BANK OF AMERICA NATIONAL TRUST SAVINGS ASSOCIATION v. YUROSEK (1997)

Court of Appeal, Fifth District, California.

BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION, Plaintiff and Appellant, v. Michael A. YUROSEK et al., Defendants and Respondents.

No. F023081.

Decided: January 28, 1997

Haight, Brown & Bonesteel, and Rita Gunasekaran, Santa Monica, Kane McClean & Mengshol and Steven M. McClean, Fresno, Office of General Counsel, Bank of America, N.T. & S.A. and Michael J. Halloran, San Francisco, for Plaintiff and Appellant. Klein, Wegis, DeNatale, Goldner & Muir and Kirk S. Tracey, David L. Saine, Law offices of Young Wooldridge and Larry R. Cox, Bakersfield, for Defendants and Respondents.

OPINION

“I am going to show that this motion is dropped.”   When a court makes this pronouncement at the time set for the hearing on the motion, and gives no further explanation of this statement or of the court's action, what does the court mean?   Is the court declaring that the moving party has abandoned the motion and cannot reset the motion for a later hearing date, and thus achieving the functional equivalent of a denial of the motion with prejudice?   Is the court instead simply declaring that the hearing on the motion is being deleted from that day's calendar of hearings, and that the motion will not be heard unless and until the moving party takes steps to set a later hearing date?   Much can depend on the answer to this question.   In the present case, the appropriate allocation of several hundred thousand dollars may depend on the answer to this question, i.e., on the meaning of “this motion is dropped.”   Sometimes, as in the present case, the motion is so critical that the scheduled hearing date is preceded by a flurry of settlement negotiations.   When the “dropping” of the motion is the result of one or more of the attorneys appearing at the scheduled hearing and advising the court in good faith that the parties have just reached a settlement, even though the terms of that settlement have not yet been reduced to a final written and executed document and are not announced at the hearing and made part of the record of the hearing, what happens when the parties are subsequently unable or unwilling to agree on the wording of a written settlement agreement?   Is the party whose motion was “dropped” then left with a pending case but with no motion?   In this case we hold that when there is no statute, no statewide Rule of Court, or no applicable local court rule defining or explaining the meaning of the term “drop,” and when the court's ruling does not otherwise explain or clarify the court's intended meaning of its use of the word “drop,” a court which “drops” a motion is deleting a hearing on that motion from the court's calendar, and is not declaring the motion to be forever abandoned by the moving party or denying the motion with prejudice.

FACTS

Respondents Michael Yurosek, Madeline Yurosek, M. David Yurosek, Theresa Marie Yurosek, Charles Lyons, Jr., and Mary Lou Lyons breached two promissory notes executed in favor of appellant Bank of America National Trust and Savings Association (the Bank).   On October 23, 1991, the Bank sued the Yuroseks and the Lyons to recover the money due and owing to it under the promissory notes and the attorney's fees incurred by it in enforcing those notes and to foreclose on the two deeds of trust securing the promissory notes.   The Bank moved for summary judgment or for summary adjudication of its causes of action.   The parties resolved the matter by a stipulation for summary adjudication.   The trial court reviewed the stipulation for summary adjudication, approved it, and ordered that the real property be sold by judicial foreclosure and that the respondents “are Defendants against whom a deficiency judgment may be ordered.”   The court expressly retained jurisdiction to determine the amount of any deficiency.

Pursuant to the trial court's order, the Sheriff of Kern County held a judicial foreclosure sale of the subject property on June 9, 1993.   The Bank purchased the property by credit bidding and received a certificate of sale on the real estate sold subject to redemption.   Since the proceeds of the judicial foreclosure sale fell short of the amount due to the Bank under the promissory notes, the Bank gave notice on July 21, 1993, that it would seek a deficiency judgment of at least $745,610.60.   The Bank's application was filed well within three months of the June 9, 1993, foreclosure sale, as required by Code of Civil Procedure section 726, subdivision (b).   The hearing on the application for a deficiency judgment was originally set for August 27, 1993.   The hearing date was continued numerous times, by stipulation of the parties, due to settlement negotiations.   Ultimately the hearing was scheduled for March 16, 1994.

