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This case was last updated from Los Angeles County Superior Courts on 06/01/2019 at 19:57:42 (UTC).

EFREM CHARLES VS HOOMAN HYUNDAI ET AL

Case Summary

On 09/20/2016 EFREM CHARLES filed a Personal Injury - Other Personal Injury lawsuit against HOOMAN HYUNDAI. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is GEORGINA T. RIZK. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3489

  • Filing Date:

    09/20/2016

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

GEORGINA T. RIZK

 

Party Details

Plaintiff and Petitioner

CHARLES EFREM

Defendants and Respondents

DOES 1 TO 50 INCLUSIVE

HOOMAN HYUNDAI

HYUNDAI HOOMAN

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

KHORSHIDI OMID ESQ.

Defendant Attorney

MCCREARY DUNCAN J. ESQ.

 

Court Documents

Proof of Personal Service

11/13/2017: Proof of Personal Service

REQUEST FOR ENTRY OF DEFAULT

2/8/2018: REQUEST FOR ENTRY OF DEFAULT

Minute Order

3/6/2018: Minute Order

Notice of Ruling

3/6/2018: Notice of Ruling

STATEMENT OF DAMAGES

5/9/2018: STATEMENT OF DAMAGES

Minute Order

5/9/2018: Minute Order

REQUEST FOR ENTRY OF DEFAULT

5/9/2018: REQUEST FOR ENTRY OF DEFAULT

DECLARATION OF PLAINTIFF'S ATTORNEY IN SUPPORT OF PLAINTIFFS' APPLICATION FOR DEFAULT JUDGMMENT

5/9/2018: DECLARATION OF PLAINTIFF'S ATTORNEY IN SUPPORT OF PLAINTIFFS' APPLICATION FOR DEFAULT JUDGMMENT

RULING RE; REQUEST FOR JUDGMENT AGAINST DEFENDANT, HOOMAN HYUNDAI

5/9/2018: RULING RE; REQUEST FOR JUDGMENT AGAINST DEFENDANT, HOOMAN HYUNDAI

NOTICE OF MOTION AND MOTION TO VACATE AND SET ASIDE DEFAULT AND DEFAULT JUDGMENT AGAINST DEFENDANT HOOMAN HYUNDAI; DECLARATION OF DUNCAN J. MCCREARY.

8/15/2018: NOTICE OF MOTION AND MOTION TO VACATE AND SET ASIDE DEFAULT AND DEFAULT JUDGMENT AGAINST DEFENDANT HOOMAN HYUNDAI; DECLARATION OF DUNCAN J. MCCREARY.

Opposition

10/16/2018: Opposition

Reply

10/23/2018: Reply

Minute Order

10/30/2018: Minute Order

Minute Order

11/1/2018: Minute Order

Unknown

11/1/2018: Unknown

Order

11/1/2018: Order

Answer

11/5/2018: Answer

Notice

5/1/2019: Notice

11 More Documents Available

 

Docket Entries

  • 05/01/2019
  • Notice (Notice of Unavailability of Counsel for Plaintiff); Filed by Efrem Charles (Plaintiff)

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  • 11/05/2018
  • Answer; Filed by Hooman Hyundai (Defendant)

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  • 11/01/2018
  • at 1:30 PM in Department 2, Georgina T. Rizk, Presiding; Ruling on Submitted Matter

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  • 11/01/2018
  • Certificate of Mailing for (Minute Order (Ruling on Submitted Matter) of 11/01/2018); Filed by Clerk

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  • 11/01/2018
  • Order (on Ruling Re: Motion by Defendant, Hooman Hyundai, to Vacate and Set Aside Default and Default Judgment); Filed by Clerk

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  • 11/01/2018
  • Minute Order ((Ruling on Submitted Matter)); Filed by Clerk

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  • 10/30/2018
  • at 1:30 PM in Department 2, Georgina T. Rizk, Presiding; Hearing on Motion to Set Aside/Vacate Dismissal (CCP 473) - Held - Taken under Submission

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  • 10/30/2018
  • Minute Order ((Hearing on Motion to Set Aside/Vacate Dismissal (CCP 473))); Filed by Clerk

