This case was last updated from Los Angeles County Superior Courts on 05/08/2021 at 01:37:31 (UTC).

MARI MENDEZ VS PHILIP IADEVAIA

Case Summary

On 05/03/2018 MARI MENDEZ filed a Personal Injury - Uninsured Motor Vehicle lawsuit against PHILIP IADEVAIA. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is GEORGINA T. RIZK. The case status is Disposed - Dismissed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******6729

  • Filing Date:

    05/03/2018

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Personal Injury - Uninsured Motor Vehicle

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

GEORGINA T. RIZK

 

Party Details

Plaintiff

MENDEZ MARI

Los Angeles, CA 90044

Defendant

IADEVAIA PHILIP

Attorney/Law Firm Details

Defendant Attorney

OVERTON SARAH LEE

 

Court Documents

Minute Order - Minute Order (Non-Jury Trial)

10/31/2019: Minute Order - Minute Order (Non-Jury Trial)

Notice of Rejection - Application for Default Judgment by Court - Contract or Tort - Notice of Rejection - Application for Default Judgment by Court - Contract or Tort

8/17/2020: Notice of Rejection - Application for Default Judgment by Court - Contract or Tort - Notice of Rejection - Application for Default Judgment by Court - Contract or Tort

Declaration (name extension) - Declaration OF SARAH L. OVERTON AND EXHIBITS, INCLUDING, BUT NOT LIMITED TO, EXHIBIT 1 DEMURRER AND EXHIBIT 2

8/31/2020: Declaration (name extension) - Declaration OF SARAH L. OVERTON AND EXHIBITS, INCLUDING, BUT NOT LIMITED TO, EXHIBIT 1 DEMURRER AND EXHIBIT 2

Declaration (name extension) - Declaration OF DEFENDANT PHILIP IADEVAIA

8/31/2020: Declaration (name extension) - Declaration OF DEFENDANT PHILIP IADEVAIA

Notice of Rejection - Pleadings - Notice of Rejection - Pleadings

9/1/2020: Notice of Rejection - Pleadings - Notice of Rejection - Pleadings

Other - (name extension) - Other - Declaration

9/14/2020: Other - (name extension) - Other - Declaration

Other - (name extension) - Other - Notice

9/16/2020: Other - (name extension) - Other - Notice

Proof of Service by Substituted Service - Proof of Service by Substituted Service

9/16/2020: Proof of Service by Substituted Service - Proof of Service by Substituted Service

Declaration (name extension) - Declaration by substituted service

9/16/2020: Declaration (name extension) - Declaration by substituted service

Certificate of Mailing for - Certificate of Mailing for (Hearing on Motion to Set Aside/Vacate Default (CCP 473.5); Or...) of 01/12/2021

1/12/2021: Certificate of Mailing for - Certificate of Mailing for (Hearing on Motion to Set Aside/Vacate Default (CCP 473.5); Or...) of 01/12/2021

Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

1/12/2021: Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

Notice (name extension) - Notice OF NON-RECEIPT OF OPPOSITION TO DEFENDANTS DEMURRER TO PLAINTIFFS COMPLAINT

2/25/2021: Notice (name extension) - Notice OF NON-RECEIPT OF OPPOSITION TO DEFENDANTS DEMURRER TO PLAINTIFFS COMPLAINT

Declaration (name extension) - Declaration of Diligence

10/28/2019: Declaration (name extension) - Declaration of Diligence

Proof of Service by Substituted Service - Proof of Service by Substituted Service

10/28/2019: Proof of Service by Substituted Service - Proof of Service by Substituted Service

Summons - on Complaint

5/3/2018: Summons - on Complaint

Civil Case Cover Sheet

5/3/2018: Civil Case Cover Sheet

37 More Documents Available

 

Docket Entries

  • 03/04/2021
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 03/16/2021 at 10:30 AM in Spring Street Courthouse at Department 26 Not Held - Vacated by Court on 03/04/2021