On March 15, 1994, the Bank's counsel extended an offer in writing to the Yuroseks' counsel to settle the matter for $375,000 plus the defendants' relinquishment of redemption rights in the real property.   A telephone conversation ensued in which it was agreed that the respondents would pay $375,000 to settle the case.   On the afternoon of March 15, 1994, defense counsel sent by facsimile a letter purporting to accept a “non-joint and several” structured deficiency payment on behalf of the Yuroseks and the Lyons.   This letter was not read by the Bank's counsel prior to his attending the March 16 hearing.   At the March 16 hearing, neither the Yuroseks' nor the Lyons' counsel made an appearance.   Mr. Alvin Harrell, the Bank's counsel, did appear.   He informed the court in good faith that the parties had reached a settlement as to the deficiency issue, and added:

“In light of the fact that opposing counsel is not here, I do not feel comfortable articulating the settlement onto the record today.   I proposed [sic ] that we, instead of doing that, just submit a stipulation to the Court.”

Mr. Harrell thus indicated that something further needed to be done before the case could be wrapped up.   The court appeared to acknowledge this when it stated:

“That would be fine, Mr. Harrell.   I have no problem with that, so I am going to show that this motion is dropped.”

At that point, Mr. Harrell thanked the court and left.

Following a review by Mr. Harrell of the defendants' March 15, 1994, letter purporting to accept a non-joint and several structured deficiency payment, discussions ensued concerning the issue of joint and several liability, as well as attorney's fees and interest.   On April 21, 1994, Mr. Harrell sent a proposed stipulation for entry of judgment to counsel for the Yuroseks and counsel for the Lyons.   Mr. Harrell stated his belief that the stipulation accurately reflected “the parties' agreed upon settlement terms, including the term that defendants' obligation is and shall remain joint and several.”   The settlement agreement was not executed by the parties.

Following Mr. Harrell's departure from his firm to join the District Attorney's Office, Ms. Catherine Bennett assumed control of the case on behalf of the Bank.   Ms. Bennett telephoned the Yuroseks' counsel, Mr. Kirk Tracey, on or about May 10, 1994, to follow up on the settlement.   Mr. Tracey informed Ms. Bennett that he did not believe the parties had agreed that the Yurosek and Lyons defendants would be jointly and severally liable for the settlement amount.   Mr. Tracey added that he would not sign a settlement agreement containing such a provision.   Ms. Bennett then advised that she would place the deficiency hearing back on calendar.   Mr. Tracey requested that “it be put off at least a month so that he could bring a motion to enforce the settlement agreement without joint and several liability.”   On May 24, 1994, Ms. Bennett spoke again with Mr. Tracey by telephone.   Mr. Tracey stated that he was attempting to reach an agreement with the Lyons regarding simultaneous payment by the Lyons and Yuroseks of a share of the settlement.

Meanwhile, the court in April 1994 ordered that the Bank dismiss the action by May 20, 1994, or appear personally to show cause why the court should not dismiss the action.   Notice was apparently never mailed by the clerk's office to the various counsel.   No one appeared, and the court dismissed the action.   The court entered a judgment of dismissal on or about May 24, 1994.   The Bank did not receive notice of entry of the dismissal.   The Yuroseks' counsel learned of the dismissal only after reading about it in a newspaper.   On August 3, 1994, the Bank moved to vacate the judgment of dismissal.   The Bank pointed out that it neither received the court's order to show cause, nor the subsequently entered order of dismissal of the action, until July 21, 1994, when one of the respondents informed the Bank that the case had been dismissed.   The Bank's motion was granted.   A formal order vacating the judgment of dismissal was entered by the court.

On the same day that the trial court entered its formal order vacating the judgment of dismissal, the Bank renoticed a hearing on its prior timely filed application for a deficiency judgment.   In its notice, the Bank stated that its application “for a deficiency judgment will be heard, based upon the Application previously filed on July 21, 1993,” and incorporated by reference that notice and application.   The Lyons and the Yuroseks opposed the Bank's application for a deficiency judgment.   At the hearing on the Bank's application for a deficiency judgment, the trial court expressed its concern about the procedure adopted by the Bank in “renoticing” its previously timely filed application.   The court stated:

“I see it from time to time.   I have no idea how that has come into practice or come into being.   I have never seen any case anywhere, any statute that says one can, quote ‘renotice,’ close quote, simply by filing a couple of pages and somehow revive a motion which has been dropped rather than continued.”

