Filed 8/27/24 McBride v. Bergh CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

KATHLEEN WILLIAMS 

McBRIDE,

Defendant and Appellant,

v.

KATHERINE BERGH,

Defendant and Respondent.

FELIX LOPEZ et al.,

 Real parties in interest.

 B323937

 Los Angeles County

 Super. Ct. No. (BC703537) 

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Stephen I. Goorvitch, Judge. Affirmed.
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Century City Law Group and Robin Mashal for Appellant 

Hector Canino.

Pettit Kohn Ingrassia Lutz & Dolin, Damian M. Dolin and 

Annie F. Fraser for Defendant and Respondent.

No appearance for real parties in interest.

____________________

Identifying the actors in this unusual drama is the first 

step.

Hector Canino is the appellant, but he was not a party to 

the case in the trial court. Rather, in the trial court the case 

began when plaintiffs Felix Lopez and Luis Rodriguez sued 

defendant Kathleen McBride. None of these people – not Lopez, 

not Rodriguez, and not McBride – is a party in this appeal.

Canino entered the picture when he approached defendant 

Kathleen McBride. He used undue influence to procure the 

signature of this elderly and infirm woman on a document 

Canino claimed was an assignment of legal rights. Canino then 

purported to file a cross-complaint in McBride’s name against a 

stranger to the lawsuit: Katherine Bergh.

Bergh is the respondent in this appeal.

When the trial court finally discovered Canino’s mischief, it 

dismissed his supposed cross-complaint as an improper pleading. 

Over a year later, Canino filed a motion to set aside the 

dismissal. We affirm the court’s proper denial of Canino’s 

motion. Citations are to the Code of Civil Procedure.

I

The underlying case is captioned “Lopez et al. v. McBride.” 

Felix Lopez and Luis Rodriguez sued Katherine McBride in 2018 

for various claims that are not relevant to our decision. The case 
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proceeded slowly. The court originally set the trial for November 

4, 2019 but continued this date several times.

McBride was elderly and was suffering from physical and 

mental ailments. She entered a hospital in March 2020, and then 

was discharged to a care facility that was not her home.

McBride badly wanted to return home. Canino promised 

that he would speed her departure from the facility in exchange 

for a signed document titled “Assignment of Chose in Action.” 

We refer to this paper as the “Document.”

The Document states that Canino is authorized “to bring 

suit against [Katherine] Bergh either in McBride’s name, or as 

assignee of McBride.”

McBride signed the Document on or about April 18, 2020 

without involvement by her legal counsel, although she was 

represented at the time. Canino did not give McBride a copy of 

the Document; she did not obtain a copy until discovery 

unearthed the Document in 2022.

McBride’s attorney successfully moved to be relieved as 

counsel on June 22, 2021.

On June 30, 2021, over a year after McBride signed the 

Document, Canino filed a cross-complaint against Katherine 

Bergh in Lopez et al. v. McBride.

Canino crafted his supposed cross-complaint in a devious 

way that made it difficult, and indeed practically impossible, to 

understand his central role in the pleading.

The caption listed the filing party as McBride, followed only 

by a street address in Pico Rivera. It stated at the top that it was 

filed by McBride “in pro per.” On the signature page, some 23 

pages later, McBride’s name was hand printed above a signature 
4

block that included her name and “By Hector Canino, Jr. 

Attorney in Fact per U/A/D dated April 18, 2020.”

At oral argument in our court, Canino’s appellate counsel 

could not explain the meaning of “U/A/D.”

The cross-complaint did not reference the Document in any 

way. The only mention of any legal relationship between 

McBride and Canino in the cross-complaint was a single sentence 

on page 15: “McBride then appointed Canino to serve as 

McBride’s power of attorney.”

On July 1, 2021, Canino filed the summons on crosscomplaint. It, too, listed the cross-complainant as McBride, gave 

no counsel name, and recited the same Pico Rivera address with 

no other contact information. The summons omitted Canino’s 

name.

A week later, McBride’s new legal counsel, Armen Mitilian, 

formally appeared on her behalf. On July 14, 2021, Mitilian 

requested the cross-complaint be dismissed without prejudice and 

the trial court entered the dismissal. 

