 362390 )

APPEAL from a judgment of the Superior Court of Los Angeles County
, Elihu
Berle , Judge

. Reversed

. Law Offices of Lisa L. Maki, Lis a L. Macki and Allison M. Schulman for Plaintiff and Appellant. Law Offices of Roger O. Vega and Roger O. Vega; Huprich Law Firm and Joseph J. Huprich for Defendant and Respondent

.

_______________________2

Appellant Ignacio Talamentes filed this wage and hour action against his former employer, respondent All West Iron, Inc., and other related entities in state court

. During the pendency of the litigation , All West Iron filed a petition for bankruptcy and removed
the entire action to bankruptcy court. The bankruptcy court later closed the bankruptcy proceedings , but it did not enter an order remanding the action against All West Iron to the superior court , nor did it provide the superior cou rt with notice of the closure of the bankruptcy case

. More t han five years after the state court action was filed , Talamentes brought a motion in the superior court to return his case to active status. The superior

court denied the motion and dismissed the action pursuant to Code of Civil Procedure 1
section 583.31 0 for failure to bring the case to trial within five years. We conclude that
the superior court never reacquired jurisdiction over the action against All West Iron following removal , and accordingly, reverse the order of dismissal as void

.

FACTUAL BACKGRO UND AND PROCEDURAL HISTORY
On N ove mber 22, 2006, Talamentes filed this wage and hour action against All
West Iron and its owner, Robert Mekikyan
, in Los Angeles County Superior Court. The complaint alleged claims based on a failure to pay overtime compens ation , to provide meal and rest periods, and to furnish itemized wage statements

. Talamentes later amended his complaint to add AWI Builders , Inc. , a related company owned by Mekikyan, as a defendant. On December 14, 2010, during the pende ncy of Talamen tes’s state court action
, All West Iron filed a petition for bankruptcy protection under Chapter 7 of the United States Bankruptcy Code
, and commenced a bankruptcy case in the United States Bankruptcy Court for the Central District of California ( the “Bank ruptcy Case”)

. On January 20, 2011, All West Iron removed Talamentes’s action against it and all other
defendant s to the bankruptcy court, resulting in the commencement of an adversary

1 Unless otherwise stated, all further statutory references are to the Code of Civil Pr ocedure.3

proceeding in th at court ( the “ Adversary Proceeding ” )

. The following day , All West Iron filed a copy of the notice of removal with the clerk of the superior court , and served a copy on Talamentes

. Talamentes thereafter filed a request for special notice of the bankruptcy proceedings pursuant to Federal Rule of Bankruptcy P rocedure, rule 2002
, and requested that notices in the Bankruptcy Case be served on his counsel by mail

. On February 4, 2011, Talamen tes filed a motion to remand his action a gainst the

two non

- bankrupt defenda nts, Mekikyan and AWI Builders, to state cou rt. On May 11 , 2011, the bankruptcy court granted the motion for remand as to Mekikyan and AWI
Builders and orde red the action remanded to state court to proceed against those two defendants only

. 2 Talamentes’s action against All West Iron remained pendi ng in the bankruptcy court as an adversary proceeding

. On June 17, 2011, the bankruptcy court entered an order closing the Adversary Proceeding. That order provided as follows: “The complaint filed in the above case has been disposed of and is no longe r pending due to either the dismissal of the main case or the entry of a judgment in the Adversary Proceeding. Since it appears that no further matters are required that this adversary proceeding remain open, it is ordered that the adversary proceeding is closed.” On October 31, 2011, the bankruptcy court entered an order closing the Bankruptcy Case. That order s tated in full: “Since it appears that no further matters are required that this case remain open, or that the jurisdiction of this
Court contin ue, it is ordered that the Trustee is discharged from his/her duties in this case, his/her bond is exonerated, and the case is closed.” The bankruptcy court never entered a n order remanding Talamentes’s action against All We st Iron to state court

