On 06/24/2014 JACK CARRILLO filed a Personal Injury - Other Personal Injury lawsuit against PAYLESS FOODS INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is HOLLY J. FUJIE. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
HOLLY J. FUJIE
DOES 1 TO 50
PAYLESS FOODS INC.
PAYLESS FOODS STORE NO. 10
KOSHAN INC. DBA PAYLESS FOODS (DOE 1)
LAW OFFICES OF BOB K. KAKSHOOY
WALSON COREEN R. ESQ.
6/24/2014: COMPLAINT FOR DAMAGES; AND DEMAND FOR JURY TRIAL
7/1/2014: PROOF OF SERVICE OF SUMMONS
7/1/2014: PROOF OF SERVICE OF SUMMONS
8/18/2014: ANSWER ? PERSONAL INJURY, PROPERTY DAMAGE WRONGFUL DEATH
8/28/2015: AMENDMENT TO COMPLAINT
12/8/2015: Minute Order
12/24/2015: Minute Order
3/3/2016: Minute Order
4/1/2016: Minute Order
4/11/2016: NOTICE OF COURT'S RULING
4/11/2016: PROOF OF SERVICE
6/27/2016: Minute Order
7/7/2017: Minute Order
7/14/2017: Minute Order
7/20/2017: Minute Order
9/1/2017: Minute Order
10/5/2017: Minute Order
Amendment to Complaint Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
Answer Filed by Attorney for Defendant/RespondentRead MoreRead Less
ComplaintRead MoreRead Less
Case Number: BC549687 Hearing Date: November 04, 2019 Dept: 4B
[TENTATIVE] ORDER RE: MOTION FOR RECONSIDERATION
On June 21, 2019, defendant BFRoddco Inc. dba Payless Foods (erroneously sued and named as Payless Food Store No. 10) (“Defendant”) filed a motion to dismiss for plaintiff Jack Carrillo’s (“Plaintiff”) failure to bring this action to trial within five years after it was commenced. (Code Civ. Proc., § 583.310.) On September 9, 2019, the Court granted the motion. Plaintiff then filed this motion for reconsideration asking the Court to consider several documents – three default judgment packages – that were not part of the case record and which Plaintiff had not filed with his opposition to the motion to dismiss. The Court will assume that the motion for reconsideration satisfies the requirements of Code of Civil Procedure section 1008 and reconsiders the September 9, 2019 decision in light of the additional documents, which the Court notes below by exhibit letters, referring to the exhibits Plaintiff submitted with his motion for reconsideration.
On June 24, 2014, Plaintiff filed this action for negligence against “Payless Foods, Inc., doing business in California, Payless Foods Store No. 10, doing business in California, Sergio, last name unknown, and Does 1-50, inclusive” concerning a slip and fall incident on June 25, 2012. On June 25, 2014, Plaintiff served the Summons and Complaint on Payless Foods, Inc. and Payless Foods Store No. 10. On August 14, 2014, Payless Foods filed an Answer.
Nothing was filed for the next year. On August 28, 2015, Plaintiff amended the Complaint to name “Koshan, Inc. dba Payless Foods” as Doe 1. (Exh. E.)
In later 2015, the Court held two Final Status Conferences where Defendant did not appear. (Exh. F; Exh. G.) The Court then set an OSC re sanctions for March 3, 2016 and ordered Plaintiff’s counsel to give notice. (Exh. G.) Plaintiff’s counsel did not do so. (Exh. H.) On March 3, 2016, the Court set an OSC re dismissal for failure to give notice and an OSC re proof of service of complaint for April 1, 2016. (Exh. H.) Plaintiff did not file a proof of service, so on April 1, 2016, the Court continued the OSC re dismissal and set an OSC re default/answer for June 27, 2016. (Exh. I.)
On June 27, 2016, the Court set a trial date for a year out – July 20, 2017 – and an FSC date for July 7, 2017, with Plaintiff to give notice. (Exh. J.) Plaintiff did not give notice, so the FSC was continued to July 14, 2017. (Exh. K.) When defense counsel did not appear on July 14, 2017, the Court set an OSC re striking the answer and entering default for July 20, 2017. (Exh. L.) On July 20, 2017, the Court ordered the answer stricken and default entered as to Payless Foods. The Court set September 28, 2017 as an OSC re default judgment. (Exh. M.)
