This case was last updated from Los Angeles County Superior Courts on 06/20/2019 at 02:19:31 (UTC).

CHRISTINA BIRDSELL ET AL VS FOOD BROKERS INTERNATIONAL INC

Case Summary

On 08/09/2017 CHRISTINA BIRDSELL filed a Personal Injury - Other Personal Injury lawsuit against FOOD BROKERS INTERNATIONAL INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are YOLANDA OROZCO, LAURA A. SEIGLE and AMY D. HOGUE. The case status is Disposed - Dismissed.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1832

  • Filing Date:

    08/09/2017

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

YOLANDA OROZCO

LAURA A. SEIGLE

AMY D. HOGUE

 

Party Details

Plaintiffs and Petitioners

BIRDSELL CHRISTINA

BIRDSELL JOHN

Respondents and Defendants

FOOD BROKERS INTERNATIONAL INC

DOES 1 TO 50

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

BOHN JEFFREY D. ESQ.

Defendant Attorney

FENG IRVING Y.

 

Court Documents

Motion to Quash Service of Summons

10/5/2018: Motion to Quash Service of Summons

Minute Order

12/7/2018: Minute Order

Order

12/7/2018: Order

Notice of Ruling

12/19/2018: Notice of Ruling

Minute Order

1/23/2019: Minute Order

Unknown

4/19/2019: Unknown

Minute Order

4/19/2019: Minute Order

Order - Dismissal

4/24/2019: Order - Dismissal

PROOF OF SERVICE SUMMONS, COMPLAINT

6/6/2018: PROOF OF SERVICE SUMMONS, COMPLAINT

REQUEST FOR DISMISSAL

6/6/2018: REQUEST FOR DISMISSAL

REQUEST FOR ENTRY OF DEFAULT

6/6/2018: REQUEST FOR ENTRY OF DEFAULT

PROOF OF SERVICE SUMMONS, COMPLAINT

6/6/2018: PROOF OF SERVICE SUMMONS, COMPLAINT

PROOF OF SERVICE SUMMONS, COMPLAINT

6/12/2018: PROOF OF SERVICE SUMMONS, COMPLAINT

PROOF OF SERVICE SUMMONS, COMPLAINT

6/12/2018: PROOF OF SERVICE SUMMONS, COMPLAINT

REQUEST FOR ENTRY OF DEFAULT

6/12/2018: REQUEST FOR ENTRY OF DEFAULT

DECLARATION REGARDING EX PARTE NOTICE

8/22/2017: DECLARATION REGARDING EX PARTE NOTICE

EX PARTE APPLICATION MOVING FOR ORDER TO AMEND THE FILING DATE OF PLAINTIFFS' COMPLAINT NUNC PRO TUNC

8/22/2017: EX PARTE APPLICATION MOVING FOR ORDER TO AMEND THE FILING DATE OF PLAINTIFFS' COMPLAINT NUNC PRO TUNC

Minute Order

8/22/2017: Minute Order

10 More Documents Available

 

Docket Entries

  • 04/24/2019
  • DocketOrder - Dismissal; Filed by Clerk

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  • 04/19/2019
  • Docketat 08:30 AM in Department 4B, Laura A. Seigle, Presiding; Order to Show Cause Re: Failure to File Proof of Service - Not Held - Taken Off Calendar by Court

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  • 04/19/2019
  • DocketCertificate of Mailing for (Minute Order (Order to Show Cause Re: Failure to File Proof of Service) of 04/19/2019); Filed by Clerk

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  • 04/19/2019
  • DocketMinute Order ( (Order to Show Cause Re: Failure to File Proof of Service)); Filed by Clerk

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  • 02/11/2019
  • Docketat 08:30 AM in Department 4B, Laura A. Seigle, Presiding; Jury Trial - Not Held - Advanced and Vacated

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  • 01/23/2019
  • Docketat 10:00 AM in Department 4B, Laura A. Seigle, Presiding; Final Status Conference - Not Held - Continued - Court's Motion

