This case was last updated from Los Angeles County Superior Courts on 06/13/2019 at 05:23:26 (UTC).

MAURICIO AVALOS VS ANDREA MERCIER

Case Summary

On 04/25/2017 MAURICIO AVALOS filed a Personal Injury - Motor Vehicle lawsuit against ANDREA MERCIER. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is GEORGINA T. RIZK. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9122

  • Filing Date:

    04/25/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Motor Vehicle

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

GEORGINA T. RIZK

 

Party Details

Plaintiff

AVALOS MAURICIO

Defendant

MERCIER ANDREA

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

ESCANDARI ALEXANDER H. ESQ.

PEDONE GABRIELLE ALEXANDRA ESQ.

Defendant Attorney

PORVIN TERRY ESQ.

 

Court Documents

COMPLAINT FOR DAMAGES BASED ON NEGLIGENCE

4/25/2017: COMPLAINT FOR DAMAGES BASED ON NEGLIGENCE

SUMMONS

4/25/2017: SUMMONS

NOTICE OF REJECTION APPLICATION AND ORDER FOR PUBLICATION

6/5/2018: NOTICE OF REJECTION APPLICATION AND ORDER FOR PUBLICATION

APPLICATION FOR PUBLICATION

5/4/2018: APPLICATION FOR PUBLICATION

Notice of Ruling

4/17/2019: Notice of Ruling

Minute Order

4/12/2019: Minute Order

Ex Parte Application

4/12/2019: Ex Parte Application

Proof of Service by Mail

4/11/2019: Proof of Service by Mail

Unknown

4/11/2019: Unknown

Notice of Change of Firm Name

12/28/2018: Notice of Change of Firm Name

Stipulation to Continue Trial/FSC [and Related Motion/Discovery Dates] Personal Injury Courts Only (Department 91, 92, 93, 97)

9/21/2018: Stipulation to Continue Trial/FSC [and Related Motion/Discovery Dates] Personal Injury Courts Only (Department 91, 92, 93, 97)

Unknown

9/7/2018: Unknown

ANSWER TO UNVERIFIED COMPLAINT

8/17/2018: ANSWER TO UNVERIFIED COMPLAINT

DEMAND FOR JURY TRIAL

8/17/2018: DEMAND FOR JURY TRIAL

2 More Documents Available

 

Docket Entries

  • 04/25/2019
  • Docketat 08:30 AM in Department 2, Georgina T. Rizk, Presiding; Jury Trial - Not Held - Continued - Stipulation

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  • 04/17/2019
  • DocketNotice of Ruling; Filed by Andrea Mercier (Defendant)

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  • 04/15/2019
  • Docketat 10:00 AM in Department 2, Georgina T. Rizk, Presiding; Final Status Conference - Not Held - Continued - Stipulation

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  • 04/12/2019
  • Docketat 08:30 AM in Department 2, Georgina T. Rizk, Presiding; Hearing on Ex Parte Application (for an Order to Continue Trial) - Held - Motion Granted

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  • 04/12/2019
  • DocketMinute Order ( (Hearing on Plaintiff's Ex Parte Application for an Order to C...)); Filed by Clerk

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  • 04/12/2019
  • DocketEx Parte Application (for an Order to Continue Trial); Filed by Mauricio Avalos (Plaintiff)

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  • 04/11/2019
  • DocketProof of Service by Mail; Filed by Mauricio Avalos (Plaintiff)

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  • 04/11/2019
  • DocketDeclaration in Support of Ex Parte Application (of Gabriella A. Pedone); Filed by Mauricio Avalos (Plaintiff)

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  • 12/28/2018
  • DocketNotice of Change of Firm Name; Filed by Andrea Mercier (Defendant)

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  • 09/21/2018
  • Docket[Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District); Filed by Andrea Mercier (Defendant)

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1 More Docket Entries
  • 08/17/2018
  • DocketDEMAND FOR JURY TRIAL

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  • 08/17/2018
  • DocketANSWER TO UNVERIFIED COMPLAINT

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  • 08/17/2018
  • DocketDemand for Jury Trial; Filed by Andrea Mercier (Defendant)

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  • 08/17/2018
  • DocketAnswer; Filed by Andrea Mercier (Defendant)

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  • 06/05/2018
  • DocketNOTICE OF REJECTION APPLICATION AND ORDER FOR PUBLICATION

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  • 05/04/2018
  • DocketAPPLICATION FOR PUBLICATION

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  • 05/04/2018
  • DocketApplication for Order to Publish; Filed by Plaintiff/Petitioner

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  • 04/25/2017
  • DocketSUMMONS

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  • 04/25/2017
  • DocketComplaint; Filed by Mauricio Avalos (Plaintiff)

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  • 04/25/2017
  • DocketCOMPLAINT FOR DAMAGES BASED ON NEGLIGENCE

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Tentative Rulings

Case Number: ****9122    Hearing Date: December 16, 2020    Dept: 29

Avalos v. Mercier ****9122

Motion to Determine Whether Jonny Ogata is Attorney of Record or Request to be Relieved as Counsel is GRANTED in part and DENIED in part. The court grants the motion to be relieved as counsel. (Code Civ. Proc. ; 284, subd. (2); Cal. R. Ct., Rule 3.1362).

Mr. Ogata is Mr. Avalos’ counsel of record in this matter. He appeared on behalf of Mr. Avalos, filed and signed papers on which he was listed as counsel, and submitted declarations. At no time did Mr. Ogata state that he was specially appearing for any other lawyer. Thus, when the L.A. Trial Lawyers firm disbanded, Mr. Ogata was required to bring a motion to be relieved as counsel with the court. To the extent that the present motion seeks a determination that Mr. Ogata was no longer counsel for Mr. Avalos in this action when the L.A. Trial Lawyers firm was closed, the court DENIES the motion.

