Barth v. Amer. River HealthPro Credit Union CA3

Filed 3/14/13 Barth v. Amer. River HealthPro Credit Union CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

ROBERTA L. BARTH, C067717

Plaintiff and Appellant, (Super. Ct. No. 07AS04796)

v.

AMERICAN RIVER HEALTHPRO CREDIT UNION,

Defendant and Respondent.

Plaintiff Roberta L. Barth appeals from a judgment dismissing with prejudice her action against defendant American River HealthPro Credit Union and unnamed “Doe” defendants based on Barth’s delay in prosecuting the action (Code Civ. Proc., § 583.410 et seq.).1 On appeal, Barth contends the trial court lacked authority to dismiss the action with prejudice, and abused its discretion in granting the motion to dismiss because she

1 Undesignated section references are to the Code of Civil Procedure.

1

made a credible showing of excuse for failing to serve the complaint until nearly three years had passed, because American River HealthPro Credit Union was not prejudiced. The first contention has merit: under these circumstances, the applicable statutes only allow a dismissal “without prejudice.” (§§ 581, subd. (b)(4), 583.410.) We reverse the judgment and modify the order of dismissal. BACKGROUND On October 22, 2007, Barth (in pro se) filed a complaint alleging causes of action (among others) for fraud and deceit, breach of contract, misrepresentation, unfair business practice, abuse of process, constructive trust, and negligence. All of Barth’s claims arise from American River HealthPro Credit Union’s alleged wrongful foreclosure of her Fair Oaks home. In April 2008, the trial court sent Barth a notice of case management conference and order to appear. Barth responded by letter that, until recently, she lacked funds necessary to proceed with the litigation, but now “I will serve the defendants and determine what I need to file with the court to get this case on track . . . .” In October 2008, attorney Ronald L. Melluish filed a case management statement on Barth’s behalf. Melluish reported that the defendant had not been served because “pro per plaintiff unable to serve” and he had “just subbed in. The complaint needs to be amended. I took the case because this plaintiff does make out a case for a very wrongful foreclosure. [¶] I would ask the court’s indulgence in setting the matter over at least 60 days to another [case management conference], during which time I might complete the amended comp[laint] and send it out for service.” American River HealthPro Credit Union merged into SAFE Credit Union (SAFE) on July 1, 2009; as a result, American River HealthPro Credit Union ceased to exist. The complaint was never amended. Barth served American River HealthPro Credit Union with the original complaint and an amended summons on October 20, 2010.