This case was last updated from Los Angeles County Superior Courts on 08/20/2019 at 12:12:57 (UTC).

MERCURY INSURANCE COMPANY VS RUFEE FONTELA

Case Summary

On 10/12/2017 MERCURY INSURANCE COMPANY filed a Personal Injury - Motor Vehicle lawsuit against RUFEE FONTELA. 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 Disposed - Dismissed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******2890

  • Filing Date:

    10/12/2017

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Personal Injury - Motor Vehicle

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

ELAINE LU

 

Party Details

Plaintiff

MERCURY INSURANCE COMPANY

Defendants

FONTELA RUFEE

FONTELA ELSA

Attorney/Law Firm Details

Plaintiff Attorney

NIVINSKUS MARK ROBERT

Defendant Attorneys

HERBITO MELISSA JAMERO

FLORES NORIEL LEANO

 

Court Documents

Minute Order - Minute Order (Non-Jury Trial)

4/11/2019: Minute Order - Minute Order (Non-Jury Trial)

Certificate of Mailing for - Certificate of Mailing for Minute Order (Non-Jury Trial) of 04/11/2019

4/11/2019: Certificate of Mailing for - Certificate of Mailing for Minute Order (Non-Jury Trial) of 04/11/2019

Certificate of Mailing for - Certificate of Mailing for (Non-Jury Trial) of 08/19/2019

8/19/2019: Certificate of Mailing for - Certificate of Mailing for (Non-Jury Trial) of 08/19/2019

Minute Order - Minute Order (Non-Jury Trial)

8/19/2019: Minute Order - Minute Order (Non-Jury Trial)

Answer

12/4/2017: Answer

Amendment to Complaint (Fictitious/Incorrect Name)

1/2/2018: Amendment to Complaint (Fictitious/Incorrect Name)

Notice of Rejection - Pleadings

3/20/2018: Notice of Rejection - Pleadings

Answer

4/2/2018: Answer

Declaration (name extension) - Declaration pursuant to code of civil procedure section 98

3/8/2019: Declaration (name extension) - Declaration pursuant to code of civil procedure section 98

Proof of Personal Service

11/20/2017: Proof of Personal Service

Complaint

10/12/2017: Complaint

Civil Case Cover Sheet

10/12/2017: Civil Case Cover Sheet

Summons - on Complaint

10/12/2017: Summons - on Complaint

Notice of Case Assignment - Limited Civil Case

10/12/2017: Notice of Case Assignment - Limited Civil Case

2 More Documents Available

 

Docket Entries

  • 08/19/2019
  • DocketMinute Order (Non-Jury Trial)

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  • 08/19/2019
  • DocketCertificate of Mailing for (Non-Jury Trial) of 08/19/2019; Filed by: Clerk

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  • 08/19/2019
  • DocketOn the Complaint filed by Mercury Insurance Company on 10/12/2017, entered Order for Dismissal without prejudice as to the entire action, pursuant to CCP 581(b)(3)

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  • 08/19/2019
  • DocketNon-Jury Trial scheduled for 08/19/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 94 updated: Result Date to 08/19/2019; Result Type to Held

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  • 08/19/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 10/15/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94 Not Held - Vacated by Court on 08/19/2019

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  • 07/10/2019
  • DocketNon-Jury Trial scheduled for 08/19/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 07/10/2019
  • DocketPursuant to written stipulation, Non-Jury Trial scheduled for 04/11/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 94 Not Held - Continued - Stipulation was rescheduled to 08/19/2019 08:30 AM

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  • 04/11/2019
  • DocketMinute Order (Non-Jury Trial)

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  • 04/11/2019
  • DocketCertificate of Mailing for Minute Order (Non-Jury Trial) of 04/11/2019; Filed by: Clerk

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  • 03/08/2019
  • DocketDeclaration pursuant to code of civil procedure section 98; Filed by: Mercury Insurance Company (Plaintiff)