The Bank's trial counsel, Ms. Catherine Bennett, attempted to explain to the court that a matter being “dropped” from the calendar could not be tantamount to a dismissal, since the court itself saw the need to make a subsequent order dismissing the case after purportedly notifying the parties.   Ms. Bennett stated:

“I don't think it means anything because the action was initiated and dropped.   It was not like a dismissal of the case.   I think it is more analogous to filing an action which stops the statute of limitations, having a trial set, dropping the trial from the calendar and then resetting it.   It doesn't affect the statute of limitations.”

Ms. Bennett also pointed out to the court that the Bank had attempted in good faith to settle the case.   She argued that the Bank's counsel could well have pressed forward with the application at the March 16, 1994, hearing, but that he instead placed the common interest of all parties in reaching a settlement ahead of the Bank's self interest in obtaining the entry of a deficiency judgment.   The trial court denied the Bank's renoticed application for a deficiency judgment on October 31, 1994.

In December 1994, the Bank moved for relief pursuant to Code of Civil Procedure section 473 and for reconsideration of the October 31, 1994, minute order.   The Bank's motions for relief and reconsideration were heard on January 9, 1995, and were denied the next day.

APPELLANT'S CONTENTIONS

Appellant Bank argues that the court's October 31, 1994, order denying appellant's “renoticed” application for a deficiency judgment was erroneous.   The crux of the dispute between appellant and respondents about this ruling may be fairly simply stated as follows.  Code of Civil Procedure section 726, subdivision (b) provides that the court shall render a deficiency judgment under certain circumstances “upon application of the plaintiff filed at any time within three months of the date of the foreclosure sale.”   The foreclosure sale took place on June 9, 1993.   On July 21, 1993, less than three months after the foreclosure sale, appellant filed an application for a deficiency judgment.   This application or “motion” was the subject of the court's March 16, 1994, statement that “the motion is dropped.”   After the parties were subsequently unsuccessful in reducing the purported settlement to writing, and immediately after appellant succeeded in vacating the May 24, 1994, dismissal which had been entered without notice to the parties, appellant filed on September 29, 1994, its “Renotice of Plaintiff's Application for Deficiency Judgment” (hereinafter the “renoticed application”).   The renoticed application gave all parties notice that on October 27, 1994, appellant's “application ․ for a deficiency judgment will be heard, based upon the Application previously filed on July 21, 1993․”   Appellant argues that because it filed its initial application within three months of the foreclosure sale, the time limitation set forth in Code of Civil Procedure section 726, subdivision (b) was satisfied.   Appellant argues that the “dropping” which occurred on March 16, 1994 was a dropping of the hearing on the application from the court's March 16 hearing calendar, and that appellant was entitled to renotice the hearing on that application for a later hearing date.   Appellant further argues that to construe the court's March 16 pronouncement any other way would in essence deprive it of its due process right to have its application heard.   Respondents, on the other hand, argue that the words “this motion is dropped” constituted a judicial acknowledgment that appellant on March 16, 1994, abandoned its July 21, 1993, application for a deficiency judgment.   According to respondents, there was no pending application between the March 16 “dropping” of the July 21, 1993, application and the September 29, 1994, renoticed application, and the latter was simply a second and untimely application for a deficiency judgment.   Under respondents' view, the September 29, 1994, renoticed application was itself an application for a deficiency judgment.   It was filed more than three months after the June 9, 1993, foreclosure sale and therefore was untimely under Code of Civil Procedure section 726, subdivision (b).   As we shall explain, we find merit in appellant's due process argument and reject respondents' arguments.   Before we do so, however, we first briefly address other purported “issues” raised by appellant.

Appellant's brief states:

“The issues on appeal may be framed as follows:

“1. Under the clear language of the governing statute, is a plaintiff's claim for a deficiency judgment timely as long as the plaintiff's application was filed within three months of the foreclosure sale, as it was done here?

“2. Since the filing of an action stops the running of the statute of limitations, is the trial court's dismissal of the Bank's timely filed pending lawsuit an act in excess of its jurisdiction?