On September 1, 2017, the OSC re default judgment was continued to October 5, 2017. (Exh. N.)
On October 5, 2017, the Court noted that a default judgment had been submitted. (Exh. O.) On December 12, 2017, Plaintiff submitted a request for dismissal “as to all unserved Defendants and all DOE defendants 2-50,” a request for judgment against Koshan, Inc. dba Payless Foods that was dated October 2, 2017 (and therefore might have duplicated the default judgment package noted by the Court on October 5, 2017), and a Default Judgment Package As To Defendant Koshan, Inc. dba Payless Foods. (Exh. B.)
On December 19, 2017, the Court issued an order rejecting the default package because that Plaintiff sought a default judgment against only Koshan, Inc. dba Payless Foods but had not dismissed Payless Foods, Inc. and Payless Foods Store No. 10, which both had been served with the complaint. The Court also noted there was no proof of service of summons on Koshan, Inc. dba Payless Foods. The Court ordered Plaintiff to submit a new request for default judgment addressing these defects by February 9, 2018. The Court stated the OSC re default prove up remained on calendar for February 23, 2018. (Exh. Q.)
On February 23, 2018, the Court found Plaintiff had not complied with the December 19, 2017 order and again ordered Plaintiff to comply. The Court set a default prove-up for April 26, 2018 and an OSC re dismissal for failure to file proof of service for that date. The Court stated: “Failure to appear at the above hearing or file appropriate documents with the Court may result in the case being dismissed.” (Exh. R.)
On April 26, 2018, there were no appearances so the Court dismissed the case without prejudice. (Exh. S.)
On May 4, 2018, Plaintiff moved to set the dismissal aside on the ground of attorney mistake because Plaintiff’s attorney “failed to notice the hearing on his calendar.” (Exh. T.) On June 8, 2018, the Court vacated the dismissal and set August 28, 2018 for an OSC re default/default judgment and an OSC re dismissal for failure to file a proof of service. The Court ordered Plaintiff’s counsel to submit a new default judgment package in compliance with the December 19, 2017 order. The Court against stated: “Failure to appear at the above hearing or file appropriate documents with the Court may result in the case being dismissed.” (Exh. U.) On June 21, 2018, Plaintiff submitted a default judgment package. (Exh. C.)
On August 28, 2018, the OSC re default/default judgment and OSC re dismissal were continued to November 28, 2018. (Exh. V.)
On September 12, 2018, Plaintiff submitted a default judgment package. (Exh. D.)
On October 5, 2018, the Court denied the application for a default judgment without prejudice. (Exh. W; Exh. X.) The underlying default entry was void because there did not appear to be a statement of damage served on Defendants. The Court therefore struck the default entered against Payless Foods. Also, the Court noted there did not appear to be any default entered against Payless Foods Store No. 10. The Court ordered Plaintiff to serve a statement of damages on both Payless Foods and Payless Foods Store No. 10, seek a new entry of default, and then seek a default judgment. The Court also pointed out other deficiencies in the default judgment package. The application for a default judgment did not contain a declaration by Plaintiff or one with personal knowledge of the facts of the incident and evidence supporting the actual amount of damages sought. The OSC re default prove-up remained on calendar for December 14, 2018. (Exh. W.)
On October 5, 2018, the Court entered dismissals against “Sergio; Does 2-50; Koshan, Inc. dba Payless Foods named as Doe 1,” as requested by Plaintiff. (Exh. W.)
On December 13, 2018, Plaintiff filed an Application for Publication to allow service on Payless Foods, Inc. and Payless Foods Store No. 10 by publication. On December 14, 2018, the Court noted the application and continued the OSC re default judgment from December 14, 2018 to April 11, 2019. (Exh. X.) The Court rejected the applications on December 27, 2018 due to multiple deficiencies. (Exh. X.)
On April 11, 2019, the Court continued the OSC re default judgment to June 17, 2019. (Exh. Y.)
On April 18, 2019, Plaintiff filed proofs of service of summons for Payless Foods, Inc. and Payless Foods Store No. 10 showing personal service on April 2, 2019. (Exh. Y.) On April 26, 2019, Defendant filed an answer. And on June 21, 2019, Defendant filed its motion to dismiss.
