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.
Pending - Other Pending
Stanley Mosk Courthouse
Los Angeles, California
JON R. TAKASUGI
LAW OFFICES OF EVERARDO VARGAS VA;EMCIA
VALENCIA EVERARDO VARGAS ESQ.
11/20/2017: DECLARATION OF EVERARDO VARGAS VALENCIA IN SUPPORT OF APPLICATION FOR ORDER FOR PUBLICATION RE: SERVICE OF DEFENDANT CYNTHIA ELERICK
11/20/2017: APPLICATION FOR PUBLICATION
12/19/2017: Minute Order
12/22/2017: NOTICE OF REJECTION, APPLICATION AND ORDER FOR PUBLICATION
2/1/2018: APPLICATION FOR PUBLICATION
2/6/2018: Minute Order
2/6/2018: Minute Order
4/23/2018: DECLARATION OF PUBLICATION
6/29/2018: DECLARATION OF CHRISTOPHER A. BAILEY-TOWMAN RE: MAILING OF SUMMONS AND COMPLAINT PER COURT ORDER FROM CLERK
1/23/2019: Proof of Service by Mail
2/1/2019: Minute Order
4/22/2016: NOT FOUND/NO SERVICE/CANCELED
5/16/2016: REQUEST FOR DISMISSAL
7/17/2017: Minute Order
10/16/2017: Minute Order
10/16/2017: NO FOUND/NO SERVICE/CANCELED
10/25/2017: REQUEST FOR DISMISSAL
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 - ContinuedRead MoreRead Less
Minute Order ( (Order to Show Cause Re: Why This Action Should Not Be Dismiss...)); Filed by ClerkRead MoreRead Less
at 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Order to Show Cause Re: Dismissal - Not Held - Vacated by CourtRead MoreRead Less
Minute Order ( (Order to Show Cause Re: Dismissal)); Filed by ClerkRead MoreRead Less
Request (Request for Entry of Default); Filed by Christian Urena (Plaintiff)Read MoreRead Less
Proof of Service by Mail; Filed by Christian Urena (Plaintiff)Read MoreRead Less
DECLARATION OF CHRISTOPHER A. BAILEY-TOWMAN RE: MAILING OF SUMMONS AND COMPLAINT PER COURT ORDER FROM CLERKRead MoreRead Less
Declaration; Filed by Christian Urena (Plaintiff)Read MoreRead Less
Declaration (of Publication (completion)); Filed by Christian Urena (Plaintiff)Read MoreRead Less
Proof of Publication; Filed by Christian Urena (Plaintiff)Read MoreRead Less
REQUEST FOR DISMISSALRead MoreRead Less
Proof of Service (not Summons and Complaint); Filed by Christian Urena (Plaintiff)Read MoreRead Less
NOT FOUND/NO SERVICE/CANCELEDRead MoreRead Less
Miscellaneous-Other; Filed by Christian Urena (Plaintiff)Read MoreRead Less
NOT FOUND/NO SERVICE/CANCELEDRead MoreRead Less
Proof of ServiceRead MoreRead Less
Proof-Service/Summons; Filed by ClerkRead MoreRead Less
SUMMONSRead MoreRead Less
COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)Read MoreRead Less
Complaint; Filed by Christian Urena (Plaintiff)Read MoreRead Less
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
CYNTHIA ELERICK, ET AL.,
CASE NO: BC608834
[TENTATIVE] ORDER GRANTING PLAINTIFF’S MOTION TO VACATE DISMISSAL
December 23, 2020
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 firstname.lastname@example.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