On 11/27/2013 LINCO CUSTOM PICTURE FRAMING INC filed a Contract - Other Contract lawsuit against MARKETING FUNDAMENTAL IN. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are GREGORY KEOSIAN and HOLLY E. KENDIG. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
HOLLY E. KENDIG
LINCO CUSTOM PICTURE FRAMING INC.
DOES 1 THROUGH 50
LAI YING Y.
MARKETING FUNDAMENTAL INCORPORATED
LAW OFFICES OF STEVEN L. MARTIN
CRUSE JOSEPH R. JR. ESQ.
1/3/2014: DECLARATION OF DILIGENCE
1/21/2014: NOTICE OF I)EMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS ANI) AIJTHORITIES IN SUPPORT THEREOF; I)ECLARATION OF JOSEPH IL CRUSF, JR
2/28/2014: NOTICE OF UNAVAILABILITY OF COUNSEL
4/23/2014: NOTICE OF UNAVAILABILITY OF COUNSEL
7/3/2014: PLAINTIFF?S OPPOSITION TO DEMURRER TO COMPLAINT
7/30/2014: REPLY BRIEF OF DEFENDANTS IN SUPPORT OF DEMURRER TO COMPLAINT
10/1/2014: NOTICE OF CONTINUANCE OF CASE MANAGEMENT CONFERENCE
3/17/2015: NOTICE OF CASE REASSIGNMENT
4/1/2015: PROOF OF SERVICE BY FIRST-CLASS MAIL - CIVIL
4/15/2015: RULING RE: DEFENDANTS MARKETING FUNDAMENTAL INC. D/B/A ABC BARTER AND JING Y. LAI A/K/A GINGER LAI'S DEMURRER TO PLAINTIFF LINCO CUSTOM PICTURE FRAMING, INC.'S FIRST AMENDED COMPLAINT
8/19/2016: Minute Order
5/23/2017: DECLARATION OF STEVEN L MARTIN IN REPLY TO DEFENDANT'S OPPOSITION TO MOTION TO COMPEL DEPOSITION.
6/2/2017: Minute Order
10/2/2017: NOTICE OF RULING
11/14/2017: Minute Order
Notice of Continuance Filed by Attorney for Pltf/PetnrRead MoreRead Less
Stipulation and Order (STIPULATION AND ORDER TO CONTINUE TRIAL ) Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
Notice of Change of Address Filed by Attorney for Pltf/PetnrRead MoreRead Less
Answer Filed by Attorney for Deft/RespntRead MoreRead Less
Order (RULING RE DEFENDANTS MARKETING FUNDAMENTAL INC. D/B/A ABC BARTER AND JING Y. LAI A/K/A GINGER LAI'S DEMURRER TO PLAINTIFF LINCO CUSTOM PICTURE FRAMING, INC.'S FIRST AMENDED COMPLAINT) Filed by CourtRead MoreRead Less
Statement-Case Management Filed by Attorney for Deft/RespntRead MoreRead Less
Miscellaneous-Other (memorandum of points & authorities ) Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
Proof of Service (re notice of case assignment ) Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
Statement-Case Management Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
Notice of Case Assignment Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
Brief-Reply Filed by Attorney for Deft/RespntRead MoreRead Less
Opposition Document Filed by Attorney for Pltf/PetnrRead MoreRead Less
Notice of Change of Address Filed by Attorney for Pltf/PetnrRead MoreRead Less
Notice (OF UNAVAILABILITY ) Filed by Attorney for Pltf/PetnrRead MoreRead Less
Demurrer Filed by Attorney for Deft/RespntRead MoreRead Less
Miscellaneous-Other (NON SERVICE REPORT ) Filed by Attorney for Pltf/PetnrRead MoreRead Less
Proof-Service/Summons Filed by Attorney for Pltf/PetnrRead MoreRead Less
Declaration of Diligence Filed by Attorney for Pltf/PetnrRead MoreRead Less
Summons Filed Filed by Attorney for Pltf/PetnrRead MoreRead Less
ComplaintRead MoreRead Less
Case Number: BC529071 Hearing Date: January 07, 2020 Dept: 61
Plaintiff Linco Custom Picture Framing, Inc.’s Motion to Vacate Dismissal is GRANTED. The court will hear argument as to Judgment.