. Addit ionally, there is no indication in the re cord that the clerk of the bankruptcy court ever sent a certified copy of the either the June 17, 2011

2 Talamentes’s action against Mekikyan and AWI Builders later proceeded to trial in state court on theories of alter ego and joint employer liability , resulting in a judgment in favor of both defendants. In a prior appeal filed by Talamentes, we affirmed the judgment in favor of AWI Build ers and Mekikyan on the causes of action alleged against them. ( Talamentes v. All West Iron , Inc. (Apr. 16, 2014, B244433) [nonpub. opn.].)4

order or the October 31, 2011 order to the clerk of the superior court , or otherwise provided the superior court with notice of the se orders

. Although Talamentes had filed

a request for special notice of the bankruptcy proceedings, his counsel also was never served with notice of the entry of the se orders by either the bankruptcy court or counsel
for All West Iron

. On April 5, 2012, Talamentes’s counsel checked the status of the Bankruptcy Case through the federal judiciary online Public Access to Court Electronic Records (PACER) system, and discovered at that time that the Bankruptcy Case had been closed five

mon ths earlier

. On April 16, 2012, Talamentes filed written objections to a proposed statement of decision issued by the superior court in the trial against Mekikyan and AWI Builders. In his objections, Talamentes advised the superior court that the Bankrup tcy Case had been closed
, and attached a copy of the PACER system docket for the c ase

. The docket included the followi ng final entry : “Bankruptcy Case Closed

– NO DISCHARGE (Mendoza, Maria Pat ricia) (Entered: 10/31/2011).” It did not include any
informa tion about the prior closure of the Adversary Proceeding
, nor did it make any
reference to an order of remand

. On April 26, 2013, Talamentes filed with the superior court a noticed motion for
an order returning his case against All West Iron to active st atus. Talamentes argued in
the motion that, because the bankruptcy proceedings had been closed, he was ent itled to proceed with his action against All West Iron in state court

. On May 31, 2013, the superior court continued the hearing on Talamentes’s

mo tion to consider whether the case should be dismissed under section 583.310 for failure to bring the action to tria l within five years. On July 1, 2013, after further hearing on the motion, the court found that Talamentes had not met the requirement of br inging
his case against All West Iron to trial within the statutory five

- year period

. Based on that finding, the superior court denied the motion to retur n the case to active status, ordered
that the action against All West Iron be dismissed pursuant to s ection 583.310 , and
entered a final order of dismissal on December 26, 2013

. Following the denial of a motion for reconsideration, Talamentes filed this appeal from the order of dismissal

.5

On October 22 , 2014, this Court requested that the parties submi t supplemental
brie fs addressing the following issues: (1) Whether the superior court had jurisdiction over the state court action against All West Iron at the time it entered its order of dismissal; and (2) If not, whether this Court should dismiss the a ppeal for lack of jurisdiction or reverse the judgment as void. In the ir supplemental brief s , Talamentes
contend s , and All West Iron concur s , that the superior court automatically reacquired jurisdiction over the action when the bankruptcy court entered i ts October 31, 2011
order closing the Bankruptcy Case notwithstanding the absence of an order of remand

.

DISCUSSION

“ Subject matter jurisdiction is a fundamental requirement for j udicial consideration of claims, ” and may not be “ ‘“ ‘ conferred by consent, w aiver, agreement, acquiescence, or estoppel. ’”’” ( Saffer v. JP Morgan Chase Bank (2014) 225 Cal.App. 4th
1239 , 1248 ( Saffer ).) “ ‘The principle of “subject matter jurisdiction” relates to the inherent authority of the court involved to deal with the case o r matter before it.’ [Citation.] Thus, in the absence of subject matter jurisdiction, a trial court has no power ‘to hear or det ermine [the] case.’ [Citation.] And a ny judgment or order rendered by a court lacking subject matter juris diction is ‘void on its face. . . . ’ [Citation.]” ( Varian Medical Systems, Inc. v. Delfino (20 05) 35 Cal.4th 180, 196 ( Varian ) ; see also People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660 [“[w] hen a court lacks jurisdiction in a fundamental sense, an en suing judgment is void ”]