In the alternative, Mr. Ogata moves to be relieved as counsel now. The court notes California Rule of Court, Rule 3.1362 requires a motion to be relieved as counsel to be submitted on mandatory Judicial Council form MC-051 and be accompanied by a declaration on mandatory Judicial Council form MC-052. The court has reviewed the motion and concludes that the procedural defects do not affect the substantial rights of the plaintiff. The court provided Mr. Avalos with the admonitions and advisements contained in the form at the last hearing and confirmed Mr. Avalos’ address at the hearing. The court thus disregards the procedural errors and determines the issue on the merits. (Code Civ. Proc. ; 475.)

The court finds good cause to relieve Mr. Ogata as counsel. Mr. Ogata is ordered to prepare and lodge a proposed Order Granting Attorney’s Motion to Be Relieved as Counsel – Civil (form MC-053) forthwith. The mandatory Judicial Council form order must be used. (Cal. Rule Ct., Rule 3.1362, subd. (e).) After it is signed by the court, Mr. Ogata must serve the order on Mr. Avalos and all parties in the case and proof of service must be filed with the court. The order will be effective upon signing by the court.

Motion Confirming Settlement (Pursuant to Code Civ. Proc. 664.6) and Entry of Dismissal Due to Plaintiff’s Former Counsel’s Suspension from Practice of Law is DENIED WITHOUT PREJUDICE.

On 9/24/2020, the parties entered into a settlement agreement whereby Defendant agreed to pay Plaintiff $8,000 in return for, among other things, a dismissal of the case. The court notes that defense counsel negotiated directly with Plaintiff in reaching this settlement, but the court concludes, based on statements made at the hearing on 11/9/2020, counsel’s communications directly with Mr. Avalos were with the knowledge and consent of Mr. Ogata. In any event, even if the communication were improper, such communication would not, by itself, invalidate the settlement agreement. (Myerchin v. Family Benefits, Inc. (2008) 162 Cal. App. 4th 1526 [disapproved on other grounds by Village Northridge Homeowners Ass’n v. State Farm Fire & Cas. Co. (2010) Cal. 4th 913, 929].)

Defendant now moves pursuant to Code of Civil Procedure section 664.6 for an order “confirming” the settlement and dismissing the case. Defendant also seeks the court’s guidance regarding how the settlement check should be made payable, given that Plaintiff’s lead counsel has been suspended from the practice of law and has failed to communicate with counsel.

Section 664.6 provides: “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.”

Defendant is not seeking to have judgment entered against her pursuant to the terms of the settlement, and thus the first sentence of section 664.6 does not apply. Further, it does not appear that any order is required to enforce the settlement; both parties are ready and willing to comply with the terms. Once the court signs the order relieving Mr. Ogata as counsel, Mr. Avalos will be in pro per and can sign a dismissal.

Further, to the extent the parties seek an order that will have the effect of determining the validity of any potential lien that plaintiff’s former counsel (who is now suspended and who essentially abandoned plaintiff and this action, seemingly in breach of any retention agreement), the court has no jurisdiction to make such an order. (Bandy v. Mt. Diablo Unified School District (1976) 56 Cal. App. 230 [any order purporting to determine the lien of plaintiff’s attorney or prior attorney in the main personal injury action is in excess of the court’s jurisdiction and is void]; Brown v. Superior Court (2004) 116 Cal. App. 4th 320.) Nor may the court provide advice on the subject. Assuming that counsel has attempted to give notice of the settlement to the former suspended attorney and has given a deadline for the assertion of any claim to the settlement funds, counsel will have to evaluate for himself the risk (if any) of paying the settlement amount directly to plaintiff without a separate interpleader action.

The court sets an OSC re dismissal (settlement) for 1/29/2021 at 8:30 a.m.

Moving party is ordered to give notice.



Case Number: ****9122    Hearing Date: November 05, 2019    Dept: 2

Avalos v. Mercier

The court heard these motions on 10/28/19. Plaintiff maintained in opposition that he served verified responses to discovery but did not provide documentary evidence. The court continued the hearing to allow Plaintiff to file a supplemental declaration establishing that the verified responses were served.

Plaintiff's counsel filed a supplemental declaration on 10/29/19 confirming that verified responses were served by mail and facsimile on 10/10/19. Therefore, an order compelling Plaintiff’s responses is no longer necessary.

The Court finds that under the facts and circumstances the imposition of sanctions would be unjust and the Court therefore declines to award sanctions.

Moving party is ordered to give notice.



Case Number: ****9122    Hearing Date: October 28, 2019    Dept: 2

Avalos v. Mercier

Defendant’s Two Motions for Order compelling Plaintiff to Answer Supplemental interrogatories, Set Two; and Supplemental Demand for Production of Documents and Things, Set Two; or in the Alternative to Exclude Evidence; Request for Sanctions filed on 10/2/19, are GRANTED.

While Plaintiff maintains that verified responses were served by facsimile on 10/10/19, there is no documentary evidence provided.

Plaintiff, Maurice Avalos, is ordered to serve verified responses to the foregoing discovery without objections within 10 days. Cal Code Civ Procedure ;2030.290(b).

Imposition of sanctions totaling $523.30 against Plaintiff, Maurice Avalos, and counsel, Johnny P. Ogata, is warranted for the failure to timely respond to authorized methods of discovery, which is discovery abuse. Cal Code Civil Procedure ; 2023.010(d).

Moving party is ordered to give notice.



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