“An action shall be brought to trial within five years after the action is commenced against the defendant.” (Code Civ. Proc., § 583.310.) An action is commenced when the complaint is filed. (Code Civ. Proc., §§ 350, 411.10.) If the action is not brought to trial within the time prescribed, the court shall dismiss the action on its own motion or on motion of the defendant, after notice to the parties. (Code Civ. Proc., § 583.360, subd. (a).) These requirements are mandatory and not subject to extension, excuse, or exception except as expressly provided by statute. (Code Civ. Proc., § 583.360, subd. (b).)
In computing the time within which an action must be brought to trial, there shall be excluded the time during which the jurisdiction of the court to try the action was suspended, prosecution or trial of the action was stayed or enjoined, or bringing the action to trial, for any other reason, was impossible, impracticable, or futile. (Code of Civ. Proc., § 583.340, subds. (a)-(c).) The burden is on the plaintiff to avoid the mandatory 5-year dismissal by showing one of the exceptions made by statute or recognized by decisions applies. (Anderson v. Erwyn (1966) 247 Cal.App.2d 503, 505.)
Plaintiff argues that an exception to the five-year rule applies because Defendant’s actions caused delay when, for example, defense counsel failed to appear at hearings, because the five-year period was tolled during the time of the default before it was voided, and because it was the Court’s fault it entered the original default without first requiring Plaintiff to serve a statement of damages.
First, as detailed above, Plaintiff’s counsel failed to give notice of some of the hearings, requiring the Court to reset hearings, and failed to appear for the April 26, 2018 hearing, causing further delay when the Court then dismissed the case.
Second, while entry of a default judgment “effectively bring[s] the litigation to a standstill” (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 438), the same is not true of an entry of default. “A default does not render further prosecution of the case impossible. An exercise of reasonable diligence in prosecuting the case when the defendant is in default consists of reasonable efforts to proceed to a hearing on damages and obtain a default judgment. Where such efforts by a plaintiff do not appear within a reasonable time, no principle of fairness forbids dismissal of the action.” (Hughes v. Kimble (1992) 5 Cal.App.4th 59, 69.) “[T]he time between entry of a default and entry of a default judgment should be excluded from the five-year time to bring a case to trial if and only if the court finds the plaintiff used due diligence to obtain entry of the judgment, and that in spite of such due diligence, it was impossible, impracticable, or futile to obtain a judgment.” (Id. at p. 71.)
Plaintiff has not shown that it acted diligently to obtain a default judgment or bring the case to trial. On July 20, 2017, default was entered only as to Payless Foods and not as to Payless Foods Store No. 10. Plaintiff had not acted diligently in seeking to obtain a default or trial as to Payless Foods Store No. 10. Likewise, no default was entered as to Koshan, Inc. dba Payless Foods. Indeed, Plaintiff had not even served Koshan, Inc. dba Payless Foods.
Between July 20, 2017, when the Court set an OSC re entry of default judgment, and October 5, 2018, when the Court found the underlying default entry as to Payless Foods was void and no statement of damages had been served, Plaintiff failed to submit a non-defective default judgment package. Plaintiff did not follow the Court’s order to remedy deficiencies. Even if the failed attempts to submit a default judgment package could be considered due diligence, Plaintiff has not shown that it was impossible, impracticable or futile to obtain a judgment. Rather, it was Plaintiff’s inadequate default packages and the failure to serve a statement of damages in the first place that were the problems. In addition, thereafter, Plaintiff did not act diligently to serve Defendant or obtain a new entry of default. Plaintiff took six months to serve Defendant after October 5, 2018.
Finally, that the Court entered default against Payless Foods without Plaintiff serving a statement of damages did not absolve Plaintiff of the responsibility of serving a statement of damages on all of the named defendants or of seeking a default or trial against the other named defendants Payless Foods Store No. 10 and Koshan, Inc. dba Payless Foods. Nor did it excuse Plaintiff from acting diligently after the Court found the entry of default void. And, the lack of a statement of damages was not the only defect in the default judgment package preventing entry of a default judgment, as the Court explained in its October 5, 2018 ruling.
Thus, Plaintiff has failed to meet his burden to show an exception applies.
Upon reconsideration, the Court does not change its prior ruling granting the motion to dismiss.
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