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3 More Docket Entries
  • 01/02/2018
  • DocketAmendment to Complaint (Fictitious/Incorrect Name); Filed by: Mercury Insurance Company (Plaintiff); As to: Elsa Fontela (Defendant); Type: Fictitious Name

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  • 12/04/2017
  • DocketAnswer; Filed by: Rufee Fontela (Defendant)

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  • 11/20/2017
  • DocketProof of Personal Service; Filed by: Mercury Insurance Company (Plaintiff); As to: Rufee Fontela (Defendant); Service Date: 11/06/2017; Service Cost: 69.00; Service Cost Waived: No

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  • 10/12/2017
  • DocketComplaint; Filed by: Mercury Insurance Company (Plaintiff); As to: Rufee Fontela (Defendant)

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  • 10/12/2017
  • DocketCivil Case Cover Sheet; Filed by: Mercury Insurance Company (Plaintiff)

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  • 10/12/2017
  • DocketSummons on Complaint; Issued and Filed by: Clerk

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  • 10/12/2017
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 10/12/2017
  • DocketCase assigned to Hon. Elaine Lu in Department 77 Stanley Mosk Courthouse

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  • 10/12/2017
  • DocketNon-Jury Trial scheduled for 04/11/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 77

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  • 10/12/2017
  • DocketOSC - Failure to File Proof of Service scheduled for 10/15/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 77

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Tentative Rulings

Case Number: 17STLC02890    Hearing Date: December 10, 2019    Dept: 94

MOTION TO VACATE DISMISSAL

(CCP § 473(b), mandatory)

TENTATIVE RULING:

Plaintiff Mercury Insurance Company’s Motion to Vacate Dismissal is GRANTED.

ANALYSIS:

I. Background

On October 12, 2017, Plaintiff Mercury Insurance Company (“Plaintiff”) brought this action against Defendant Rufee Fontela (“Defendant”) for breach of contract and money had and received. Plaintiff failed to appear at the Non-Jury Trial on August 19, 2019, and the Court dismissed this action without prejudice pursuant to CCP § 581(b)(3). On October 15, 2019, Plaintiff brought the instant Motion to Vacate Dismissal (the “Motion”) under the mandatory provision of CCP § 473(b) based on its counsel’s mistake, inadvertence, surprise, and neglect.

II. Legal Standard

“Section 473(b) provides for both discretionary and mandatory relief. [Citation.]” (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) Plaintiff seeks relief under the mandatory provision of the statute based on its counsel’s mistake, inadvertence, surprise, or neglect. The mandatory provision states in pertinent part:

“[W]henever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.”

(CCP § 473(b).)

“The purpose of this mandatory relief provision is to alleviate the hardship on parties who lose their day in court due to an inexcusable failure to act by their attorneys. [Citation.]” (Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 723, emphasis added.) Relief under CCP § 473(b) is also available to plaintiffs because dismissal is the “practical equivalent of a default judgment.” (Aldrich v. San Fernando Valley Lumber Co., Inc.

III. Analysis

Plaintiff timely brought this Motion under the mandatory provision of CCP § 473(b) less than six months after the dismissal.

Plaintiff submits a sworn affidavit from its counsel Mark R. Nivinskus (“Nivinskus”), who attests that he did not calendar the August 19, 2019 and, as a result, failed to appear for it. (Motion, Nivinskus Decl. ¶¶ 7-10.) “[A]s this text [of the mandatory provision of Section 473(b)] indicates, what must be attested to is the mistake, inadvertence, surprise, or neglect—not the reasons for it. [Citation.]” (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438.) In light of the foregoing, the Court finds that the dismissal was a result of Plaintiff’s counsel’s mistake, inadvertence, surprise, or neglect. Accordingly, the Court has no discretion but to grant the Motion under the mandatory provision of Section 473(b). Defendant has not opposed.

IV. Conclusion & Order

The unopposed Motion is GRANTED. The dismissal of this action is hereby VACATED.

Trial is set for APRIL 2, 2020 at 8:30 a.m. in Department 94. All discovery cut-off dates follow the new trial date.

Moving party is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCdept94@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.