. ) “‘ “[T]he adequacy
of the court’ s subject matter jurisdiction must be addressed wheneve r that issue comes to the court’s attention,”’” and “ may be considered for the first time on appeal .” ( Saffer , supra , at p. 1248.) “[A] s the question of juri sdiction is always fundamental [citation],

‘ a court has inherent power to inquire into jurisdiction of its own motion, regardless of whether the question is raised by the litigants. ’” ( In re Estevez (2008) 165 Cal.App. 4th
1445 , 1457

- 1458 , citing Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 302

. ) All West Iron removed Talamentes’s action from state court to bankruptcy court pursuant to 28 U.S.C. § 1452

. Federal Rule of Bankruptcy Procedure, rule 9027
, which6

sets forth the pr ocedure for removals and remands under th e statute, provides, in pertinent part, as follows: “ Promptly after filing the notice of removal, the party filing the notice shall file a copy of it with the clerk of the court from which the claim or cause of act ion is
removed.

. . . The parties shall proceed no further in that court unless and until the claim
or cause of action is remanded. ” (Fed. Rules Bankr. Proc., rule 9027(c ) , 28 U.S.C ; see In re Eyecare of So. Cal

. (Bankr. C.D. Cal. 2001) 258 B.R. 765, 768 [ upon the removal of

an action from state court, “[t] he parties are then enjoined from proceeding any further in that court unless and until a remand is ordered by the bankruptcy court ”] ; In re Princess Louise Corp. (Bankr. C.D. Cal. 1987) 77 B.R. 766, 771 [ “ the removing party may choose to remove all claims or causes of action from the state court, thereby depriving the state court of all further jurisdiction until such time as there may be a remand ”]

. )
A fter an order of remand is entered by the federal di strict court , “ jurisdiction is

not returned to the state court until the district court clerk mails a certified copy of the
remand order to the clerk of the state court. ” ( Spanair S.A. v. McDonnell Douglas Corp. (2009) 172 Cal.App. 4th 348 , 356 ( Spanair ) ; see also In re Hotel Mt. Lassen, Inc. (Bankr.
E.D. Cal. 1997) 207 B. R. 935, 942, fn. 11 [ state court may not proceed with a remanded
action until the clerk of the bankruptcy court mails a certified copy of the remand order to
the clerk of the state court ].) Accordingly, u nless and until a certified copy of the remand
order is mailed to the superior court by the clerk of the district court , the superior court lacks jurisdiction to proceed. ( Spanair , supra , at pp. 358

- 359 [ state court’s jurisdiction

over rem oved action was suspended under section 583. 340 until the federal court clerk mailed a certified copy of the order remanding the action to the state court].) In this case, there is no indication in the record that th e clerk of the bankruptcy

court ever ma iled a certified copy of an order remanding Talamentes’s action against
All West Iron to the superior court , or that the bankruptcy court ever entered an order
of remand as to All West Iron at any time . As a result, the superior court never reacquired jur isdiction over Talamentes’s action against All West Iron following the removal of the action to bankruptcy court, and its order dismissing the action under section 583.310 is void on its face. “ ‘When, as here, there is an appeal from a voi d7

judgment, the reviewing court’ s jurisdiction is limited to reversin g the trial court’s void
acts.’ [Citation.] ” ( Varian , supra , 35 Cal.4th at p. 200

. ) We therefore reverse the superior court’s December 26 , 2013 order of dismissal as void.

DISPOSITION
The superior c ourt’s December 26, 2013 order of dismissal is reversed. Each party shall bear its own costs on appeal

.

ZELON, J.

We concur:

PERLUSS, P. J.

WOODS, J.