This case was last updated from Los Angeles County Superior Courts on 08/20/2019 at 08:11:47 (UTC).

FUSION PHYSICAL THERAPY, A CALIFORNIA CORPORATION VS GARRY S. MALIN

Case Summary

On 08/31/2017 FUSION PHYSICAL THERAPY, A CALIFORNIA CORPORATION filed a Contract - Other Contract lawsuit against GARRY S MALIN. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is ELAINE LU. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******1077

  • Filing Date:

    08/31/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

ELAINE LU

 

Party Details

Plaintiff

FUSION PHYSICAL THERAPY A CALIFORNIA CORPORATION

Defendants

GARRY S. MALIN

AGUILAR MICHELLE

MALIN GARRY S

Attorney/Law Firm Details

Plaintiff Attorney

GOLDBERG STEVEN PAUL

Defendant Attorney

MALIN GARRY SCOTT

 

Court Documents

Minute Order - Minute Order (Hearing on Ex Parte Application for Continuance of Trial)

6/13/2019: Minute Order - Minute Order (Hearing on Ex Parte Application for Continuance of Trial)

Proof of Personal Service

4/13/2018: Proof of Personal Service

Answer

4/13/2018: Answer

Notice of Rejection - Pleadings - Notice of Rejection - Pleadings

12/11/2018: Notice of Rejection - Pleadings - Notice of Rejection - Pleadings

Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

12/13/2018: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

Notice (name extension) - Notice of Association of Counsel

12/17/2018: Notice (name extension) - Notice of Association of Counsel

Statement of Damages (Personal Injury or Wrongful Death) - Statement of Damages (Personal Injury or Wrongful Death)

1/15/2019: Statement of Damages (Personal Injury or Wrongful Death) - Statement of Damages (Personal Injury or Wrongful Death)

Request for Dismissal - Request for Dismissal

1/24/2019: Request for Dismissal - Request for Dismissal

Minute Order - Minute Order (Non-Jury Trial)

2/28/2019: Minute Order - Minute Order (Non-Jury Trial)

Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

3/27/2019: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

6/4/2019: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

Proof of Personal Service

1/18/2018: Proof of Personal Service

Amendment to Complaint (Fictitious/Incorrect Name)

12/29/2017: Amendment to Complaint (Fictitious/Incorrect Name)

Complaint

8/31/2017: Complaint

Civil Case Cover Sheet

8/31/2017: Civil Case Cover Sheet

Answer

10/27/2017: Answer

Summons - on Complaint

9/13/2017: Summons - on Complaint

Notice of Case Assignment - Limited Civil Case

8/31/2017: Notice of Case Assignment - Limited Civil Case

10 More Documents Available

 

Docket Entries

  • 09/03/2020
  • Hearingat 08:30 AM in Department 94 at 111 North Hill Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

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  • 10/03/2019
  • Hearingat 08:30 AM in Department 94 at 111 North Hill Street, Los Angeles, CA 90012; Order to Show Cause Re: (name extension)

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  • 06/13/2019
  • DocketOrder to Show Cause Re: Entry of Default Judgment/Dismissal scheduled for 10/03/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 06/13/2019
  • DocketUpdated -- Order Granting Continuance of Trial: Status Date changed from 06/07/2019 to 06/13/2019; As To Parties changed from Fusion Physical Therapy, a California corporation (Plaintiff) to Fusion Physical Therapy, a California corporation (Plaintiff)

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  • 06/13/2019
  • DocketMinute Order (Hearing on Ex Parte Application for Continuance of Trial)

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  • 06/13/2019
  • DocketEx Parte Application for Continuance of Trial; Filed by: Fusion Physical Therapy, a California corporation (Plaintiff); As to: Fusion Physical Therapy, a California corporation (Plaintiff)

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  • 06/13/2019
  • DocketHearing on Ex Parte Application for Continuance of Trial scheduled for 06/13/2019 at 01:30 PM in Stanley Mosk Courthouse at Department 94 updated: Result Date to 06/13/2019; Result Type to Held

