ALEJANDRO FUENTES-AGUILAR VS MIRAGE AUTO SALES & LEASING, INC

Tentative Rulings

Case Number: 18STLC00326    Hearing Date: March 8, 2021    Dept: 26

Fuentes-Aguilar v. Mirage Auto Sales & Leasing, et al.

MOTION TO VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiffs Alejandro Fuentes-Aguilar and Eira Geronimo Santiago’s Motion to Set Aside Dismissal is GRANTED. THE DISMISSAL ENTERED ON FEBRUARY 5, 2021 IS HEREBY VACATED. TRIAL IS RESET FOR APRIL 7, 2021 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

Plaintiff Alejandro Fuentes-Aguilar and Eira Geronimo Santiago (“Plaintiffs”) filed the instant action for fraud and recovery on automobile dealership bond against Defendant Mirage Auto Sales and & Leasing, Inc. (“Defendant Mirage”) and Hudson Insurance Company (“Defendant Hudson”) on February 2, 2018. On February 5, 2018, the Court set an Order to Show Cause regarding failure to file proof of service for February 5, 2021. Proofs of service were filed with respect to Defendants on June 12 and 15, 2018.

Defendant Mirage filed an Answer on June 22, 2018 and Defendant Hudson filed an Answer on August 23, 2018. On July 1, 2019, Plaintiffs substituted in their current attorney as counsel of record. On February 26, 2020, Plaintiffs filed the First Amended Complaint in this action. On June 16, 2020, Plaintiffs added Susan Demirci and Igya Demirci as defendants by “Doe” amendment. On August 27, 2020, Plaintiffs dismissed Defendant Hudson from the action.

On February 5, 2021, no party showed up for the Order to Show regarding failure to file proof of service and the Court dismissed the First Amended Complaint without prejudice. The Court also vacated the April 7, 2021 trial date.

Plaintiffs filed the instant Motion to Vacate Dismissal on February 8, 2021. To date, no opposition has been filed.

Discussion

There are multiple grounds to set aside the dismissal of the action on February 5, 2021. First, as Plaintiffs point out, the Court had no authority to dismiss for failure to file proof of service under Code of Civil Procedure section 583.250 because proof of services as to Defendants Mirage and Hudson were timely filed. The Court finds the order of dismissal void and vacates it pursuant to Code of Civil Procedure section 473, subdivision (d) (“[t]he court may, upon motion of the injured party, or its own motion . . . set aside any void judgment or order.”].)

Additionally, relief from the dismissal is available under Code of Civil Procedure, section 473, subdivision (b). Under this statute, an application for relief must be made no more than six months after entry of the order from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) The Motion was timely brought just three days after the dismissal was entered and is supported by an attorney affidavit that states Plaintiffs’ new attorney did not get notice of the February 5, 2021 Order to Show Cause. (Motion, Johnson Decl., ¶4.) Therefore, Plaintiffs are also entitled to an order vacating the dismissal under Code of Civil Procedure, section 473, subdivision (b).

Conclusion

Plaintiffs Alejandro Fuentes-Aguilar and Eira Geronimo Santiago’s Motion to Set Aside Dismissal is GRANTED. THE DISMISSAL ENTERED ON FEBRUARY 5, 2021 IS HEREBY VACATED. TRIAL IS RESET FOR APRIL 7, 2021 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Moving party to give notice.

Case Number: 18STLC00326    Hearing Date: February 27, 2020    Dept: 26

Fuentes-Aguilar v. Mirage Auto Sales & Leasing, Inc., et al.

MOTION TO COMPEL RESPONSES TO REQUEST FOR PRODUCTION

AND REQUEST FOR SANCTIONS

(CCP § 2031.300)

TENTATIVE RULING:

Plaintiff Alejandro Fuentes-Aguilar’s Motion to Compel Responses to Requests for Production and Request for Sanctions IS GRANTED. DEFENDANT MIRAGE AUTO SALES & LEASING, INC. IS TO SERVE VERIFIED RESPONSES TO THE REQUEST FOR PRODUCTION OF DOCUMENTS WITHOUT OBJECTION WITHIN 20 DAYS’ NOTICE OF THIS ORDER. DEFENDANT MIRAGE AUTO SALES & LEASING, INC. AND ITS COUNSEL OF RECORD ARE JOINTLY AND SEVERALLY TO PAY SANCTIONS OF $375.00 TO PLAINTIFF’S COUNSEL WITHIN 30 DAYS’ NOTICE OF THIS ORDER.

ANALYSIS:

Plaintiff Alejandro Fuentes-Aguilar (“Plaintiff”) propounded Requests for Production, Set One on Defendant Mirage Auto Sales & Leasing, Inc. (“Defendant”) on November 7, 2019. (Motion, Johnson Decl., ¶4 and Exh. 1.) Despite numerous extensions of the time to respond, Defendant has not served responses to date. (Id. at ¶¶4-15.) On December 18, 2019, Plaintiff filed the instant Motion to Compel Responses to the Request for Production and Request for Sanctions (“the Motion”). To date, no opposition has been filed.

