On 09/22/2017 MARTHA LATHAM filed a Personal Injury - Motor Vehicle lawsuit against EDDY RIVERA. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is LAURA A. SEIGLE. The case status is Disposed - Dismissed.
Disposed - Dismissed
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
LAURA A. SEIGLE
DOES 1 TO 30
LAW OFFICES OF DENNIS KUCERA
3/8/2019: Minute Order
3/22/2019: Order - Dismissal
3/22/2019: Minute Order
9/22/2017: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)
at 08:30 AM in Department 4B, Laura A. Seigle, Presiding; Jury Trial - HeldRead MoreRead Less
Certificate of Mailing for (Minute Order (Jury Trial) of 03/22/2019); Filed by ClerkRead MoreRead Less
Minute Order ( (Jury Trial)); Filed by ClerkRead MoreRead Less
Order - Dismissal; Filed by ClerkRead MoreRead Less
at 10:00 AM in Department 4B, Laura A. Seigle, Presiding; Final Status Conference - Not Held - Taken Off Calendar by CourtRead MoreRead Less
Minute Order ( (Final Status Conference)); Filed by ClerkRead MoreRead Less
COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)Read MoreRead Less
Complaint; Filed by Martha Latham (Plaintiff)Read MoreRead Less
SUMMONSRead MoreRead Less
Case Number: BC676960 Hearing Date: January 14, 2020 Dept: 4B
[TENTATIVE] ORDER RE: MOTION TO SET ASSIDE DISMISSAL
On September 22, 2017, plaintiff Martha Latham filed this action against defendant Eddy Rivera for motor vehicle negligence occurring on September 24, 2015. Plaintiff has yet not served Defendant with the complaint and summons.
A jury trial was scheduled for March 22, 2019, but neither Plaintiff nor Plaintiff’s counsel appeared. The same day, the Court entered an order dismissing the entire action without prejudice due to Plaintiff’s failure to appear for trial. On October 7, 2019, Plaintiff filed an ex parte application to set aside dismissal based on attorney fault, but failed to appear, so the Court took the ex parte application off calendar. On November 8, 2019, Plaintiff again filed an ex parte application to set aside the dismissal. The Court denied the application. On December 4, 2019, Plaintiff brought this motion to set aside the dismissal.
Plaintiff bases her motion on Code of Civil Procedure section 473, subdivision (b) and attaches a declaration from her attorney stating he put documents in wrong files, did not enter the case on his calendar, and did not serve the complaint. He states that he did not realize the case had a trial date and believed that he had three years to serve the complaint.
“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.)
Plaintiff filed this motion to set aside the dismissal more than six months after the dismissal. Plaintiff’s counsel tries to excuse the tardiness by contending he submitted an ex parte application to set aside the dismissal on September 19, 2019. Plaintiff’s counsel claims that the court website directed him to leave the date of the ex parte hearing blank and that he would be notified of the hearing date. He states he did not appear on October 7, 2019 because he was waiting for the Court to give him an ex parte hearing date.
There is no evidence in the Court’s docket that Plaintiff filed any ex parte application before October. By September 19, 2019, all ex parte applications were required to be filed electronically. (See First Amended General Order dated May 3, 2019) The ex parte application dated October 7, 2019 has a printed line from the electronic filing system stating that it was “Electronically Received 10/04/2019 07:53 AM,” which was the Friday before Monday, October 7, 2019. There is no ex parte application in the Court’s file that was filed on September 19, 2019. Further, Plaintiff’s counsel does not cite any rule that the party leaves the date of the ex parte hearing blank and that the Court then informs the party of the date of the hearing.
In any event, neither the October nor the November the ex parte application stated good cause or an emergency for proceeding via ex parte application rather than on regular notice, and both were filed outside the six month time limit of section 473, subdivision (b). Likewise, by the time Plaintiff finally filed this motion on December 4, 2019, more than six months had passed since the March 22, 2019 dismissal. Accordingly, the 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.