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  • 01/23/2019
  • DocketMinute Order ( (Final Status Conference)); Filed by Clerk

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  • 12/19/2018
  • DocketNotice of Ruling; Filed by FOOD BROKERS INTERNATIONAL INC (Defendant)

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  • 12/07/2018
  • Docketat 1:30 PM in Department 7, Amy D. Hogue, Presiding; Hearing on Motion to Quash Service of Summons - Held - Motion Granted

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  • 12/07/2018
  • DocketMinute Order ((Hearing on Motion to Quash Service of Summons)); Filed by Clerk

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20 More Docket Entries
  • 08/22/2017
  • DocketDECLARATION REGARDING EX PARTE NOTICE

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  • 08/22/2017
  • DocketDECLARATION OF JEFFREY D. BOHN

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  • 08/22/2017
  • DocketMinute Order

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  • 08/22/2017
  • DocketEX PARTE APPLICATION MOVING FOR ORDER TO AMEND THE FILING DATE OF PLAINTIFFS' COMPLAINT NUNC PRO TUNC

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  • 08/22/2017
  • DocketDeclaration; Filed by CHRISTINA BIRDSELL (Plaintiff); JOHN BIRDSELL (Plaintiff)

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  • 08/22/2017
  • DocketMinute order entered: 2017-08-22 00:00:00; Filed by Clerk

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  • 08/22/2017
  • DocketMEMORANDUM OF POINTS AND AUTHORITY IN SUPPORT OF EX PARTE APPLICATION MOVING FOR ORDER TO AMEND THE FILING DATE OF PLAINTIFFS' COMPLAINT NUNC PRO TUNC

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  • 08/09/2017
  • DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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  • 08/09/2017
  • DocketSUMMONS

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  • 08/09/2017
  • DocketComplaint; Filed by CHRISTINA BIRDSELL (Plaintiff); JOHN BIRDSELL (Plaintiff)

    [+] Read More [-] Read Less

Tentative Rulings

Case Number: ****1832    Hearing Date: July 08, 2020    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA 

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

CHRISTINA BIRDSELL, et al.,

Plaintiff,

v.

FOOD BROKERS INTERNATIONAL, INC. et al.,

Defendants.

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****1832

[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO CORRECT FILING DATE PRO NUNC TUNC

Dept. 27

1:30 p.m.

July 9, 2020

This action arises out of a slip and fall incident that occurred on August 8, 2015.  The filing stamp shows the Complaint was filed on August 9, 2017.  Plaintiffs Christina Birdsell and John Birdsell move to correct the filing date pro nunc tunc to reflect a filing date of August 8, 2017 Plaintiffs attorneys believed that the summons and complaint were to be filed at the Catalina Courthouse and faxed them, but the clerk at the Catalina Courthouse rejected the summons and complaint and ordered Plaintiffs to file the papers at Stanley Mosk.  The papers were then faxed with the clerk at the Stanley Mosk Courthouse.  A conformed copy of the Complaint (showing a filing stamp of August 9, 2017) was returned August 10, 2017.  

Procedural History

The Motion was first filed on January 6, 2020 and accompanied by the Declaration of Jeffrey D. Bohn. On February 10, 2020, the Court heard oral argument by Plaintiff’s counsel Daniel Carter — Defendant did not appearand continued the hearing to March 13, 2020.  On March 2, 2020, Mr. Carter submitted a supplemental memorandum of points and authoritiesAt the March 13, 2020 hearing, defense counsel appeared but Plaintiff’s counsel did not; the Court again continued the hearing to April 3, 2020.  

Defendant filed its opposition on March 20.  On March 30, 2020, Plaintiffs filed their reply brief with supplemental declarations by Jeffrey D. Bohn, Daniel, L. Carter, and Malicha AlcantarAs stated above, Mr. Bohn and Mr. Carter are Plaintiffs attorneys; Ms. Alcantar is a paralegal who formerly worked for Mr. Bohn.  

Due to the COVID-19 Pandemic, two more minute orders were issued continuing this hearing to July 9, 2020.

