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
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Case Number:
*******1077
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Filing Date:
08/31/2017
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Case Status:
Pending - Other Pending
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Courthouse:
Stanley Mosk Courthouse
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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
6/13/2019: Minute Order - Minute Order (Hearing on Ex Parte Application for Continuance of Trial)
4/13/2018: Proof of Personal Service
4/13/2018: Answer
12/11/2018: Notice of Rejection - Pleadings - Notice of Rejection - Pleadings
12/13/2018: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment
12/17/2018: Notice (name extension) - Notice of Association of Counsel
1/15/2019: Statement of Damages (Personal Injury or Wrongful Death) - Statement of Damages (Personal Injury or Wrongful Death)
1/24/2019: Request for Dismissal - Request for Dismissal
2/28/2019: Minute Order - Minute Order (Non-Jury Trial)
3/27/2019: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)
6/4/2019: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment
1/18/2018: Proof of Personal Service
12/29/2017: Amendment to Complaint (Fictitious/Incorrect Name)
8/31/2017: Complaint
8/31/2017: Civil Case Cover Sheet
10/27/2017: Answer
9/13/2017: Summons - on Complaint
8/31/2017: Notice of Case Assignment - Limited Civil Case
Docket Entries
- 09/03/2020
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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
- 10/03/2019
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Hearingat 08:30 AM in Department 94 at 111 North Hill Street, Los Angeles, CA 90012; Order to Show Cause Re: (name extension)
- 06/13/2019
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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
- 06/13/2019
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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)
- 06/13/2019
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DocketMinute Order (Hearing on Ex Parte Application for Continuance of Trial)
- 06/13/2019
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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)
- 06/13/2019
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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
- 06/13/2019
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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
- 06/07/2019
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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
- 06/07/2019
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DocketOrder Granting Continuance of Trial; Filed by: Fusion Physical Therapy, a California corporation (Plaintiff); As to: Fusion Physical Therapy, a California corporation (Plaintiff)
- 10/05/2017
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DocketProof of Personal Service; Filed by: Fusion Physical Therapy, a California corporation (Plaintiff); As to: Garry S. Malin (Defendant); Service Cost Waived: No
- 09/13/2017
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DocketSummons on Complaint; Filed by:
- 09/13/2017
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DocketUpdated -- Summons on Complaint: Name Extension changed from on Complaint to on Complaint; Status changed from Filed to Issued and Filed
- 09/07/2017
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DocketUpdated -- Garry S. Malin (Defendant): First Name: blank; Last Name: blank; Organization Name: Garry S. Malin; Middle Name: blank
- 09/01/2017
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DocketCase assigned to Hon. Elaine Lu in Department 77 Stanley Mosk Courthouse
- 09/01/2017
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DocketNon-Jury Trial scheduled for 02/28/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 77
- 09/01/2017
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DocketOSC - Failure to File Proof of Service scheduled for 09/03/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 77
- 08/31/2017
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DocketComplaint; Filed by: Fusion Physical Therapy, a California corporation (Plaintiff); As to: Garry S. Malin (Defendant)
- 08/31/2017
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DocketCivil Case Cover Sheet; Filed by: Fusion Physical Therapy, a California corporation (Plaintiff)
- 08/31/2017
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DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk
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.
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