There is no requirement for a prior meet and confer effort before a motion to compel initial responses can be filed. (Code Civ. Proc., § 2031.300.) Further, the motion can be brought any time after the responding party fails to provide the responses. (Code Civ. Proc., § 2031.300.) In light of Defendant Mirage Auto Sales & Leasing, Inc.’s failure to provide responses, Plaintiff is entitled to an order that Defendant Mirage Auto Sales & Leasing, Inc.serve verified responses, without objection, to the Requests for Production.

The Court also finds Defendant Mirage Auto Sales & Leasing, Inc.’s failure to timely respond a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d).) Sanctions are appropriate under Code of Civil Procedure sections 2023.010 and 2023.030, and have been properly noticed. However, the amount sought is excessive given the simplicity of this motion. The request for sanctions is granted jointly and severally against Defendant Mirage Auto Sales & Leasing, Inc. and its counsel of record in the amount of $375.00 based on one hour of attorney time billed at $375.00. (Motion, Johnson Decl., ¶6.)

Therefore, Plaintiff Alejandro Fuentes-Aguilar’s Motion to Compel Responses to Requests for Production and Request for Sanctions IS GRANTED. DEFENDANT MIRAGE AUTO SALES & LEASING, INC. IS TO SERVE VERIFIED RESPONSES TO THE REQUEST FOR PRODUCTION OF DOCUMENTS WITHOUT OBJECTION WITHIN 20 DAYS’ NOTICE OF THIS ORDER. DEFENDANT MIRAGE AUTO SALES & LEASING, INC. AND ITS COUNSEL OF RECORD ARE JOINTLY AND SEVERALLY TO PAY SANCTIONS OF $375.00 TO PLAINTIFF’S COUNSEL WITHIN 30 DAYS’ NOTICE OF THIS ORDER.

Moving party to give notice.

Case Number: 18STLC00326    Hearing Date: February 13, 2020    Dept: 26

Fuentes-Aguilar v. Mirage Auto Sales & Leasing, Inc., et al.

MOTION TO DEEM REQUESTS FOR ADMISSION ADMITTED; SANCTIONS

(CCP § 2033.280)

TENTATIVE RULING:

Plaintiff Alejandro Fuentes-Aguilar’s Motion to Deem Requests for Admission Admitted Against Defendant Mirage Auto Sales & Leasing, Inc. is GRANTED. DEFENDANT MIRAGE AUTO SALES & LEASING, INC. TO PAY SANCTIONS OF $375.00 TO PLAINITFF’S COUNSEL WITHIN 30 DAYS’ NOTICE OF THIS ORDER.

ANALYSIS:

On November 7, 2019, Plaintiff Alejandro Fuentes-Aguilar (“Plaintiff”) served Requests for Admissions, Set One, on Defendant Mirage Auto Sales & Leasing, Inc. (“Defendant Mirage”). (Motion, Johnson Decl., ¶4 and Exhs. 1-3.) To date, Plaintiff has not received verified responses to the discovery requests from Defendant Mirage. (Id. at ¶5.) As a result, Plaintiff filed the instant Motion to Deem the Truth of Matters Specified in Requests for Admissions Admitted Against Defendant Mirage and for Monetary Sanctions (the “Motion”) on December 18, 2019.

In violation of Code of Civil Procedure section 2033.250, Defendant Mirage has not provided verified responses to the discovery propounded by Plaintiff. Nor has Defendant Mirage filed an opposition to the Motion. There is no requirement for a prior meet and confer effort before a motion to deem requests for admission can be filed. (Code Civ. Proc., § 2033.280.) Further, the motion can be brought any time after the responding party fails to provide the responses. (Code Civ. Proc., § 2033.280.)

The Court finds the failure to respond a misuse of the discovery process. Sanctions are appropriate under Code of Civil Procedure sections 2023.010, 2023.030 and 2033.280 and have been properly noticed. However, the amount of sanctions requested is excessive given the simplicity of this unopposed Motion. Sanctions are granted against Defendant Mirage in the amount of $375.00, based on one hour of attorney time billed at $375.00 per hour. (Motion, Johnson Decl., ¶6.)

Based on the foregoing, Plaintiff Alejandro Fuentes-Aguilar’s Motion to Deem Requests for Admission Admitted Against Defendant Mirage Auto Sales & Leasing, Inc. is GRANTED. DEFENDANT MIRAGE AUTO SALES & LEASING, INC. TO PAY SANCTIONS OF $375.00 TO PLAINITFF’S COUNSEL WITHIN 30 DAYS’ NOTICE OF THIS ORDER.

Moving party to give notice.