Discussion

According to the declarations and evidence submitted with the Motion on January 6, 2020 and the declarations and evidence filed on March 2, 2020, Plaintiff’s counsel submitted their summons and complaint via fax filing to the Catalina Couthouse on August 8, 2017 at 2:24 p.m. and the transmission took 7 minutes and 39 seconds. (Holt Decl., Ex. A.)  Later that day, Plaintiffs’ counsel received email confirmation of the filing at 4:34 p.m. (Alcantar Decl., Ex. A.) 

Plaintiffs’ counsel received a notice of rejection on August 9, 2017 at 10:55 a.m. rejecting the summons and complaint because it had to be filed in Stanley Mosk Courthouse, not the Catalina Courthouse.  (Bohn Decl., Ex. 2.). Plaintiffs then submitted their Summons and Complaint on August 9, 2017 to the Stanley Mosk Courthouse via fax and received a conformed copy on August 10, 2017 with a file stamp of August 9, 2017. (Bohn Decl., Ex. 5.)

“The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”  (Code of Civ. Proc., ; 473, subd. (d).)

California Rule of Court 2.301 permits sending documents to a court using a fax machine that, among other things, is capable of generating a transmission record.  A transmission record is defined a “document printed by the sending fax machine, stating . . . The number of pages sent, the transmission time and date, and an indication of any errors in transmission.”  (CRC 2.301 (6).)  

California Rule of Court 2.304 allows fax filing “directly to any court that, by local rule, has provided for direct fax filing.”   CRC 2.304 (d) provides that a motion for an order filing the document nunc pro tunc must be accompanied by a declaration attaching a copy of the transmission record if: (1) the faxed document was not filed due to an error in the transmission of the document that was unknown to the sending party; or (2) the court did not process the document after receiving the document. 

In opposition, Defendant first contends Plaintiffs Motion does not comply with California Rules of Court 2.304, 2.301, and 5.111 because the supporting declarations are defective The Court is unpersuaded. stated in CRC 2.304 (d) apply in this case: there was no error in the transmission, and the court processed the document, albeit on the next day after issuing a notice of rejection.  As for whether Plaintiffs’ counsel followed Rule 2.301 and used a valid fax machine to fax the documents, the Court finds the declarations substantially complied with Rule 2.301because the only things missing from the transmission record is the number of pages sent. The Court also rejects Defendant’s reliance on CRC 5.111because Title 5 of the Rules of Court is applicable to family court Thus, the declarations in support of the Motion substantially comply with the California Rules of Court.  

Second, Defendant argues the summons and complaint were not timely filed because the Catalina Courthouse is only open from 8:30 to 1:00 p.m. and the documents were filed at 2:24 p.m., which is allegedly “after business hours.”  The Court is once again unpersuaded.  Defendant does not cite to any rule of court or local rules that impose a filing deadline based on the hours that a courthouse is open.  

Lastly, Defendant attempts to create evidentiary issues with Plaintiffs’ declarations and exhibits. Defendants do not contest the contents of the transmission records or email confirmations, but cite to typos in Plaintiffs’ attorney declarations.  Again, the Court is not convinced. The declarations submitted in support of the Motion may not have been artfully or carefully drafted, but the authenticated documentary evidence submitted provides no ambiguities about the fax numbers used, the time of transmission, and the time the transmission was confirmed.  

Accordingly, the Court GRANTS Plaintiffs’ Motion and orders the Complaint to be filed nunc pro tunc on August 8, 2017.  

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.  

Dated this 9th day of July 2020

Hon. Edward B. Moreton, Jr.

Judge of the Superior Court



Case Number: ****1832    Hearing Date: March 13, 2020    Dept: 27

[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO CORRECT FILING DATE

This action arises out of a slip and fall incident on August 8, 2015. The complaint and summon are file-stamped August 9, 2017. Plaintiffs move to correct the filing date to reflect a date of August 8, 2017 on grounds that the clerk at the Catalina Courthouse improperly rejected the faxed summons and complaint.