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  • 10/23/2018
  • Reply (IN SUPPORT OF DEFENDANT'S MOTION TO VACATE AND SET ASIDE DEFAULT AND DEFAULT JUDGMENT AGAINST DEFENDANT HOOMAN HYUNDAI); Filed by Hooman Hyundai (Defendant)

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  • 10/16/2018
  • Opposition (to defendant's motion to set aside default); Filed by Efrem Charles (Plaintiff)

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21 More Docket Entries
  • 03/06/2018
  • Notice of Ruling

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  • 03/06/2018
  • Minute Order

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  • 02/16/2018
  • REQUEST FOR ENTRY OF DEFAULT

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  • 02/08/2018
  • REQUEST FOR ENTRY OF DEFAULT

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  • 01/08/2018
  • Request for Entry of Default / Judgment; Filed by null

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  • 11/13/2017
  • Proof of Personal Service

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  • 11/13/2017
  • Proof-Service/Summons; Filed by Efrem Charles (Plaintiff)

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  • 09/20/2016
  • Summons; Filed by Efrem Charles (Plaintiff)

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  • 09/20/2016
  • Complaint; Filed by Efrem Charles (Plaintiff)

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  • 09/20/2016
  • Complaint

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Tentative Rulings

Case Number: BC633489    Hearing Date: February 17, 2021    Dept: 29

Efrem Charles v. Hooman HyundaiDemurrer by Defendant

Tentative

Demurrer by Defendant, Hooman Nissani (Doe 1) is OVERRULED. Defendant Nissani is ordered to file an Answer within 10 days.

Analysis

This action arises from an incident that is alleged to have occurred on September 24, 2014. The complaint alleges that Plaintiff was lawfully on Defendant’s premises using the bathroom. Plaintiff alleges that he sustained injury because of a broken toilet seat, which was in a dangerous condition. Plaintiff alleges claims for negligence and premises liability.    

The Court’s file reflects that Plaintiff filed this action on September 20, 2016. On May 9, 2018, Plaintiff obtained a judgment by default against Defendant, Hooman Hyundai. On the same day, Plaintiff dismissed Does 1 through 50. On November 1, 2018, the Court vacated the default and default judgment. Defendant was ordered to answer within 10 days. On November 5, 2018, Defendant Hooman Hyundai filed an answer.

On September 22, 2020, Plaintiff filed an amendment to the complaint substituting Hooman Nissani (“Nissani”) as Doe 1. Nissani demurs on grounds that Plaintiff dismissed all Doe Defendants on May 9, 2018. Plaintiff’s attempt to substitute Nissani for Doe 1 is improper without leave to amend. Nissani argues that the dismissal with prejudice of Doe Defendants bar any future claims and that Plaintiff is not entitled to relate the claims back to the original complaint to avoid the statute of limitations.    

In opposition, Plaintiff argues that he dismissed all Does in order to comply with California Rules of Court, Rule 3.1800(a)(7), which requires dismissal of all Defendants against whom judgment is not sought at the time Plaintiff applies for a default judgment. The default judgment has since been vacated by the Court. Plaintiff argues he should not suffer prejudice for complying with the Rules of Court. He argues that his claim relates back to the filing of the original complaint and since he has filed a Motion for Leave to Amend, scheduled to be heard on June 10, 2021, Plaintiff asks the Court to continue this demurrer until that time to allow for full briefing by the parties.

 In reply, Defendant argues that Plaintiff was not required to dismiss all Doe Defendants. Plaintiff could have applied for a separate judgment, thus, he argues this claim is barred by the statute of limitations and leave to amend would be futile.

A demurrer reaches defects that appear on the face of the complaint. The court considers the allegations and matters that are subject to judicial notice. All facts are accepted as true. (Saunders v. Superior Court (1994) 27 Cal. App. 4th 832, 838) 

A demurrer tests the legal sufficiency of the allegations. It does not test their truth, the Plaintiff’s ability to prove them, or the possible difficulty in making such proof. (Saunders, at p. 840.) 

