Pending - Other Pending
Personal Injury - Motor Vehicle
LAURA A. SEIGLE
BANNER BRIAN | ESQ.
8/30/2017: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)
2/13/2019: Minute Order
2/7/2019: Proof of Personal Service
Docketat 08:30 AM in Department 4B, Laura A. Seigle, Presiding; Non-Jury Trial - Not Held - Advanced and Vacated[+] Read More [-] Read Less
DocketAnswer; Filed by ANNABELLA PRICE (Defendant)[+] Read More [-] Read Less
Docketat 10:00 AM in Department 4B, Laura A. Seigle, Presiding; Final Status Conference - Not Held - Advanced and Vacated[+] Read More [-] Read Less
DocketMinute Order ( (Final Status Conference)); Filed by Clerk[+] Read More [-] Read Less
DocketProof of Personal Service; Filed by ELIZABETH ELIZALDE (Plaintiff)[+] Read More [-] Read Less
DocketSUMMONS[+] Read More [-] Read Less
DocketComplaint; Filed by ELIZABETH ELIZALDE (Plaintiff)[+] Read More [-] Read Less
DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)[+] Read More [-] Read Less
Case Number: ****4225 Hearing Date: December 27, 2019 Dept: 4B
[TENTATIVE] ORDER RE: MOTION TO SET ASIDE DISMISSAL
On August 30, 2017, plaintiff Elizabeth Elizalde filed this action against defendants Annabelle Price and Cal Stock for injuries and damages arising from a September 3, 2015 motor vehicle accident. On October 16, 2019, the Court dismissed the action as to Cal Stock because Plaintiff failed to appear at an OSC re: dismissal for failure to file a proof of service of summons on Cal Stock. Plaintiff’s counsel claims he mistakenly forgot to calendar the OSC and requests the action be reinstated as to Cal Stock.
Cal Stock opposes the motion on the grounds that the dismissal was not predicated on Plaintiff’s failure to appear at the OSC, but because of Plaintiff did not serve Cal Stock for over two years after filing the complaint. The October 16, 2019 minute order states the dismissal was pursuant to Code of Civil Procedure section 583.420, subdivision (a)(1), which allows a court to dismiss a case when service is not made within two years.
“[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.” (Code Civ. Proc., ; 473, subd. (b).) Plaintiff’s counsel submitted a declaration stating his office had not calendared the OSC hearing date.
Accordingly, the Motion to set aside the October 16, 2019 dismissal is GRANTED and the action is reinstated. Plaintiff should not expect a continuance of the February 26, 2020 trial date based on her failure to serve Cal Stock, as she has had more than two years to accomplish the service. The Court sets an OSC re dismissal for failure to file a proof of service of summons for February 14, 2020 at 8:30 a.m.
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.
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