Filed 12/16/14 Talamentes v. All 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

ALL WEST IRON, INC.,

Defendant and Respondent.

 B252333

 (Los Angeles County

 Super. Ct. No. BC362390)

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

Berle, Judge. Reversed.

Law Offices of Lisa L. Maki, Lisa 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.

_______________________
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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 court with notice of the closure of the

bankruptcy case. More than 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 Procedure1

section 583.310 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 BACKGROUND AND PROCEDURAL HISTORY

On November 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 compensation, 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 pendency of Talamentes’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 “Bankruptcy Case”). On

January 20, 2011, All West Iron removed Talamentes’s action against it and all other 

defendants 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 

Procedure.
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proceeding in that 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 Procedure, rule 2002, 

and requested that notices in the Bankruptcy Case be served on his counsel by mail.

On February 4, 2011, Talamentes filed a motion to remand his action against the 

two non-bankrupt defendants, Mekikyan and AWI Builders, to state court. On May 11, 

2011, the bankruptcy court granted the motion for remand as to Mekikyan and AWI 

Builders and ordered the action remanded to state court to proceed against those two 

defendants only.

2 Talamentes’s action against All West Iron remained pending 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 longer 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 stated in full: “Since it appears that no 

further matters are required that this case remain open, or that the jurisdiction of this 

Court continue, 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 an order remanding Talamentes’s action 

against All West Iron to state court. Additionally, there is no indication in the record 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 Builders and Mekikyan on the causes of action alleged against them. 

(Talamentes v. All West Iron, Inc. (Apr. 16, 2014, B244433) [nonpub. opn.].)
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order or the October 31, 2011 order to the clerk of the superior court, or otherwise 

provided the superior court with notice of these 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 these 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 

months 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 Bankruptcy 

Case had been closed, and attached a copy of the PACER system docket for the case. 

The docket included the following final entry: “Bankruptcy Case Closed – NO 

DISCHARGE (Mendoza, Maria Patricia) (Entered: 10/31/2011).” It did not include any 

information 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 status. Talamentes argued in 

the motion that, because the bankruptcy proceedings had been closed, he was entitled 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 

motion to consider whether the case should be dismissed under section 583.310 for 

failure to bring the action to trial within five years. On July 1, 2013, after further hearing 

on the motion, the court found that Talamentes had not met the requirement of bringing 

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 return the case to active status, ordered 

that the action against All West Iron be dismissed pursuant to section 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.
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On October 22, 2014, this Court requested that the parties submit supplemental 

briefs 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 appeal for lack of 

jurisdiction or reverse the judgment as void. In their supplemental briefs, Talamentes 

contends, and All West Iron concurs, that the superior court automatically reacquired 

jurisdiction over the action when the bankruptcy court entered its 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 judicial 

consideration of claims,” and may not be “‘“‘conferred by consent, waiver, 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 or matter before it.’ 

[Citation.] Thus, in the absence of subject matter jurisdiction, a trial court has no power 

‘to hear or determine [the] case.’ [Citation.] And any judgment or order rendered by a 

court lacking subject matter jurisdiction is ‘void on its face. . . .’ [Citation.]” (Varian 

Medical Systems, Inc. v. Delfino (2005) 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 ensuing judgment is void”].) “‘“[T]he adequacy 

of the court’s subject matter jurisdiction must be addressed whenever 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 jurisdiction 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, which 
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sets forth the procedure for removals and remands under the 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 action 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”].) 

After an order of remand is entered by the federal district 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, unless 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 removed 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 the clerk of the bankruptcy 

court ever mailed 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 jurisdiction 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 void 
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judgment, the reviewing court’s jurisdiction is limited to reversing 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 court’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.