“3. Does the trial court's summary dismissal of the plaintiff's meritorious lawsuit as a result of the court's misinterpretation of its own prior imprecise language violate the plaintiff's due process rights?

“4. Are the defendants who repeatedly sought and obtained continuances of the plaintiff's timely filed and duly noticed deficiency hearing, purportedly in order to reach a settlement, estopped from asserting that the plaintiff's claim is statute barred?

“5. Is the trial court's failure to grant relief to the plaintiff from the consequence of its attorney's mistakes prejudicial error warranting relief from this court?”

Appellant's issues 1, 2, 4 and 5 may easily be disposed of.   Accordingly, we will first address those issues, and then turn to the one significant issue in this case-whether the court's refusal to consider appellant's application for a deficiency judgment on its merits deprived appellant of due process of law.

ISSUES 1, 2, 4 AND 5

Appellant's issue 1 is not an issue at all.   It is merely a rhetorical question.   There is no dispute about the fact that appellant filed an application for a deficiency judgment on July 21, 1993, and that this application was filed within three months of the June 9, 1993, foreclosure sale and therefore was timely.   The issue in this case is whether that application still existed and was still pending after the court pronounced on March 16, 1994, that “this motion is dropped.”

Appellant's issue 2 is not pertinent to this case.   Appellant's complaint was filed on October 23, 1991.   It was dismissed on May 24, 1994, apparently either because the court thought the case was moot or for lack of prosecution.   The action itself was not dismissed because of any statute of limitations.   When appellant learned in July of 1994 about the May 24 dismissal, appellant moved promptly to vacate the May 24 dismissal order on the basis that appellant had never received notice of the court's order to show cause why the case should not be dismissed, and that appellant's counsel had never received notice of the May 24 dismissal order itself until July 20 or 21, 1994.   Appellant's motion to vacate the May 24 dismissal was originally set for a hearing on August 26, 1994, but the hearing was continued to September in order to accommodate the judge's vacation.   On September 19, 1994, the court granted the motion to vacate the dismissal.   The court then on September 29 made its formal order vacating the dismissal, and on that same date appellant filed its renoticed application for a deficiency judgment.

 To the extent that appellant may be contending that its July 21, 1993, application for a deficiency judgment was itself an “action,” appellant is mistaken.  “There can be but one form of action for the recovery of any debt or the enforcement of any right secured by mortgage upon real property or an estate for years therein, which action shall be in accordance with the provisions of this chapter.”  (Code Civ. Proc., § 726, subd. (a).)  Appellant's action was the complaint filed on October 23, 1991.   An application for a deficiency judgment is simply a motion brought by the plaintiff after the court has directed a sale of the encumbered property and has named “the defendants against whom a deficiency judgment may be ordered following the proceedings prescribed this section.”  (Code Civ. Proc., § 726, subd. (b).  See also Korea Exchange Bank v. Yang (1988)) 200 Cal.App.3d 1471, 1474, 246 Cal.Rptr. 619 (application for a deficiency judgment is a “motion for a deficiency judgment” and need not be personally served on a defendant who was already served with the complaint), and Code Civ. Proc., § 1003 (“[a]n application for an order is a motion”).   Furthermore, even if appellant were correct in arguing that the filing of an application for a deficiency judgment should be treated as the filing of an action, and that the filing of an initial application should toll the three month limitation of Code of Civil Procedure section 726, subdivision (b) in the same manner in which the filing of a complaint tolls a statute of limitations (see Barrington v. A.H. Robins Co. (1985) 39 Cal.3d 146, 216 Cal.Rptr. 405, 702 P.2d 563 and Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932, 136 Cal.Rptr. 269, 559 P.2d 624), appellant fails to explain how the “dropping” or abandonment of the application itself (as opposed to the “dropping” of a scheduled hearing on that application) would not similarly be analogous to the dismissal of a complaint.   As the court itself stated in rejecting this analogy at the October 27, 1994, hearing:

“I think what's missing in your hypothetical is if you file a case to toll the statute and the case is dismissed, which to me is the equivalent of a drop, you can't refile it.   The statute-I mean assuming the statute runs, that's it.”