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  • 03/04/2021
  • DocketHearing on Motion for Stay of Proceedings scheduled for 05/24/2021 at 10:00 AM in Spring Street Courthouse at Department 26 Not Held - Vacated by Court on 03/04/2021

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  • 03/04/2021
  • DocketHearing on Motion to Enforce Settlement scheduled for 05/24/2021 at 10:00 AM in Spring Street Courthouse at Department 26 Not Held - Vacated by Court on 03/04/2021

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  • 03/04/2021
  • DocketHearing on Motion to Stay Execution scheduled for 05/25/2021 at 10:00 AM in Spring Street Courthouse at Department 26 Not Held - Vacated by Court on 03/04/2021

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  • 03/03/2021
  • DocketUpdated -- Demurrer - without Motion to Strike: Filed By: Philip Iadevaia (Defendant); Result: Sustained without Leave to Amend; Result Date: 03/03/2021

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  • 03/03/2021
  • DocketNotice of Ruling; Filed by: Philip Iadevaia (Defendant)

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  • 03/03/2021
  • DocketOn the Complaint filed by Mari Mendez on 05/03/2018, entered Order for Dismissal with prejudice as to the entire action

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  • 03/03/2021
  • DocketMinute Order (Hearing on Demurrer - without Motion to Strike)

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  • 03/03/2021
  • DocketHearing on Demurrer - without Motion to Strike scheduled for 03/03/2021 at 10:30 AM in Spring Street Courthouse at Department 26 updated: Result Date to 03/03/2021; Result Type to Held

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  • 02/25/2021
  • DocketNotice OF NON-RECEIPT OF OPPOSITION TO DEFENDANT?S DEMURRER TO PLAINTIFF?S COMPLAINT; Filed by: Philip Iadevaia (Defendant); As to: Mari Mendez (Plaintiff)

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63 More Docket Entries
  • 10/28/2019
  • DocketDeclaration of Diligence; Filed by: Mari Mendez (Plaintiff)

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  • 05/03/2018
  • DocketComplaint; Filed by: Mari Mendez (Plaintiff); As to: Philip Iadevaia (Defendant)

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  • 05/03/2018
  • DocketRequest to Waive Court Fees; Filed by: Mari Mendez (Plaintiff)

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  • 05/03/2018
  • DocketOrder on Court Fee Waiver (Superior Court); Signed and Filed by: Clerk; As to: Mari Mendez (Plaintiff)

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  • 05/03/2018
  • DocketCivil Case Cover Sheet; Filed by: Mari Mendez (Plaintiff)

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  • 05/03/2018
  • DocketSummons on Complaint; Issued and Filed by: Clerk

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  • 05/03/2018
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 05/03/2018
  • DocketCase assigned to Hon. Georgina T. Rizk in Department 94 Stanley Mosk Courthouse

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  • 05/03/2018
  • DocketNon-Jury Trial scheduled for 10/31/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 05/03/2018
  • DocketOrder to Show Cause - Failure to File Proof of Service scheduled for 05/06/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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Tentative Rulings

Case Number: 18STLC06729    Hearing Date: March 03, 2021    Dept: 26


Case Number: 18STLC14174    Hearing Date: March 03, 2021    Dept: 26

Moore v. Wilcox, et al.

MOTION TO QUASH DOE AMENDMENT

(CCP § 474)

TENTATIVE RULING:

Specially Appearing Defendant Gordon P. Firemark’s Motion to Quash or Strike Doe Amendment is DENIED. Defendant to File a Responsive Pleading Within 15 Days of Service of this Order.

TRIAL DATE IS SET FOR NOVEMBER 15, 2021 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

Plaintiff Robin Moore (“Plaintiff”) filed the instant action for motor vehicle negligence against Defendant Steven David Wilcox (“Defendant”) on November 21, 2018. The May 20, 2020 trial date was vacated by the Court on April 22, 2020. On June 8, 2020, Plaintiff filed a “Doe” Amendment naming Gordon P. Firemark (“Firemark”) as Doe 1. Firemark filed the instant Motion to Strike or Quash the Doe Amendment on August 12, 2020. Plaintiff untimely filed an opposition on February 22, 2021 and Firemark replied on February 24, 2021.

