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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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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,                                                 B252333

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC362390)
         v.

ALL WEST IRON, INC.,

         Defendant and Respondent.



         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.


                                          _______________________
       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

                                               6
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.




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