Disposed - Judgment Entered
Personal Injury - Motor Vehicle
LAURA A. SEIGLE
EDWARD B. MORETON
DOES 1 THROUGH 25
PALLEY MARTA (DOE 1)
PALLEY MARTA DOE 1
MARTA PALLEY DOE 1
OLAN LAW CORPORATION
OLAN DAVID RAPHAEL
MARYANSKI DONNA M.
9/22/2020: Appeal - Remittitur - Appeal Dismissed - APPEAL - REMITTITUR - APPEAL DISMISSED B305955
11/12/2019: Objection - OBJECTION TO PLAINTIFF'S MOTION TO VACATE JUDGMENT
11/21/2019: Request for Dismissal
11/22/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (ORDER TO SHOW CAUSE RE: DISMISSAL FOR FAILURE TO FILE PROOF O...) OF 11/22/2019
11/22/2019: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL FOR FAILURE TO FILE PROOF O...)
1/3/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (ORDER TO SHOW CAUSE RE: DISMISSAL FOR FAILURE TO FILE PROOF O...) OF 01/03/2020
1/3/2020: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL FOR FAILURE TO FILE PROOF O...)
2/24/2020: Notice - NOTICE NOTICE OF ENTRY OF JUDGMENT
2/24/2020: Judgment - JUDGMENT [PROPOSED] JUDGMENT
5/11/2020: Appeal - Notice of Appeal/Cross Appeal Filed
5/15/2020: Appeal - Notice of Filing of Notice of Appeal
7/8/2020: Appeal - Notice of Default Issued
8/10/2020: Appeal - Notice of Non-Compliance - APPEAL - NOTICE OF NON-COMPLIANCE NOA: 05/11/20 B305955
8/23/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY ADJUDICATION)
8/26/2019: Notice of Ruling
9/6/2019: Motion to Vacate - MOTION TO VACATE NOTICE OF MOTION ANS MOTION TO VACATE JUDGMENT
9/9/2019: Proof of Service (not Summons and Complaint)
9/9/2019: Opposition - OPPOSITION OPPOSITION TO EX PARTE APPLICATION TO SHORTEN TIME
Docketat 08:30 AM in Department 4B; (OSC RE Dismissal) - Not Held - Vacated by CourtRead MoreRead Less
DocketAppeal - Remittitur - Appeal Dismissed (B305955); Filed by ClerkRead MoreRead Less
DocketAppeal - Notice of Non-Compliance (NOA: 05/11/20 B305955); Filed by ClerkRead MoreRead Less
DocketAppeal - Notice of Default Issued; Filed by ClerkRead MoreRead Less
DocketAppeal - Notice of Filing of Notice of Appeal; Filed by ClerkRead MoreRead Less
DocketAppeal - Notice of Appeal/Cross Appeal Filed; Filed by Kristine Kelly (Appellant)Read MoreRead Less
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 CourtRead MoreRead Less
DocketJudgment ([PROPOSED] JUDGMENT); Filed by Marta Palley (Doe 1) (Defendant)Read MoreRead Less
DocketNotice (NOTICE OF ENTRY OF JUDGMENT); Filed by Marta Palley (Doe 1) (Defendant)Read MoreRead Less
Docketat 08:30 AM in Department 4B; Order to Show Cause Re: Dismissal (for Failure to File Proof of Service of Nikki Palley) - HeldRead MoreRead Less
DocketMinute Order ( (Final Status Conference)); Filed by ClerkRead MoreRead Less
DocketAnswer; Filed by Marta Palley (Doe 1) (Defendant)Read MoreRead Less
DocketProof of Personal Service; Filed by Kristine Kelly (Plaintiff)Read MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketProof-Service/Summons; Filed by Kristine Kelly (Plaintiff)Read MoreRead Less
DocketAmendment to Complaint; Filed by Kristine Kelly (Plaintiff)Read MoreRead Less
DocketAMENDMENT TO COMPLAINTRead MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketComplaint; Filed by Kristine Kelly (Plaintiff)Read MoreRead Less
DocketCOMPLAINT FOR DAMAGES: 1. NEGLIGENCERead MoreRead Less
Case Number: ****6826 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.
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