On a separate note, the Court entered Defendant’s default on October 2, 2020. Defendant then sought to file an Answer on December 14, 2020. No responsive pleading to the Complaint can be filed by Defendant until the entry of default has been vacated. (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1301.) Therefore, the Court strikes the Answer filed on December 14, 2020, on its own motion. (Code Civ. Proc., § 436, subd. (b).)

Discussion

The Court takes note that Plaintiff served the opposition papers four days late on February 22, 2021 (February 18, 2021 is nine court days prior to the hearing date). However, to the extent that Firemark was able to file a reply, the Court will consider all the papers in ruling on the Motion.

“When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly.” (Code Civ. Proc., § 474.) The purpose of this provision is to allow a plaintiff who is ignorant of a defendant’s identity to file the complaint before the statute of limitations expires. (Barrows v. American Motors Corp. (1983) 144 Cal.App.3d 1, 7.) The “Doe” amendment relates back to the date the complaint was filed for purposes of the statute of limitations “[s]o long as the amended pleading relates to the same general set of facts as the original complaint.” (Ibid.)

However, use of the relation-back doctrine can be barred if the plaintiff unreasonably delayed in filing the “Doe” amendment after learning the defendant’s identity. (Id. at 8.) Unreasonable delay “requires a showing by the defendant that he or she would suffer prejudice from plaintiff's delay in filing the Doe amendment.” (A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1067.)

Here, the Motion contends that Plaintiff’s counsel sent a letter of representation to Firemark’s insurer on November 9, 2018, and demand letter to Firemark’s insurer on July 2, 2019. (Motion, Ward Decl., Exhs. B and C.) Firemark’s insurer is USAA. (Id. at ¶2.) The letter of representation and notice of demand, however, do not reference Firemark. (Id. at Exhs. B and C.) These documents simply reference Plaintiff and the accident that occurred on November 28, 2016. (Ibid.) In opposition, Plaintiff’s counsel declares that the letter of representation was sent to Defendant’s insurance adjuster. (Opp., Sapir Decl., ¶4.) Therefore, nothing in these documents demonstrates that Plaintiff was aware Firemark was involved in the accident or had any liability to Plaintiff. Plaintiff apparently gave a statement to Defendant’s insurance adjuster at a time unknown that she felt two impacts during the accident. (Ibid.) While this suggests Plaintiff was aware two other drivers were involved in the accident, it still does not show that Plaintiff knew Firemark’s identity at the time the Complaint was filed. No declaration by Firemark himself is attached to the Motion to demonstrate that he spoke at to Plaintiff any time after the accident.

Firemark also attaches a copy of the police report from the accident that gives rise to this action. (Id. at Exh. E.) While the police report clearly identifies Firemark as a driver who was involved in the accident and present at the scene, it is not possible to determine from the report whether Plaintiff was aware of Firemark’s identity at that time. (Ibid.) Nor did Plaintiff have a duty to determine his identity at that time. (Balon v. Drost (1993) 20 Cal.App.4th 483, 488 [“our Supreme Court has expressly concluded that section 474 imposes no duty of inquiry.”].) To the extent that “the plaintiff knows the defendant's identity and then forgets it at the time the complaint is filed … the plaintiff must have at least reviewed readily available information likely to refresh his or her memory,” there is still no evidence that Plaintiff knew Firemark’s identity at any time before the “Doe” amendment was filed. Therefore, Firemark has not demonstrated that Plaintiff was aware of his identity at the time the Complaint was filed.