Another year passed.

On July 22, 2022, new counsel for Canino filed a motion to 

vacate or set aside the dismissal of the cross-complaint. In place 

of the phrase “per U/A/D,” this pleading listed Canino’s name 

followed by “per Assignment of Chose in Action.” Canino also 

sought to file an amended cross-complaint.

The court held a hearing on Canino’s motion, took the 

matter under submission, and issued a minute order denying the 

motion. It is from this order that Canino appeals.

The trial court’s order runs for about ten pages and 

includes several grounds for denying the motion. The judge noted 

that Canino’s original cross-complaint was filed without leave of 
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court, more than two years after the initial trial date in the 

matter had been set. Had the cross-complaint not been 

withdrawn, the order stated, the trial court would have dismissed 

the cross-complaint on its own, pursuant to section 436, 

subdivision (b).

II

The trial court acted properly. We affirm.

A

Bergh filed a motion to dismiss in this court, claiming the 

order appealed from is not an appealable order. This motion we 

deny. The trial court order Canino appeals from denied his 

motion made pursuant to § 473 (b). “An order denying a motion 

to vacate a judgment or dismissal under section 473 is appealable 

... .” (Leader v. Health Industries of America, Inc. (2001) 89 

Cal.App.4th 603, 611.)

We review the trial court’s ruling on a motion to vacate for 

an abuse of discretion. (McClain v. Kissler (2019) 39 Cal.App.5th 

399, 413). We review the ruling of the trial court, not its 

rationale. We may affirm that ruling on any proper basis 

supported by the record, whether or not the trial court relied on 

it. (Ross v. Superior Court (2022) 77 Cal.App.5th 667, 681.)

B

Canino’s cross-complaint was filed over two years after an 

initial trial date had been set in the case. Under section 428.50, 

subdivision (c), any person, party or not, who wishes to file a 

cross-complaint at that late stage must obtain leave of court –

even if the trial date is later vacated or continued. (Loney v. 

Superior Court (1984) 160 Cal.App.3d 719, 722-723.) Canino did 

not do so.
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An attorney who represented McBride, and who had 

properly appeared in the case as her counsel, requested dismissal 

of a cross-complaint that purported to be McBride’s: the crosscomplaint had been filed in her name, in pro per. Nothing in the 

cross-complaint indicated that Canino was acting under anything 

other than the power of attorney. He did not attach a copy of the 

Document to the cross-complaint, or so much as allude to its 

existence. There was no reason for the court, or for McBride’s 

actual attorney, to think McBride did not have the power to 

withdraw the cross-complaint. Indeed, withdrawal of the crosscomplaint appeared entirely appropriate because its initial filing 

had been improper.

Canino protests that he did not receive notice of the 

withdrawal. This was his own doing. He did not ask to be 

substituted in as a party. He did not formally appear in the case, 

nor did he alert the court or anyone else that he might be entitled 

to join the case as a separate party until over a year after the 

cross-complaint was dismissed. He did not list a contact phone 

number or email address on the caption, as is required by 

California Rules of Court, rule 2.111. Rather, he hid behind 

McBride, filing documents in her name “in pro per” and listing 

himself, if at all, only as her “attorney in fact.”

Canino argues that he was in pro per at the time he filed 

the cross-complaint and until shortly before he filed his motion to 

set aside or vacate the dismissal. This is beside the point. As the 

trial court accurately noted in its order, self-represented litigants 

must comply with the Code of Civil Procedure. (ViaView, Inc. v. 

Retzlaff (2016) 1 Cal.App.5th 198, 208.)
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C

The parties disagree on other points discussed in the trial 

court’s minute order. As the trial court’s decision is fully 

supported by sections 428.50, subdivision (c) and 436, subdivision 

(b), we need not address these additional arguments.

Because we uphold the trial court’s decision not to reverse 

the dismissal of the cross-complaint, Canino is not a party in the 

underlying case. We deny his request that he be allowed to file 

an amended cross-complaint.

DISPOSITION

We affirm the judgment and award costs to respondent 

Katherine Bergh.

WILEY, J.

We concur:

STRATTON, P. J.

VIRAMONTES, J.