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  • 06/13/2019
  • DocketOn the Court's own motion, Non-Jury Trial scheduled for 06/27/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 94 Not Held - Advanced and Vacated on 06/13/2019

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  • 06/07/2019
  • DocketHearing on Ex Parte Application for Continuance of Trial scheduled for 06/13/2019 at 01:30 PM in Stanley Mosk Courthouse at Department 94

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  • 06/07/2019
  • DocketOrder Granting Continuance of Trial; Filed by: Fusion Physical Therapy, a California corporation (Plaintiff); As to: Fusion Physical Therapy, a California corporation (Plaintiff)

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21 More Docket Entries
  • 10/05/2017
  • DocketProof of Personal Service; Filed by: Fusion Physical Therapy, a California corporation (Plaintiff); As to: Garry S. Malin (Defendant); Service Cost Waived: No

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  • 09/13/2017
  • DocketSummons on Complaint; Filed by:

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  • 09/13/2017
  • DocketUpdated -- Summons on Complaint: Name Extension changed from on Complaint to on Complaint; Status changed from Filed to Issued and Filed

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  • 09/07/2017
  • DocketUpdated -- Garry S. Malin (Defendant): First Name: blank; Last Name: blank; Organization Name: Garry S. Malin; Middle Name: blank

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  • 09/01/2017
  • DocketCase assigned to Hon. Elaine Lu in Department 77 Stanley Mosk Courthouse

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  • 09/01/2017
  • DocketNon-Jury Trial scheduled for 02/28/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 77

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  • 09/01/2017
  • DocketOSC - Failure to File Proof of Service scheduled for 09/03/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 77

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  • 08/31/2017
  • DocketComplaint; Filed by: Fusion Physical Therapy, a California corporation (Plaintiff); As to: Garry S. Malin (Defendant)

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  • 08/31/2017
  • DocketCivil Case Cover Sheet; Filed by: Fusion Physical Therapy, a California corporation (Plaintiff)

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  • 08/31/2017
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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Tentative Rulings

Case Number: 17STLC01077    Hearing Date: December 02, 2019    Dept: 94

Fusion Physical Therapy v. Malin, et al.

MOTION TO SET ASIDE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff Fusion Physical Therapy’s Motion to Set Aside Dismissal of the Action is GRANTED. THE DISMISSAL ENTERED ON OCTOBER 3, 2019 IS HEREBY VACATED.

ORDER TO SHOW CAUSE RE: DEFAULT JUDGMENT / DISMISSAL SET FOR FEBRUARY 3, 2020 AT 10:30 AM IN DEPARTMENT 94.

ANALYSIS:

On August 31, 2017, Plaintiff Fusion Physical Therapy (“Corsini”) filed the instant action for breach of contract, fraud and related claims against Defendants Garry S. Malin, APC (“Malin”) and Michelle Aguilar (“Defendant”). Plaintiff ultimately dismissed Malin from the action and obtained entry of default against Defendant on June 4, 2019. On June 13, 2019, the Court set an Order to Show Cause Re: Entry of Default Judgment / Dismissal for October 3, 2019. On October 1, 2019, Plaintiff filed papers in support of its request for default judgment against Defendant. However, as Plaintiff failed to appear at the Order to Show Cause, the Court dismissed the action without prejudice on October 3, 2019. Plaintiff filed the instant Motion to Vacate Dismissal on November 5, 2019. To date, no opposition has been filed.

Plaintiff seeks relief from the dismissal pursuant to 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 is timely brought less than six months after dismissal of the action and supported by an attorney affidavit of fault. Plaintiff’s attorney explains that he failed to calendar the OSC and having filed the papers in support of the request for default judgment, did not think anything further was required. (Motion Goldberg Decl., ¶¶4-7.) Based on the timely request to vacate supported by an attorney affidavit of fault, Plaintiff’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON OCTOBER 3, 2019 IS HEREBY VACATED.

ORDER TO SHOW CAUSE RE: DEFAULT JUDGMENT / DISMISSAL SET FOR FEBRUARY 3, 2020 AT 10:30 AM IN DEPARTMENT 94.

Moving party to give notice.