Appellant's issue 4 ignores the fact that appellant never raised estoppel as an issue at the October 27, 1994, hearing on appellant's renoticed application for a deficiency judgment.   Furthermore, respondents never asked appellant to “drop” or abandon its application altogether.   Respondents merely asked that the March 16 hearing be taken off calendar.   Respondents' March 15, 1994, letter purporting to accept appellant's settlement offer stated in part:

“Based upon defendants' acceptance of the Bank's settlement offer, it is our desire that the currently scheduled Motion for a Deficiency Judgment, currently scheduled in Department 12 of the Kern County Superior Court at 8:30 a.m. tomorrow, March 16, 1994, will be taken off the calendar and that no appearances are necessary.”

Appellant's issue 5 ignores the fact that appellant never at any time sought relief from the court's March 16, 1994 pronouncement that “this motion is dropped.”   Appellant sought relief only from the court's October 31, 1994, order denying appellant's renoticed application for a deficiency judgment.   Appellant expressly argued to the court that “[t]he only proceeding from which Plaintiff can and does seek relief is the minute order of October 31, 1994.”   Thus, if the court's March 16 pronouncement was in fact a valid order declaring appellant's application for a deficiency judgment to be abandoned, and not merely an order “dropping” from the court's March 16 calendar the hearing on that application, relief from the October 31, 1994, order denying the renoticed application for a deficiency judgment would not help appellant.   Appellant would still be left without any pending application for a deficiency judgment, and the time within which appellant could file such an application has long since passed.

We now turn to the real issue in this case-appellant's due process argument.

THE COURT'S 10/31/94 ORDER DENYING APPELLANT'S APPLICATION FOR A DEFICIENCY JUDGMENT DENIED APPELLANT DUE PROCESS OF LAW

 The court on October 27, 1994, explained what it had meant when it said on March 16, 1994, “this motion is dropped.”   The court explained at the October 27, 1994, hearing on the renoticed application for a deficiency judgment that the “dropping” of a motion was analogous to the dismissal of a case.   The court explained that if there was a statute of limitations barring an untimely filed action, then “that's it.”   The fact that an earlier action may have been timely filed and then dismissed does not magically rescue an untimely second action.   Similarly, the court was of the view that if an application for a deficiency judgment was timely filed and then “dropped,” any subsequent application for a deficiency judgment would still have to be filed within three months of the date of the foreclosure sale in order to be timely under Code of Civil Procedure section 726, subdivision (b).   Simply attempting to “renotice” the dropped motion would not, according to the court, “somehow revive a motion which has been dropped rather than continued.”

 We have no real quarrel with the logic of the court's ruling.   Given the court's own understanding of the meaning of its statement that “this motion is dropped,” the court's ruling on October 27 denying appellant's renoticed application made perfect sense.   A litigant should not be permitted to evade a statutory time limit governing the filing of a particular motion by filing the motion, “dropping” it, and then filing it again at his or her leisure sometime after the statutory time limit has passed.  (See Sperber v. Robinson (1994) 26 Cal.App.4th 736, at pp. 745-746, 31 Cal.Rptr.2d 659.)   Our concern, however, is that the court's intention on March 16, 1994, to treat appellant's application for a deficiency judgment as having been abandoned by appellant was not adequately conveyed by the court to appellant on that date.

It is apparent, and beyond dispute, that appellant never at any time consciously and intentionally decided to forgive any deficiency and to forego its efforts to recover that deficiency.   Appellant's obvious intent was either to settle the case or, if no settlement could be reached, to obtain a deficiency judgment from the court.   A number of factors lead to the inescapable conclusion that if appellant had been aware at any time within six months after March 16 that the words “this matter is dropped” were meant by the court to constitute a judicial pronouncement that the court deemed appellant's application to have been abandoned by appellant on that date, appellant would have sought Code of Civil Procedure section 473 relief from that pronouncement.

First, the deficiency amount was substantial.   Appellant presented evidence that respondents' indebtedness was $1,287,842.60 on the date of sale, that the property's fair value on that date was $542,232, that the deficiency amount prior to a January 1994 payment was the difference between these two figures ($745,610.60), and that after a payment of $212,769.11 was made on behalf of respondents in January of 1994 the amount of the deficiency still exceeded $530,000.¹  Respondents filed no opposition papers to the original application while the parties attempted to negotiate a settlement.   If a hearing on the merits of the application had actually taken place on March 16, appellant presumably would have obtained a judgment for more than $530,000.   At the October 27 hearing on the renoticed application, respondents' only defense was that the renoticed application was untimely because the original application had been “dropped” on March 16.   Respondents never contended that no deficiency existed.

