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This case was last updated from Los Angeles County Superior Courts on 06/01/2019 at 00:06:44 (UTC).

CHRISTIAN URENA VS CYNTHIA ELERICK ET AL

Case Summary

On 02/01/2016 CHRISTIAN URENA filed a Personal Injury - Motor Vehicle lawsuit against CYNTHIA ELERICK. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is JON R. TAKASUGI. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8834

  • Filing Date:

    02/01/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Motor Vehicle

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

JON R. TAKASUGI

 

Party Details

Plaintiff and Petitioner

URENA CHRISTIAN

Defendants and Respondents

GARCIA JOANNA

MARTIN SHIREE

ELERICK CYNTHIA

DOES 1-100

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

LAW OFFICES OF EVERARDO VARGAS VA;EMCIA

VALENCIA EVERARDO VARGAS ESQ.

 

Court Documents

DECLARATION OF EVERARDO VARGAS VALENCIA IN SUPPORT OF APPLICATION FOR ORDER FOR PUBLICATION RE: SERVICE OF DEFENDANT CYNTHIA ELERICK

11/20/2017: DECLARATION OF EVERARDO VARGAS VALENCIA IN SUPPORT OF APPLICATION FOR ORDER FOR PUBLICATION RE: SERVICE OF DEFENDANT CYNTHIA ELERICK

APPLICATION FOR PUBLICATION

11/20/2017: APPLICATION FOR PUBLICATION

Minute Order

12/19/2017: Minute Order

NOTICE OF REJECTION, APPLICATION AND ORDER FOR PUBLICATION

12/22/2017: NOTICE OF REJECTION, APPLICATION AND ORDER FOR PUBLICATION

APPLICATION FOR PUBLICATION

2/1/2018: APPLICATION FOR PUBLICATION

Minute Order

2/6/2018: Minute Order

Minute Order

2/6/2018: Minute Order

DECLARATION OF PUBLICATION

4/23/2018: DECLARATION OF PUBLICATION

DECLARATION OF CHRISTOPHER A. BAILEY-TOWMAN RE: MAILING OF SUMMONS AND COMPLAINT PER COURT ORDER FROM CLERK

6/29/2018: DECLARATION OF CHRISTOPHER A. BAILEY-TOWMAN RE: MAILING OF SUMMONS AND COMPLAINT PER COURT ORDER FROM CLERK

Proof of Service by Mail

1/23/2019: Proof of Service by Mail

Minute Order

2/1/2019: Minute Order

SUMMONS

2/1/2016: SUMMONS

NOT FOUND/NO SERVICE/CANCELED

4/22/2016: NOT FOUND/NO SERVICE/CANCELED

REQUEST FOR DISMISSAL

5/16/2016: REQUEST FOR DISMISSAL

Minute Order

7/17/2017: Minute Order

Minute Order

10/16/2017: Minute Order

NO FOUND/NO SERVICE/CANCELED

10/16/2017: NO FOUND/NO SERVICE/CANCELED

REQUEST FOR DISMISSAL

10/25/2017: REQUEST FOR DISMISSAL

12 More Documents Available

 

Docket Entries

  • 05/10/2019
  • at 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Order to Show Cause Re: (Why This Action Should Not Be Dismissed for Failure of Plaintiff to Enter Default / Default Judgment Pursuant to California Rules of Court Sections 3.110(g) and 3.110(h)) - Held - Continued

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  • 05/10/2019
  • Minute Order ( (Order to Show Cause Re: Why This Action Should Not Be Dismiss...)); Filed by Clerk

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  • 02/01/2019
  • at 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Order to Show Cause Re: Dismissal - Not Held - Vacated by Court

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  • 02/01/2019
  • Minute Order ( (Order to Show Cause Re: Dismissal)); Filed by Clerk

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  • 01/23/2019
  • Request (Request for Entry of Default); Filed by Christian Urena (Plaintiff)

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  • 01/23/2019
  • Proof of Service by Mail; Filed by Christian Urena (Plaintiff)

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  • 06/29/2018
  • DECLARATION OF CHRISTOPHER A. BAILEY-TOWMAN RE: MAILING OF SUMMONS AND COMPLAINT PER COURT ORDER FROM CLERK

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  • 06/29/2018
  • Declaration; Filed by Christian Urena (Plaintiff)

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  • 04/24/2018
  • Declaration (of Publication (completion)); Filed by Christian Urena (Plaintiff)

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  • 04/24/2018
  • Proof of Publication; Filed by Christian Urena (Plaintiff)

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31 More Docket Entries
  • 05/16/2016
  • REQUEST FOR DISMISSAL

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  • 04/22/2016
  • Proof of Service (not Summons and Complaint); Filed by Christian Urena (Plaintiff)

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  • 04/22/2016
  • NOT FOUND/NO SERVICE/CANCELED

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  • 04/11/2016
  • Miscellaneous-Other; Filed by Christian Urena (Plaintiff)

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  • 04/11/2016
  • NOT FOUND/NO SERVICE/CANCELED

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  • 04/11/2016
  • Proof of Service

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  • 04/11/2016
  • Proof-Service/Summons; Filed by Clerk

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  • 02/01/2016
  • SUMMONS

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  • 02/01/2016
  • COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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  • 02/01/2016
  • Complaint; Filed by Christian Urena (Plaintiff)

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Tentative Rulings

Case Number: BC608834    Hearing Date: December 23, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

CHRISTIAN URENA,

Plaintiff(s),

vs.

