This case was last updated from Los Angeles County Superior Courts on 11/26/2019 at 10:32:29 (UTC).

DAVID TATE VS ZANMI FILMS LLC ET AL

Case Summary

On 11/07/2017 DAVID TATE filed a Contract - Other Contract lawsuit against ZANMI FILMS LLC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is GREGORY KEOSIAN. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2653

  • Filing Date:

    11/07/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

GREGORY KEOSIAN

 

Party Details

Plaintiff

TATE DAVID

Defendants

ZANMI FILMS LLC

ARTIST VIEW ENTERTAINMENT INC

PHILADELPHIA INDEMNITY INSURANCE COMPANY

Attorney/Law Firm Details

Plaintiff Attorney

HERRERA ALEJANDRO H.

Defendant Attorneys

WOOLLS PEER DOLLINGER & SCHER

DARLINGALDERTON LISA MARIE

 

Court Documents

Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL FOR FAIURE TO FILE PROOF OF...)

9/25/2019: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL FOR FAIURE TO FILE PROOF OF...)

Order - ORDER RULING RE: DEFENDANT PHILADELPHIA INDEMNITY INSURANCE COMPANY'S DEMURRER AND MOTION TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT

7/25/2019: Order - ORDER RULING RE: DEFENDANT PHILADELPHIA INDEMNITY INSURANCE COMPANY'S DEMURRER AND MOTION TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT

Notice - NOTICE OF NON-OPPOSITION TO PHILADELPHIA INDEMNITY INSURANCE COMPANY'S DEMURRER TO COMPLAINT AND MOTION TO STRIKE

7/18/2019: Notice - NOTICE OF NON-OPPOSITION TO PHILADELPHIA INDEMNITY INSURANCE COMPANY'S DEMURRER TO COMPLAINT AND MOTION TO STRIKE

Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITH MOTION TO STRIKE (CCP 430.10); CAS...)

7/25/2019: Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITH MOTION TO STRIKE (CCP 430.10); CAS...)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON DEMURRER - WITH MOTION TO STRIKE (CCP 430.10); CAS...) OF 07/25/2019

7/25/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON DEMURRER - WITH MOTION TO STRIKE (CCP 430.10); CAS...) OF 07/25/2019

Certificate of Mailing for - CERTIFICATE OF MAILING FOR MINUTE ORDER (CASE MANAGEMENT CONFERENCE) OF 07/01/2019

7/1/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR MINUTE ORDER (CASE MANAGEMENT CONFERENCE) OF 07/01/2019

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

7/1/2019: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

Demurrer - with Motion to Strike (CCP 430.10)

7/2/2019: Demurrer - with Motion to Strike (CCP 430.10)

Motion to Strike (not initial pleading)

7/2/2019: Motion to Strike (not initial pleading)

Case Management Statement

6/14/2019: Case Management Statement

Amended Complaint - AMENDED COMPLAINT 1ST

6/3/2019: Amended Complaint - AMENDED COMPLAINT 1ST

Application for Publication - APPLICATION FOR ORDER TO PUBLISH

1/14/2019: Application for Publication - APPLICATION FOR ORDER TO PUBLISH

Notice of Ruling - NOTICE OF RULING RULING RE DEFENDANT PHILADELPHIA INDEMNITY INSURANCE COMPANY'S DEMURRER AND MOTION TO STRIKE PORTIONS OF THE COMPLAINT

5/1/2019: Notice of Ruling - NOTICE OF RULING RULING RE DEFENDANT PHILADELPHIA INDEMNITY INSURANCE COMPANY'S DEMURRER AND MOTION TO STRIKE PORTIONS OF THE COMPLAINT

Notice of Ruling

5/9/2019: Notice of Ruling

Notice of Case Management Conference

5/1/2019: Notice of Case Management Conference

Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITH MOTION TO STRIKE (CCP 430.10); ORD...)

5/1/2019: Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITH MOTION TO STRIKE (CCP 430.10); ORD...)

Notice Re: Continuance of Hearing and Order

4/11/2019: Notice Re: Continuance of Hearing and Order

Notice Re: Continuance of Hearing and Order

4/11/2019: Notice Re: Continuance of Hearing and Order

37 More Documents Available

 

Docket Entries

  • 12/02/2019
  • Hearing12/02/2019 at 09:00 AM in Department 61 at 111 North Hill Street, Los Angeles, CA 90012; Case Management Conference

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  • 09/25/2019
  • Docketat 09:00 AM in Department 61, Gregory Keosian, Presiding; Order to Show Cause Re: Dismissal (For Faiure to File Proof of Service, Notice of Acknowledgment and Receipt, or Application for Publication as to Defendants ARTIST VIEW ENTERTAINMENT, INC and ZANMI FILMS LLC) - Held

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  • 09/25/2019
  • DocketMinute Order ( (Order to Show Cause Re: Dismissal For Faiure to File Proof of...)); Filed by Clerk

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  • 07/25/2019
  • Docketat 09:00 AM in Department 61, Gregory Keosian, Presiding; Hearing on Demurrer - with Motion to Strike (CCP 430.10) - Held

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  • 07/25/2019
  • Docketat 09:00 AM in Department 61, Gregory Keosian, Presiding; Case Management Conference - Held

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  • 07/25/2019
  • DocketOrder (Ruling re: Defendant Philadelphia Indemnity Insurance Company's Demurrer and Motion to Strike Portions of the First Amended Complaint); Filed by Clerk

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  • 07/25/2019
  • DocketMinute Order ( (Hearing on Demurrer - with Motion to Strike (CCP 430.10); Cas...)); Filed by Clerk