Second, appellant on or about April 22, 1994, sent a letter to the Yuroseks' counsel which included with it a proposed “Stipulation for Entry of Judgment.”   The proposed “Stipulation” included a provision calling for respondents to pay appellant $385,500 plus interest from March 16, 1994.   The letter stated:

“Pursuant to my April 20th telephone conversation with Mr. Tracey, enclosed please find a Stipulation for Entry of Judgment.   We believe that the Stipulation accurately reflects the parties' agreed upon settlement terms, including the term that defendants' obligation is and shall remain joint and several.   Please review the Stipulation and then contact [ ] me to discuss the same.   We look forward to resolving this matter without further delay.”

It is apparent from this letter, and is not disputed by anyone, that the parties were still attempting to settle the case even after March 16.

Third, as soon as appellant's counsel became aware of the court's May 24, 1994, order dismissing the entire action, appellant moved to vacate that dismissal.   The final line of appellant's points and authorities filed on August 3, 1994, in support of appellant's “Motion to Vacate Judgment of Dismissal” argued “Plaintiff ․ respectfully requests that this court vacate the order dismissing this action, so that it might renotice the deficiency hearing or bring a motion to enforce the settlement.”

Fourth, appellant's counsel (Ms. Bennett) argued at the October 27 hearing on the renoticed application that on March 16 the original application “was dropped from the calendar just like a trial would have been dropped from the calendar.”   At a later hearing on appellant's Code of Civil Procedure 473 motion for relief from the court's October 31 order denying appellant's renoticed application, appellant also presented the declaration of attorney Alvin M. Harrell III, who had appeared at the March 16 hearing on behalf of appellant.   Mr. Harrell's declaration stated in part:

“I have been a practicing attorney for the past five years.   It has been my experience that it is a customary practice to take motions, hearings and/or trials off calendar and reset them by subsequent notice of motion, stipulation or the filing of an at issue memorandum.   I am unaware of any instance where a party has been barred from pursuing a timely filed claim, action or proceeding because the hearing on the said claim, action or proceeding was dropped from the calendar and subsequently renoticed.”

A statewide Rule of Court and some local rules appear to be in accord with Mr. Harrell's observation that a court will sometimes simply take a matter off its calendar and allow that matter to be reset at a later time.   For example, rule 321(d) of the California Rules of Court states in part:  “If no party appears at a law and motion hearing the court may drop the matter from the calendar, to be reset only upon motion.”   Rule 3.4 of the Local Rules of the San Francisco Superior Court states:  “The procedures governing motions in the Law and Motion Department are specified in the Law and Motion Manual.”   Rule 12(c) of that Law and Motion Manual states in part:  “A motion which has been taken or ordered off calendar may be rescheduled for hearing only by written notice served in compliance with Code of Civil Procedure Section 1005.”   Rule 9.21 of the Rules of the Superior Court of Los Angeles County pertains to motions for summary judgment and summary adjudication.   Subdivision (f) of rule 9.21 states in part:  “A failure to file a separate statement with the moving papers will result in a denial without prejudice, a continuance, or an order taking the motion off calendar.”   The authors of Weil & Brown, California Practice Guide:  Civil Procedure Before Trial state at page 9(I)-63 (Rev. # 1 1996), at section 9:120.1:  “If the parties notify the court before the hearing that they have stipulated to the matter going off calendar, the court will generally so order.”   In the present case the parties did not notify the court of anything until appellant's counsel appeared for the hearing and advised the court in good faith that the case had settled.   Nevertheless, it is clear that respondents themselves expected that the hearing would simply be taken off calendar.   Respondents' March 15, 1994, letter to appellant stated in part:

“Based upon defendants' acceptance of the Bank's settlement offer, it is our desire that the currently scheduled Motion for a Deficiency Judgment, currently scheduled in Department 12 of the Kern County Superior Court at 8:30 a.m. tomorrow, March 16, 1994, will be taken off the calendar and that no appearances are necessary.”