Code of Civil Procedure section 473, subdivision (b) states:
The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. However, in the case of a judgment, dismissal, order, or other proceeding determining the ownership or right to possession of real or personal property, without extending the six-month period, when a notice in writing is personally served within the State of California both upon the party against whom the judgment, dismissal, order, or other proceeding has been taken, and upon his or her attorney of record, if any, notifying that party and his or her attorney of record, if any, that the order, judgment, dismissal, or other proceeding was taken against him or her and that any rights the party has to apply for relief under the provisions of Section 473 of the Code of Civil Procedure shall expire 90 days after service of the notice, then the application shall be made within 90 days after service of the notice upon the defaulting party or his or her attorney of record, if any, whichever service shall be later. No affidavit or declaration of merits shall be required of the moving party. Notwithstanding any other requirements of this section, the court shall, whenever 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. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310..
Linco moves to vacate the dismissal entered on January 12, 2018, on the grounds that the settlement agreement entered by the parties stated that no dismissal was to be entered until the completion of the settlement terms, i.e. Defendants’ completion of payment. (Motion at p. 4.) Linco’s counsel declares that he filed the dismissal while recuperating from surgery and has no specific recollection of signing it. (Martin Decl. ¶¶ 4–8.) Linco argues that the declaration of counsel is sufficient grounds for both mandatory and discretionary relief from the dismissal under section 473, subd. (b).
Defendants argue that the motion is untimely because it was not filed within a reasonable time not exceeding six months. (Opposition at p. 5.) But Linco’s response is compelling: “An attorney's unauthorized disposition of clients' substantive rights is invalid and a judgment based thereon is therefore void.” (Romadka v. Hoge (1991) 232 Cal.App.3d 1231, 1236.) And being void, ““[d]ismissal of a cause of action by an attorney acting without any authority from his client is an act beyond the scope of his authority which, on proper proof, may be vacated at any time.” (Id. at p. 1236.) Here, Linco’s counsel testifies that he had no authority to dismiss the lawsuit, a statement corroborated by the settlement agreement’s provision that Linco shall seek dismissal “within three (3) days of the final payment” under the settlement. (Martin Decl. ¶ 9; 5/10/18 Motion, Exh. 1.)
Defendants also argue that the motion fails to include a copy of the proposed pleading as required under Code of Civil Procedure § 473, subd. (b).) (Opposition at p. 5.) Yet this objection is of little merit, as the motion specifically seeks to vacate the dismissal of the First Amended Complaint, which is the proposed pleading at issue.
Defendants argue that entering judgment nunc pro tunc to reaffirm this court’s order of May 11, 2018, would defy the ruling of the court of appeal. (Opposition at p. 5.) But the ruling of the higher court was that Linco’s dismissal deprived the court of jurisdiction to enter judgment under the agreement, notwithstanding that the agreement — signed by the parties — specifically provided for continuing jurisdiction under Code of Civil Procedure § 664.6. (See Sayta v. Chu (2017) 17 Cal.App.5th 960, 965–66 [“An action which is voluntarily dismissed in its entirety is no longer pending. . . . In short, in the absence of a motion under section 473 to vacate the dismissal, the court was without subject matter jurisdiction over the original action.”], alterations omitted.) The Court of Appeal specifically declined to rule on the propriety of Linco’s request to vacate the dismissal, or that dismissal’s effect on these proceedings.
Defendants finally argue that this motion was previously denied, but they then proceed to describe numerous instances in which the motion was withdrawn or not considered, not any instance in which the motion was denied on the merits. (Opposition at p. 6.)
Accordingly, Linco’s Motion to Vacate Dismissal is GRANTED. The court will her argument as to Judgment.