CYNTHIA ELERICK, ET AL.,

Defendant(s).

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CASE NO: BC608834

[TENTATIVE] ORDER GRANTING PLAINTIFF’S MOTION TO VACATE DISMISSAL

Dept. 31

8:30 a.m.

December 23, 2020

1. Background

Plaintiff, Christian Urena (“Plaintiff”) filed this action against Defendants, Cynthia Elerick, Shiree Martin, and Joanna Garcia for damages arising out of an automobile accident. Plaintiff filed the complaint on 2/1/16, and served Defendant Cynthia Elerick by publication. Plaintiff entered Defendant Elerick’s default on 1/23/19. On 1/2/20, after noting Plaintiff had yet to file a default judgment packet, the court set an Order to Show Cause (“OSC”) Re: Why This Action Should Not Be Dismissed for Failure of Plaintiff to Enter Default / Default Judgment for 2/7/20. (Min. order 1/2/20.)

Plaintiff filed his default judgment packet on 1/7/20. On 2/7/20, the court denied the default judgment request without prejudice. The court then called the matter for the OSC set for this date, but Plaintiff did not appear. The court ordered the action dismissed without prejudice for the failure to enter default judgment and lack of prosecution. (Min. order 2/7/20.)

Plaintiff now moves to set aside the dismissal under CCP § 473(b) contending the dismissal was the result of Plaintiff’s counsel inadvertence. In particular, Plaintiff’s counsel provide the 2/7/20 hearing was not properly set on counsel’s office master calendar.

2. Motion to Set Aside Dismissal

a. Mandatory Relief

To the extent the motion is made pursuant to the mandatory provision of §473(b), Plaintiff cannot obtain relief under the mandatory provisions of Cal. Code Civ. Proc. §473(b) where an action is dismissed for failure to prosecute.

“Finding that when the Legislature incorporated dismissals into section 473, subdivision (b) it intended to reach only those dismissals which occur through failure to oppose a dismissal motion ‘the only dismissals which are procedurally equivalent to a default, courts have held the mandatory relief provision inapplicable to dismissals for failure to prosecute [citations omitted], dismissals for failure to serve a complaint within three years [citations omitted], dismissals based on running of the statute of limitations [citations omitted] and voluntary dismissals entered pursuant to settlement [citations omitted].” Leader v. Health Industries of America Inc (2001) 89 Cal.App.4th 603, 620.

“An attorney negligently fails to diligently prosecute an action. Code of Civil Procedure section 473 provides that upon a proper motion the court shall vacate a default judgment or dismissal entered because of an attorney's mistake, inadvertence, surprise, or neglect. Does that mean that a trial court may not dismiss an action for failure of the attorney to diligently prosecute the action under section 583.410? No. We conclude that the mandatory language of section 473 does not apply to the discretionary dismissal statutes. After the trial court dismissed this action for failure to prosecute, it properly refused to vacate the judgment of dismissal in response to a motion brought pursuant to section 473.” Graham v. Beers (1994) 30 Cal.App.4th 1656, 1658.

Accordingly, Plaintiff is not entitled to relief under the mandatory provision of CCP § 473(b).

b. Discretionary Relief

The Court does, however, have discretion to vacate the dismissal under the discretionary provisions of Cal. Code Civ. Proc. §473. To grant relief under the discretionary relief provision of §473, the moving party must show the dismissal was entered as a result of mistake, surprise, inadvertence, or excusable neglect.

In this case, Plaintiff’s attorney contends the dismissal was entered because counsel’s office inadvertently did not calendar the 2/7/20 OSC hearing, and the person in charging of handling the calendar the week of the hearing for Plaintiff’s counsel’s office was away that week and unable to ensure all hearing dates were on counsel’s master calendar.

The Court finds Counsel’s declaration establishes excusable neglect and inadvertence in connection with failing to appear at the OSC. The motion is therefore granted. (CCP § 473(b).) The action is reinstated. The Court sets an OSC Re: Why This Action Should Not Be Dismissed for Failure of Plaintiff to Enter Default / Default Judgment for ____________________________.

Plaintiff is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

Dated this 23rd day of December, 2020

Hon. Thomas D. Long

Judge of the Superior Court