Plaintiffs’ counsel states that his paralegal spoke to a clerk at the Long Beach Courthouse who said that the Catalina Courthouse accepted civil unlimited filings via facsimile. On August 8, 2017, at 4:32 p.m., Plaintiffs’ counsel faxed the complaint to the Catalina Courthouse. On August 9, 2017, he receive a notice of rejection stating the complaint had to be filed in the Stanley Mosk Courthouse. On August 9, 2017, Plaintiffs submitted their complaint to the Stanley Mosk Courthouse via its fax number and received a conformed copy on August 10, 2017.

Plaintiffs argue that pursuant to California Rule of Court 2.304, the Catalina Courthouse was required to accept the filing of the complaint via facsimile on August 8, 2017. That rule allows fax filing “directly to any court that, by local rule, has provided for direct fax filing.” However, the Los Angeles Superior Court local rules did not provide for direct fax filing of personal injury cases at the Catalina Courthouse. Instead, Los Angeles County Superior Court Rule 2.3 (a)(1)(A) in effect in August 2017 stated, “Every unlimited civil tort action for bodily injury, wrongful death, or damage to personal property (hereinafter referred to as ‘Personal Injury Action’) must be filed in the Central District at the Stanley Mosk Courthouse, or in the North District at the Michael Antonovich Antelope Valley Courthouse.” Plaintiffs did not comply with the local rules when they faxed their complaint in a personal injury case to the Catalina Courthouse.

Moreover, Los Angeles County Superior Court Rule 2.22 (b)(2) in effect in August 2017 stated, “A facsimile received for filing on a court holiday or after 4:30 p.m. on a court day after the time at which the clerk stops accepting filings at the filing counter will be deemed to have been filed on the next court day.” When Plaintiff’s counsel sent the fax on August 8, 2017, at 4:32 p.m., the fax was already too late to be deemed filed on August 8, 2017, even if the Catalina Courthouse had been the proper courthouse for filing a personal injury case.

At the hearing on February 10, 2020, Plaintiff’s counsel said that the Declaration of Jeffrey Bohn stating that the complaint had been sent by fax at 4:32 p.m. was incorrect and asked for time to present new evidence. The Court continued the hearing. On March 2, 2020, Plaintiff submitted additional evidence.

The new declaration of Daniel Carter states Plaintiffs’ former counsel faxed the complaint and summons on August 8, 2017 at 2:24 p.m. and that the time referenced in the original motion (4:32 p.m.) was based on the time Plaintiffs’ former counsel received confirmation of the filing, not the time of transmission. The new declaration of Jonathan Holt states he accessed the records of the fax system used to transmit the complaint and summons, and the logs showed the documents were faxed at 2:24 p.m., the transmission took approximately 7 minutes and 39 seconds, and therefore, the Catalina Courthouse should have received the documents at 2:32 p.m.

Under the local rules, Plaintiff should have submitted the personal injury complaint at the Mosk Courthouse. However, given Plaintiffs’ claim that a clerk stated Plaintiffs could file at the Catalina Courthouse, and that the new evidence shows the filing was timely, Plaintiffs’ motion is GRANTED. The complaint is deemed filed as of August 8, 2017.

Plaintiffs have not filed a proof of service showing service of the complaint and summons and are ordered to serve the complaint and summons forthwith. Trial is set for September 18, 2020 at 8:30 a.m. The Final Status Conference is set for September 4, 2020 at 10 a.m. Plaintiffs are to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative.



Case Number: ****1832    Hearing Date: February 10, 2020    Dept: 27

[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO CORRECT FILING DATE

This action arises out of a slip and fall incident on August 8, 2015. The complaint and summon are file-stamped August 9, 2017. Plaintiffs move to correct the filing date to reflect a date of August 8, 2017 on grounds that the clerk at the Catalina Courthouse improperly rejected the faxed summons and complaint.

