This case was last updated from Los Angeles County Superior Courts on 11/23/2020 at 22:26:24 (UTC).

KRISTINE KELLY VS NIKKI PALLEY

Case Summary

On 09/22/2017 KRISTINE KELLY filed a Personal Injury - Motor Vehicle lawsuit against NIKKI PALLEY. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are LAURA A. SEIGLE and EDWARD B. MORETON. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6826

  • Filing Date:

    09/22/2017

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Personal Injury - Motor Vehicle

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

LAURA A. SEIGLE

EDWARD B. MORETON

 

Party Details

Plaintiff, Petitioner and Appellant

KELLY KRISTINE

Defendants and Respondents

DOES 1 THROUGH 25

PALLEY NIKKI

PALLEY MARTA (DOE 1)

PALLEY MARTA DOE 1

MARTA PALLEY DOE 1

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

OLAN LAW CORPORATION

OLAN DAVID RAPHAEL

Defendant Attorney

MARYANSKI DONNA M.

 

Court Documents

Notice - NOTICE NOTICE OF ENTRY OF JUDGMENT

2/24/2020: Notice - NOTICE NOTICE OF ENTRY OF JUDGMENT

Appeal - Notice of Default Issued

7/8/2020: Appeal - Notice of Default Issued

Appeal - Notice of Non-Compliance - APPEAL - NOTICE OF NON-COMPLIANCE NOA: 05/11/20 B305955

8/10/2020: Appeal - Notice of Non-Compliance - APPEAL - NOTICE OF NON-COMPLIANCE NOA: 05/11/20 B305955

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY ADJUDICATION)

8/23/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY ADJUDICATION)

Motion to Vacate - MOTION TO VACATE NOTICE OF MOTION ANS MOTION TO VACATE JUDGMENT

9/6/2019: Motion to Vacate - MOTION TO VACATE NOTICE OF MOTION ANS MOTION TO VACATE JUDGMENT

Proof of Service (not Summons and Complaint)

9/9/2019: Proof of Service (not Summons and Complaint)

Ex Parte Application - EX PARTE APPLICATION FOR AN ORDER TO SHORTEN TIME TO HEAR PLAINTIFF'S MOTION TO VACATE JUDGMENT

9/10/2019: Ex Parte Application - EX PARTE APPLICATION FOR AN ORDER TO SHORTEN TIME TO HEAR PLAINTIFF'S MOTION TO VACATE JUDGMENT

Reply - REPLY IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION

8/15/2019: Reply - REPLY IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION

Opposition - OPPOSITION TO DEFENDANT'S NOTICE OF MOTION FOR SUMMARY JUDGMENT ON COMPLAINT

8/6/2019: Opposition - OPPOSITION TO DEFENDANT'S NOTICE OF MOTION FOR SUMMARY JUDGMENT ON COMPLAINT

Response - RESPONSE TO DEFENDANT'S SEPARATE STATEMENT IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION

8/7/2019: Response - RESPONSE TO DEFENDANT'S SEPARATE STATEMENT IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION

Separate Statement

5/31/2019: Separate Statement

Answer

12/7/2018: Answer

Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC))

3/22/2019: Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC))

Separate Statement

3/13/2019: Separate Statement

Minute Order - Minute Order (Final Status Conference)

3/8/2019: Minute Order - Minute Order (Final Status Conference)

Proof of Personal Service

12/3/2018: Proof of Personal Service

AMENDMENT TO COMPLAINT -

6/12/2018: AMENDMENT TO COMPLAINT -

PROOF OF SERVICE SUMMONS -

6/18/2018: PROOF OF SERVICE SUMMONS -

35 More Documents Available

 

Docket Entries

  • 09/22/2020
  • Docketat 08:30 AM in Department 4B; (OSC RE Dismissal) - Not Held - Vacated by Court

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  • 09/22/2020
  • DocketAppeal - Remittitur - Appeal Dismissed (B305955); Filed by Clerk

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  • 08/10/2020
  • DocketAppeal - Notice of Non-Compliance (NOA: 05/11/20 B305955); Filed by Clerk

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  • 07/08/2020
  • DocketAppeal - Notice of Default Issued; Filed by Clerk

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  • 05/15/2020
  • DocketAppeal - Notice of Filing of Notice of Appeal; Filed by Clerk

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  • 05/11/2020
  • DocketAppeal - Notice of Appeal/Cross Appeal Filed; Filed by Kristine Kelly (Appellant)

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  • 03/05/2020
  • Docketat 08:30 AM in Department 27, Edward B. Moreton, Presiding; Order to Show Cause Re: (Filing of Judgment as to Marta Palley) - Not Held - Vacated by Court

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  • 02/24/2020
  • DocketJudgment ([PROPOSED] JUDGMENT); Filed by Marta Palley (Doe 1) (Defendant)

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  • 02/24/2020
  • DocketNotice (NOTICE OF ENTRY OF JUDGMENT); Filed by Marta Palley (Doe 1) (Defendant)

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  • 01/03/2020
  • Docketat 08:30 AM in Department 4B; Order to Show Cause Re: Dismissal (for Failure to File Proof of Service of Nikki Palley) - Held

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47 More Docket Entries
  • 03/08/2019
  • DocketMinute Order ( (Final Status Conference)); Filed by Clerk

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  • 12/07/2018
  • DocketAnswer; Filed by Marta Palley (Doe 1) (Defendant)

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  • 12/03/2018
  • DocketProof of Personal Service; Filed by Kristine Kelly (Plaintiff)