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  • 07/25/2019
  • DocketCertificate of Mailing for ((Hearing on Demurrer - with Motion to Strike (CCP 430.10); Cas...) of 07/25/2019); Filed by Clerk

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  • 07/18/2019
  • DocketNotice (of Non-Opposition to Philadelphia Indemnity Insurance Company's Demurrer to Complaint and Motion to Strike); Filed by Philadelphia Indemnity Insurance Company (Defendant)

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  • 07/02/2019
  • DocketMotion to Strike (not initial pleading); Filed by Philadelphia Indemnity Insurance Company (Defendant)

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66 More Docket Entries
  • 02/07/2018
  • DocketMinute Order

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  • 02/07/2018
  • DocketMinute order entered: 2018-02-07 00:00:00; Filed by Clerk

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  • 02/02/2018
  • DocketCase Management Statement; Filed by Plaintiff/Petitioner

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  • 11/14/2017
  • DocketORDER TO SHOW CAUSE HEARING

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  • 11/14/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 11/14/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 11/14/2017
  • DocketOSC-Failure to File Proof of Serv; Filed by Clerk

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  • 11/07/2017
  • DocketSUMMONS

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  • 11/07/2017
  • DocketComplaint; Filed by DAVID TATE (Plaintiff)

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  • 11/07/2017
  • DocketCOMPLAINT FOR 1) BREACH OF CONTRACT; ETC

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Tentative Rulings

Case Number: ****2653 Hearing Date: June 1, 2022 Dept: 61

Plaintiff David Tate’s Motion to Vacate June 29, 2021 Order of Dismissal is DENIED.

I. MOTION TO VACATE ORDER DISMISSING CLAIM

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.

Plaintiff moves to vacate the dismissal on the grounds that he attempted on three occasions before the dismissal to obtain leave to serve Defendants Zanmi and AVE by publication and these applications were rejected by the clerk despite complying with all requirements for service by publication. (Herrera Decl. 5–10.)

This motion is untimely. The time in which to seek relief from an order of dismissal under Code of Civil Procedure 473, subd. (b), is “within a reasonable time, in no case exceeding six months.” (Code Civ. Proc. 473, subd. (b).) Dismissal here was entered on June 29, 2021. The present motion was filed almost a year later, on May 6, 2022. Plaintiff provides no explanation for the delay. “Relief can not be granted under section 473 of the Code of Civil Procedure if the proceeding invoking relief is instituted or the motion made more than six months after the date of entry of the default. The motion was made too late, and the trial court simply lacked jurisdiction to act under it.” (Thompson v. Vallembois (1963) 216 Cal.App.2d 21, 24.)

The motion is therefore DENIED.



Case Number: ****2653    Hearing Date: July 09, 2020    Dept: 61

  1. MOTION TO VACATE ORDER DISMISSING CLAIM

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 . . . . 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 . . . 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.

Tate argues that the order of July 25, 2019, dismissing PIIC from the case should be vacated because of PIIC’s extrinsic fraud in concealing a certificate of insurance that would have vindicated Tate’s case. (Motion at p. 4.) Tate notes that PIIC in its previous demurrers sought relief on the grounds that Tate was not an insured under any PIIC policy and had set forth no facts to establish any sort of contractual relationship. (Motion at p. 4.)

Tate argues that he propounded a request for production on PIIC on May 2, 2019, asking for a copy of the insurance policy relating to claim number 1155463 and file number 13740. (Motion Exh. A, No. 8.) Tate also asked informally for the “policy and related documents” in an email, to which PIIC responded with a copy of policy no. PHPK1222812. (Motion Exh. C.)

Tate alleges that PIIC omitted from its responses a certificate of insurance under that same policy number listing Tate as the certificate holder and stating, “CERTIFICATE HOLDER ADDED AS LOSS PAYEE AND ADDITONAL INSURED AS THEIR INTEREST MAY APPEAR.” (Motion Exh. D.) Tate also argues that the certificate states that “3rd party prop damage” is covered. (Motion Exh. D.)

In response, PIIC notes that the certificate of insurance upon which Tate relies does not purport to establish or alter any contract or policy. (Opposition at p. 4.) PIIC also notes that the only potential means for the certificate to establish coverage is as a third-party liability policy, which is not the nature of Tate’s claim, and which was a key argument in PIIC’s earlier unopposed demurrer. (Opposition at p. 4.) PIIC also notes that Tate does not explain how or when he uncovered the certificate, and thus makes no case that he acted diligently in seeking this relief. (Opposition at pp. 4–5.) Finally, PIIC argues that it did not produce the certificate because no certificate was asked for, and produced the policy when asked. (Opposition at pp. 5–6.)

PIIC relies on the following authority related to setting aside default judgments for extrinsic fraud: “To set aside a judgment based on extrinsic fraud or extrinsic mistake, the moving party must satisfy three elements: First, the defaulted party must demonstrate that it has a meritorious case. Secondly, the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Lastly, the moving party must demonstrate diligence in seeking to set aside the default once it had been discovered.” (Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 290–291.)

The court agrees with PIIC. A major part of PIIC’s prior demurrer was addressed to a provision of the applicable policy allowing benefits for one who possessed a certificate of insurance, as Tate presents here, and explaining why the existence of such a certificate, if proven, would not preserve Tate’s claims from dismissal. The court noted in its ruling that Tate had presented no opposition to the demurrer nor any argument on that point, and no argument is offered in the present motion either. The court has no basis to conclude that Tate could present a meritorious claim, even if relief were granted.

Additionally, PIIC is correct that the circumstances of Tate’s discovery of the certificate are entirely vague, preventing this court from determining when, why, or how this new evidence was discovered, or if Tate acted with diligence in seeking the relief he claims here.

The motion is accordingly DENIED.

Defendant to provide notice.



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