There was no mention by the court or by any party of any Kern County Superior Court local rule.   Now on appeal respondents Yurosek call our attention to rule 9 of the Kern County Superior Court's “Rules for the Administration of Civil Litigation.”   Rule 9 states in relevant part:

“Except as provided in Rule 7, all law and motion matters will be heard on the date set unless continued by stipulation of the parties or dropped, withdrawn, or taken off calendar by the moving party at least 3 court days prior to the hearing. any agreed continuance or withdrawal of a law and motion matter within 3 court days of the hearing must be approved by the judge hearing the motion.   If within 3 court days of the hearing, the moving party ‘drops', ‘withdraws', or ‘takes off calendar,’ or otherwise abandons any motion without court approval the same will nevertheless be considered on the merits and ruled upon.” 2

This rule does not appear to have been followed.   The first sentence would not apply because nothing happened “at least 3 court days prior to the hearing.”   The second sentence would not apply because there was no “agreed continuance or withdrawal” of the application.   The only agreement was that the application would be taken off the calendar.   According to the third sentence, if the court deemed appellant to be abandoning the application for a deficiency judgment, the court should have ruled on the application on its merits.   Had the court done so, appellant would have had the deficiency judgment it sought.

Kern County's local rule 9 makes no attempt to define “drop.”   Indeed, its use of quotation marks around the word “drops” implies that the term may not have any precise meaning.   The only definition of “drop” in Black's Law Dictionary (6th ed.1990) states that “drop” is a term used “[i]n English practice.”   The definition has nothing whatsoever to do with law and motion practice in California courts or in other American courts.³

 The Fourteenth Amendment to the United States Constitution provides in relevant part that no state shall “deprive any person of life, liberty, or property without due process of law.”   Due process “is a flexible concept which must be tailored to the requirements of each particular situation.”  (Moyal v. Lanphear (1989) 208 Cal.App.3d 491, 502, 256 Cal.Rptr. 296.)  “The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.”   (Cafeteria Workers v. McElroy (1961) 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230.)   Nevertheless, “the rudiments of fair play include notice, an opportunity to respond, and a hearing.”  (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 654, 183 Cal.Rptr. 508, 646 P.2d 179.)   In our view, the court's March 16 use of the phrase “this motion is dropped,” without any further clarification that the court was deeming the motion to be forever abandoned by appellant, and was not simply “dropping” the hearing on the motion from the court's March 16 calendar, was insufficient to give appellant notice of the true meaning of that pronouncement.   Accordingly, we hold that when there is no statute, no statewide Rule of Court, or no applicable local court rule explaining the meaning of the term “drop,” and when the court's ruling does not otherwise explain or clarify the court's intended meaning of its use of the word “drop,” a court which “drops” a motion is deleting a hearing on that motion from the court's calendar, and is not declaring the motion to be forever abandoned by the moving party or denying the motion with prejudice.   We further hold that, under the unique facts of this case, when the court denied appellant's renoticed application for a deficiency judgment, and did so solely because it deemed appellant's original and timely filed application to have been abandoned by appellant on March 16 and deemed the later renoticed application to be untimely, the court deprived appellant of due process of law by denying appellant a hearing on its timely filed application.

The judgment is reversed.   The case is remanded to the superior court with instructions to hold a hearing on the merits of appellant's application for a deficiency judgment.   Costs to appellant.

FOOTNOTES

1.   The property securing respondents' debt was the 645-acre “Stoller Ranch” located in southeastern Kern County.

2.   The “Rule 7” referred to in the first clause of Rule 9 pertains to demurrers and motions for judgment on the pleadings.   Rule 7 has no applicability to this case because we are not here concerned with a demurrer or a motion for judgment on the pleadings.

3.   The definition found in Black's at page 487 reads as follows:“In English practice, when the members of a court are equally divided on the argument showing cause against a rule nisi, no order is made, i.e., the rule is neither discharged nor made absolute, and the rule is said to drop.   In practice, there being a right to appeal, it has been usual to make an order in one way, the junior judge withdrawing his judgment.”

ARDAIZ, Presiding Justice.

VARTABEDIAN and BUCKLEY, JJ., concur.