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  • 06/18/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 06/18/2018
  • DocketProof-Service/Summons; Filed by Kristine Kelly (Plaintiff)

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  • 06/12/2018
  • DocketAmendment to Complaint; Filed by Kristine Kelly (Plaintiff)

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  • 06/12/2018
  • DocketAMENDMENT TO COMPLAINT

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  • 09/22/2017
  • DocketSUMMONS

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  • 09/22/2017
  • DocketComplaint; Filed by Kristine Kelly (Plaintiff)

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  • 09/22/2017
  • DocketCOMPLAINT FOR DAMAGES: 1. NEGLIGENCE

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Tentative Rulings

Case Number: BC676826    Hearing Date: November 13, 2019    Dept: 4B

[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO VACATE JUDGMENT

On September 22, 2017, Plaintiff Kristine Kelly (“Plaintiff”) filed this negligence action against Defendant Nikki Palley (Nikki) and Does 1 through 25 arising out of an automobile accident on January 12, 2016. On June 12, 2018, Plaintiff named Nikki’s daughter, Marta Palley (“Marta”), as DOE 1.

Marta moved for summary adjudication, arguing Plaintiff’s negligence action was barred by the statute of limitations. The Court granted Marta’s motion on August 23, 2019. The Court explained in detail the undisputed evidence established that at the time of the accident, Plaintiff knew Marta was the driver of the car that hit Plaintiff. Indeed, Plaintiff admitted in discovery responses, “Plaintiff was provided information regarding Marta on the date of accident.” The undisputed evidence also showed that shortly after the accident, Plaintiff’s counsel wrote letters to Marta’s insurer stating that Marta was the driver of the car that hit Plaintiff’s vehicle. The Court further held that, even assuming Plaintiff had forgotten the identity of the driver by the time her lawyer filed the complaint, Plaintiff did not show she had “reviewed readily available information likely to refresh . . . her memory,” as required to take advantage of the relation-back doctrine. (Woo v. Superior Court (1995) 75 Cal.App.4th 169, 180.) In particular, Plaintiff did not explain whether she reviewed the letters from her attorney identifying Marta as the driver and, if not, why she had not reviewed those letters. Therefore, the relation-back doctrine did not apply, and the statute of limitations barred the action against Marta.

Plaintiff now moves to vacate the judgment under Code of Civil Procedure section 473(b). Plaintiff contends section 473 mandates relief here. (Motion, p. 5.) However, mandatory relief is only available for default judgments, not other types of judgments. (Ayala v. Southwest Leasing & Rental, Inc. (1992) 7 Cal.App.4th 40, 43-44.)

The discretionary part of section 473, subdivision (b), also does not afford relief. The section “does not offer relief from mandatory deadlines deemed jurisdictional in nature.” (Maynard v. Brandon (2005) 36 Cal.4th 364, 372.) “Nor does section 473, subdivision (b) generally apply to dismissals attributable to a party’s failure to comply with the applicable limitations period in which to institute an action, whether by complaint [citations] or by writ petition [citation].” (Ibid.) “Courts have held that some statutory time limits must be strictly enforced and that a court has no authority under section 473, subdivision (b), to grant relief from a party’s failure to comply with those time limits. The time limits that are not subject to relief under section 473, subdivision (b), include, among others, statutes of limitations [citations] . . . .” (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 344.)

Even assuming the Court has the authority under section 473, subdivision (b), to grant discretionary relief here, Plaintiff has not shown a mistake, inadvertence, surprise, or excusable neglect by Plaintiff or Plaintiff’s counsel in not timely naming Marta as a defendant. “The party seeking relief . . . bears the burden of proof in establishing a right to relief.” (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410.) A party moving for discretionary relief is “required to ‘establish his position by a preponderance of the evidence.’ [Citation.]” (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1423.)

Plaintiff argues her attorney relied on “misleading communications between Plaintiff’s counsel and State Farm,” these communications made her counsel believe Nikki, rather than Marta, was the driver, and counsel’s negligence caused him to name only Nikki as the defendant when he filed the complaint. (Motion, p. 5.) However, declaration do not contain any of this. The two declarations attached to the motion do not identify any mistake or excusable neglect. One declaration simply attaches copies of letters. The other discusses the effort to serve Niki Palley and how Plaintiff’s counsel decided in June 2018 that Marta was more likely the driver. Neither describes any mistake or neglect or explains why Plaintiff and her attorney did not review the readily-available information about the driver’s identity, such as the letters Plaintiff’s counsel wrote shortly after the accident naming Marta as the driver who caused the accident (Exh. 1; Exh. 4) or the information about Marta that Plaintiff admits she received on the day of the accident. Thus, Plaintiff’s motion fails for a lack of evidence establishing that either Plaintiff or her counsel made a mistake or acted with excusable neglect.

Even assuming evidence of mistake or neglect is not necessary and argument alone suffices, the argument does not satisfy the requirements of section 473, subdivision (b). “Relevant factors in assessing counsel error include: ‘(1) the nature of the mistake or neglect; and (2) whether counsel was otherwise diligent in investigating and pursuing the claim.’ [Citation.]” (Huh, supra, 158 Cal.App.4th at p. 1423.) Here, the nature of the mistake or neglect was Plaintiff’s and counsel’s failure to review the case file to identify the driver before filing the complaint. Such a review did not require much diligence, and there is no explanation why the review did not occur. Plaintiff’s argument that the letters from State Farm confused her counsel does not support a mistake or excusable neglect. None of the letters from State Farm stated that Nikki was the driver or that Marta was not the driver.

Accordingly, Plaintiff’s motion is DENIED.

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.