Plaintiffs’ counsel states that his paralegal spoke to a clerk at the Long Beach Courthouse who said that the Catalina Courthouse accepted civil unlimited filings via facsimile. On August 8, 2017, at 4:32 p.m., Plaintiffs’ counsel faxed the complaint to the Catalina Courthouse. On August 9, 2017, he receive a notice of rejection stating the complaint had to be filed in the Stanley Mosk Courthouse. On August 9, 2017, Plaintiffs submitted their complaint to the Stanley Mosk Courthouse via its fax number and received a conformed copy on August 10, 2017.

Plaintiffs argue that pursuant to California Rule of Court 2.304, the Catalina Courthouse was required to accept the filing of the complaint via facsimile on August 8, 2017. That rule allows fax filing “directly to any court that, by local rule, has provided for direct fax filing.” However, the Los Angeles Superior Court local rules did not provide for direct fax filing of personal injury cases at the Catalina Courthouse. Instead, Los Angeles County Superior Court Rule 2.3 (a)(1)(A) in effect in August 2017 stated, “Every unlimited civil tort action for bodily injury, wrongful death, or damage to personal property (hereinafter referred to as ‘Personal Injury Action’) must be filed in the Central District at the Stanley Mosk Courthouse, or in the North District at the Michael Antonovich Antelope Valley Courthouse.” Plaintiffs did not comply with the local rules when they faxed their complaint in a personal injury case to the Catalina Courthouse.

Moreover, Los Angeles County Superior Court Rule 2.22 (b)(2) in effect in August 2017 stated, “A facsimile received for filing on a court holiday or after 4:30 p.m. on a court day after the time at which the clerk stops accepting filings at the filing counter will be deemed to have been filed on the next court day.” When Plaintiff’s counsel sent the fax on August 8, 2017, at 4:32 p.m., the fax was already too late to be deemed filed on August 8, 2017, even if the Catalina Courthouse had been the proper courthouse for filing a personal injury case.

Therefore, the clerk’s office did not have a ministerial duty to file-stamp the complaint as filed on August 8, 2017. Plaintiffs’ motion is DENIED.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative.



Case Number: ****1832    Hearing Date: October 30, 2019    Dept: 4B

[TENTATIVE] ORDER RE: MOTION TO SET ASIDE DISMISSAL

On August 7, 2017, plaintiffs Christina Birdsell and her husband, John Birdsell (collectively, “Plaintiffs”) filed this action against defendant Food Brokers International, Inc. (“Defendant”) for premises liability arising from a August 8, 2015 incident. Plaintiff obtained entry of default on June 6, 2018, but Defendants moved to quash service, which the Court granted on December 7, 2018. Plaintiffs did not thereafter serve Defendants. On January 23, 2019, the Court set an OSC for April 19, 2019 regarding Plaintiffs’ failure to effect service of the complaint and summons, stating that Plaintiff did not file a proof of service by that date, the Court might dismiss the case.

Mr. Bohn failed to appear at on April 19, 2019 and did not file a proof of service. The Court dismissed the action for failure to appear, failure to file proof of service, and failure to prosecute.

Plaintiffs argue that the Court did not have discretion to dismiss the action on April 19, 2019 because the action was filed on August 9, 2017 and it had not yet been two years. Code of Civil Procedure section 538.410, subd. (a) prohibits a court from dismissing an action for delay in prosecution except if service is not made within two years after the action is commenced.

Plaintiffs further argue that dismissal should be set aside under Civil Procedure section 473(b) due to attorney neglect. “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.” (Code Civ. Proc., ; 473, subd. (b).) Application for this relief shall be made within a reasonable time, in no case exceeding six months, after judgment, dismissal, order, or proceeding was taken. (Ibid.) “[T]he 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.” (Ibid.) Plaintiffs’ counsel states he missed the April 19, 2019 dates because he was caring for his sick daughter.

This Motion to set aside dismissal was timely filed within six months of dismissal and the Court finds dismissal was due to counsel’s excusable neglect as stated in the Declaration of Jeffrey Bohn. The Motion to set aside the April 19, 2019 dismissal is GRANTED and the action is reinstated. Trial is set for March 18, 2020 in Department 4B and the final status conference is set for March 4, 2020 in Department 4B.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.



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