A demurrer is properly sustained where there is a defect or misjoinder of parties. (Code Civ. Proc. § 430.10(c).) The Court grants Defendant’s request to take judicial notice of court records attached as Exhibits A, B, and C. Cal Evidence Code section 452, subdivision (d).  

In applying for a default judgment, Plaintiff is required, among other things, to dismiss all Defendants against whom judgment is not sought or apply for a separate judgment. (Cal. Rules of Court, rule 3.1800(d).) The practical effect of this rule on an action asserted against only one named Defendant, is to require the dismissal of Doe defendants in order to permit disposition of the entire action.  

As there was only one Defendant at the time Plaintiff applied for a default judgment, there was no practical reason for asking for a separate judgment. Dismissing the Does was the only reasonable alternative in order for Plaintiff to proceed with obtaining a default judgment.  

On November 1, 2018, the Court vacated the entry of default and default judgment against Defendant Hooman Hyundai, who argued that counsel mistakenly did not file an Answer although counsel requested that the assistant prepare and file the Answer. Therefore, in furtherance of the liberal policy to permit matters to be resolved on the merits, the Court vacated the default and default judgment, but did not also vacate the Doe Dismissal. 

In effect, Defendant was permitted to defend the action at the expense of Plaintiff being allowed to add additional Defendants if necessary to Plaintiff’s substantial prejudice. 

The Doe dismissal was entered on May 9, 2018. More than six months have passed, precluding Plaintiff from seeking relief from the dismissal pursuant to Code Civil Procedure section 473, subdivision (b). However, the Court has inherent power to relieve a party from the effect of a judgment or dismissal on equitable grounds of extrinsic fraud or mistake although relief is sought more than six months from the date of entry of dismissal. (Kessler v. Hay (1962) 211 Cal. App. 2d 164, 166.) 

Where a dismissal is entered because of extrinsic fraud or mistake, and there had been no negligence or laches on the part of Plaintiff, then equity will interfere “to restrain proceedings which cannot be conscientiously enforced.” (Id.) Extrinsic fraud or mistake occurs where there is a lack of a fair adversarial hearing as a result of matters outside the issues adjudicated therein, which prevent one party from presenting his case to the Court. (Olivera v. Grace (1942) 19 Cal. 2d 570, 575.)

In fairness, the Doe dismissal should also have been vacated at the time the Court vacated the judgment against Defendant to permit both parties to fully and fairly prosecute the action on the merits. Accordingly, based on its inherent equitable powers, the Court vacates the Doe Dismissal entered on May 9, 2018.  

The Amendment to the complaint substituting Nissani for Doe 1 avoids the 2-year statute of limitation pursuant to Code Civil Procedure section 335.1 The general rule provides that an amendment that adds a new party does not relate back to the filing of the original complaint for statute of limitations purposes. (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.) Code Civil Procedure section 474 provides for an exception to the general rule by allowing the amendment to relate back if the requirements are met. (Ibid.)  

The requirements include that the Plaintiff is truly ignorant of Defendant’s identity, the claim “(1) rests on the same general set of facts as the original complaint; and (2) refers to the same accident and same injuries as the original complaint.” (Barrington v. A. H. Robins Co. (1985) 39 Cal.3d 146, 151.) Plaintiff’s counsel did not become aware of Nissani’s identity until after the complaint was filed. (Declaration of Omid Korshidi, ¶ 9.) Plaintiff maintains that the case against Nissani is based on the same facts alleged in the complaint. (Opp. 6:17-19.) Accordingly, the Doe amendment is proper, and the relation back doctrine applies to avoid the statute of limitations.  

Plaintiff’s motion for leave to amend the complaint scheduled to be heard on June 10, 2021 is taken off calendar as it is rendered moot by this ruling. 

Moving party is ordered to give notice.

NOTE:  PARTIES MUST APPEAR THIS DATE AS A TRIAL SETTING CONFERENCE IS ALSO SET ON CALENDAR FOR THIS DATE. 

In order to comply with social distancing regulations, all parties are strongly encouraged to appear via video or telephonic services offered by the Court, through LACourtConnect.

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