This case was last updated from Los Angeles County Superior Courts on 08/22/2019 at 09:18:39 (UTC).

MOTHERSHED, KATHRYN VS SIX FLAGS MAGIC MOUNTAIN INC

Case Summary

On 06/13/2017 MOTHERSHED, KATHRYN filed a Personal Injury - Other Personal Injury lawsuit against SIX FLAGS MAGIC MOUNTAIN INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Disposed - Other Disposed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7318

  • Filing Date:

    06/13/2017

  • Case Status:

    Disposed - Other Disposed

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff

MOTHERSHED KATHRYN

Defendant

SIX FLAGS MAGIC MOUNTAIN INC

Attorney/Law Firm Details

Plaintiff Attorneys

CARRILLO DAVALOS APLC

APLC CARRILLO DAVALOS

Defendant Attorney

AMARO MICHAEL LEE

 

Court Documents

Certificate of Mailing for - Certificate of Mailing for [Minute Order (Order to Show Cause Re: Proof of Service/Dismissal)]

6/3/2019: Certificate of Mailing for - Certificate of Mailing for [Minute Order (Order to Show Cause Re: Proof of Service/Dismissal)]

Minute Order - Minute Order (Order to Show Cause Re: Proof of Service/Dismissal)

6/3/2019: Minute Order - Minute Order (Order to Show Cause Re: Proof of Service/Dismissal)

Certificate of Mailing for - Certificate of Mailing for (Order to Show Cause Re: Proof of Service/Dismissal) of 08/21/2019

8/21/2019: Certificate of Mailing for - Certificate of Mailing for (Order to Show Cause Re: Proof of Service/Dismissal) of 08/21/2019

Minute Order - Minute Order (Order to Show Cause Re: Proof of Service/Dismissal)

8/21/2019: Minute Order - Minute Order (Order to Show Cause Re: Proof of Service/Dismissal)

Civil Case Cover Sheet - Civil Case Cover Sheet

6/13/2017: Civil Case Cover Sheet - Civil Case Cover Sheet

Complaint - Complaint Other Personal Injury

6/13/2017: Complaint - Complaint Other Personal Injury

Summons - Summons

6/13/2017: Summons - Summons

Minute Order - Minute Order (Non-Jury Trial)

12/13/2018: Minute Order - Minute Order (Non-Jury Trial)

Certificate of Mailing for - Certificate of Mailing for Minute Order (Non-Jury Trial) of 12/13/2018

12/13/2018: Certificate of Mailing for - Certificate of Mailing for Minute Order (Non-Jury Trial) of 12/13/2018

Answer - Answer

2/19/2019: Answer - Answer

 

Docket Entries

  • 08/21/2019
  • DocketMinute Order (Order to Show Cause Re: Proof of Service/Dismissal)

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  • 08/21/2019
  • DocketCertificate of Mailing for (Order to Show Cause Re: Proof of Service/Dismissal) of 08/21/2019; Filed by: Clerk

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  • 08/21/2019
  • DocketOn the Complaint filed by MOTHERSHED, KATHRYN on 06/13/2017, entered Order for Dismissal without prejudice as to the entire action

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  • 08/21/2019
  • DocketOrder to Show Cause Re: Proof of Service/Dismissal scheduled for 08/21/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 94 updated: Result Date to 08/21/2019; Result Type to Held

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  • 08/21/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 06/15/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94 Not Held - Vacated by Court on 08/21/2019

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  • 07/18/2019
  • DocketOrder to Show Cause Re: Proof of Service/Dismissal scheduled for 08/21/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 07/18/2019
  • DocketOn the Court's own motion, Order to Show Cause Re: Proof of Service/Dismissal scheduled for 06/03/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 94 Not Held - Continued - Court's Motion was rescheduled to 08/21/2019 08:30 AM

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  • 06/03/2019
  • DocketCertificate of Mailing for [Minute Order (Order to Show Cause Re: Proof of Service/Dismissal)]; Filed by: Clerk

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  • 06/03/2019
  • DocketMinute Order (Order to Show Cause Re: Proof of Service/Dismissal)

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  • 02/19/2019
  • DocketAnswer; Filed by: SIX FLAGS MAGIC MOUNTAIN INC (Defendant)

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  • 12/13/2018
  • DocketOrder to Show Cause Re: Proof of Service/Dismissal scheduled for 06/03/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 12/13/2018
  • DocketMinute Order (Non-Jury Trial)

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  • 12/13/2018
  • DocketCertificate of Mailing for Minute Order (Non-Jury Trial) of 12/13/2018; Filed by: Clerk

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  • 12/13/2018
  • DocketNon-Jury Trial scheduled for 12/13/2018 at 08:30 AM in Stanley Mosk Courthouse at Department 94 updated: Result Date to 12/13/2018; Result Type to Not Held - Taken Off Calendar by Court

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  • 02/20/2018
  • DocketCase reassigned to Stanley Mosk Courthouse in Department 77

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  • 06/15/2017
  • DocketNON-JURY TRIAL SET FOR 12/13/18, 08:30 AM, DEPT 77

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  • 06/14/2017
  • DocketOSC SET 06/15/20, 08:30 AM, DEPT. 77 PURSUANT TO GENERAL ORDER

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  • 06/13/2017
  • DocketCivil Case Cover Sheet; Filed by:

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  • 06/13/2017
  • DocketCOMPLAINT FILED - OTHER PERSONAL INJURY Filing Fee: 370.00

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  • 06/13/2017
  • DocketSUMMONS FILED

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Tentative Rulings

Case Number: 17K07318    Hearing Date: November 19, 2019    Dept: 94

MOTION TO VACATE DISMISSAL

(CCP § 473(b), mandatory)

TENTATIVE RULING:

Plaintiff Kathryn Mothershed’s Motion to Vacate Dismissal is GRANTED.

ANALYSIS:

I. Background

On June 13, 2017, Plaintiff Kathryn Mothershed (“Plaintiff”) brought this premises liability action against Defendant Six Flags Magic Mountain, Inc. (“Defendant”). Because Plaintiff failed to appear for an OSC Hearing re: Proof of Service / Dismissal on August 21, 2019, the Court dismissed this action. Eight days later, Plaintiff’s counsel realized he made a mistake in failing to appear for the OSC Hearing and brought the instant Motion to Vacate Dismissal (the “Motion”) under the mandatory provision of CCP § 473(b).

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

A. Merits of Motion

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 Rafael Carrillo (“Carrillo”), who attests that he miscalendared the date of the OSC Hearing and, as a result, did not appear for the hearing. (Motion, Carrillo Decl. p. 2.) “[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 attorney’s mistake, inadvertence, surprise, and neglect. Accordingly, the Court has no discretion but to grant the Motion under the mandatory provision of Section 473(b).

IV. Conclusion & Order

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

Trial is set for MAY 19, 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.