Plaintiff’s counsel states that “we”—presumably Plaintiff and counsel—did not learn Firemark’s name until June 2020 and filed the “Doe” amendment days later. (Opp., Sapir Decl., ¶4.) The Court agrees with Firemark’s reply that the use of “we” is improper in a declaration. Plaintiff’s counsel cannot make a statement on behalf of Plaintiff given the lack of personal knowledge. However, the Court overrules Firemark’s hearsay objection to the information Plaintiff’s counsel apparently learned from Defendant’s insurance adjuster. Hearsay is an out-of-court statement offered to prove the truth of the matter admitted. (Cal. Evid. Code, § 1200, subd. (a).) Plaintiff’s counsel is not pointing to the adjuster’s statements to prove that there were two impacts; rather to prove when Firemark’s identity became known to him.

Finally, Firemark argues that he was not served in the manner required by Code of Civil Procedure section 474, because the Summons did not indicate he was served as “Doe 1.” This requirement, however, is only necessary in order to permit a plaintiff to obtain default or default judgment. (Code Civ. Proc., § 474.) No binding authority holds that failure to comply with these notice requirements deprives the Court of jurisdiction outside of the default setting.

Conclusion

Specially Appearing Defendant Gordon P. Firemark’s Motion to Strike / Quash Doe Amendment is DENIED. Defendant to File a Responsive Pleading Within 15 Days of Service of this Order.

TRIAL DATE IS SET FOR NOVEMBER 15, 2021 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Plaintiff to give notice.

Case Number: 18STLC06729    Hearing Date: January 12, 2021    Dept: 26

Mendez v. Iaedevaia, et al.

MOTION TO SET ASIDE DEFAULT

(C.C.P. §§ 473, 473.5)

Defendant Philip Iaedevaia’s Motion to Vacate Default is GRANTED. ORDER TO SHOW CAUSE RE: PROOF OF SERVICE OF SUMMONS AND COMPLAINT IS SET FOR MARCH 16, 2021 AT 10:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. 

ANALYSIS:

Plaintiff Mari Mendez (“Plaintiff”) filed the instant action against Defendant Philip Iaedevaia (“Defendant”) on May 3, 2018. The court entered default against Defendant on March 10, 2020. Defendant filed the instant Motion to Vacate Default (“the Motion”) on August 31, 2020. Plaintiff filed an opposition on September 14, 2020.

Discussion

Defendant first moves for relief under Code of Civil Procedure section 473, subdivision (d), which states that “[t]he court may, .... on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., § 473, subd. (d).) “California is a jurisdiction where the original service of process, which confers jurisdiction, must conform to statutory requirements or all that follows is void.” (Honda Motor Co. v. Superior Court (1992) 10 Cal.App.4th 1043, 1048.) There is no time limit on when a void judgment can be challenged. (Deutsche Bank National Trust Co. v. Pyle (2017) 13 Cal.App.5th 513, 526 (citing Falahati v. Kondo (2005) 127 Cal.App.4th 823, 830; Code Civ. Proc., § 473, subd. (d)).)

On October 28, 2019, Plaintiff filed a proof of service indicating that Defendant was sub-served on October 9, 2019 at 111 N. Hill Street, Room 544, Los Angeles, California. (Proof of Service, filed 10/28/19, ¶4.) In the Motion to Vacate, Defendant provides a declaration stating that he does not reside, have an office, or have an address at the service address, which is the address for the Stanley Mosk Courthouse of the Los Angeles Superior Court. (Motion, Iaedevaia Decl., ¶4.) Defendant further declares that he practices law at and resides in Los Angeles County and occasionally volunteers as a temporary judge at the Los Angeles Superior Court. (Id. at ¶2.) At no time was Defendant served at his home or place of business. (Id. at ¶3.)

Defendant’s Motion demonstrates that he was never properly served in this action with the Summons and Complaint, and in fact, all of the papers served by Plaintiff have been sent to the Stanley Mosk Courthouse. Therefore, the Court finds it lacks personal jurisdiction over Defendant due to the failure of service and the default entered against Defendant is void.

Conclusion

Defendant Philip Iaedevaia’s Motion to Vacate Default is GRANTED.

ORDER TO SHOW CAUSE RE: PROOF OF SERVICE OF SUMMONS AND COMPLAINT IS SET FOR MARCH 16, 2021 AT 10:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Court clerk to give notice.

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