This case was last updated from Los Angeles County Superior Courts on 06/12/2019 at 14:51:19 (UTC).

SHERIFF ABDALLA AHMED MOUSTAFA ET AL VS OSCAR ORTEGA

Case Summary

On 11/16/2017 SHERIFF ABDALLA AHMED MOUSTAFA filed a Personal Injury - Motor Vehicle lawsuit against OSCAR ORTEGA. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is JON R. TAKASUGI. The case status is Disposed - Dismissed.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3593

  • Filing Date:

    11/16/2017

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Personal Injury - Motor Vehicle

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

JON R. TAKASUGI

 

Party Details

Petitioners and Plaintiffs

BURHAM FAYSAL

MOUSTAFA SHERIF ABDALLA AHMED

Defendants and Respondents

ORTEGA OSCAR

DOES 1 TO 10

DIEBOLD INC.

Attorney/Law Firm Details

Petitioner and Plaintiff Attorneys

DAVITIAN ANNA ESQ.

DAVITIAN ANNA AIDA ESQ.

 

Court Documents

COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

11/16/2017: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

SUMMONS

11/16/2017: SUMMONS

Minute Order

5/16/2019: Minute Order

Order - Dismissal

5/16/2019: Order - Dismissal

Unknown

5/16/2019: Unknown

Minute Order

5/2/2019: Minute Order

Declaration

4/26/2019: Declaration

Amendment to Complaint (Fictitious/Incorrect Name)

4/9/2019: Amendment to Complaint (Fictitious/Incorrect Name)

 

Docket Entries

  • 05/16/2019
  • Docketat 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Jury Trial - Held

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  • 05/16/2019
  • DocketCertificate of Mailing for (Minute Order (Jury Trial) of 05/16/2019); Filed by Clerk

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  • 05/16/2019
  • DocketMinute Order ( (Jury Trial)); Filed by Clerk

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  • 05/16/2019
  • DocketOrder - Dismissal; Filed by Clerk

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  • 05/02/2019
  • Docketat 10:00 AM in Department 3, Jon R. Takasugi, Presiding; Final Status Conference - Not Held - Taken Off Calendar by Court

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  • 05/02/2019
  • DocketMinute Order ( (Final Status Conference)); Filed by Clerk

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  • 04/26/2019
  • DocketDeclaration (of Anna Davitian in Support of Request for Continuance of Trial Date); Filed by Sherif Abdalla Ahmed Moustafa (Plaintiff)

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  • 04/09/2019
  • DocketAmendment to Complaint (Fictitious/Incorrect Name); Filed by Sherif Abdalla Ahmed Moustafa (Plaintiff)

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  • 11/16/2017
  • DocketSUMMONS

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  • 11/16/2017
  • DocketComplaint; Filed by Faysal Burham (Plaintiff); Sherif Abdalla Ahmed Moustafa (Plaintiff)

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  • 11/16/2017
  • DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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Tentative Rulings

Case Number: ****3593 Hearing Date: March 14, 2022 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

SHERIF ABDALLA AHMED MOUSTAFA,

Plaintiff(s),

vs.

OSCAR ORTEGA, ET AL.,

Defendant(s).

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CASE NO: ****3593

[TENTATIVE] ORDER DENYING MOTION TO SET ASIDE DISMISSAL

Dept. 31

1:30 p.m.

March 14 2022

On November 16, 2017, Plaintiffs Sherif Abdalla Ahmed Moustafa and Faysal Burham (collectively, “Plaintiffs”) filed this action against Defendant, Oscar Ortega (“Ortega”), et al. for damages arising out of a motor vehicle accident. On April 9, 2019, Plaintiffs filed an Amendment to Complaint naming Diebold, Inc. at Doe 5. Previously, on March 16, 2021, Plaintiffs filed proof of service of the summons and complaint on Diebold Nixdorf, Inc. (“Diebold”) alleging personal service on Diebold on February 19, 2021.

On April 13, 2021, the court held an OSC re: Dismissal for Failure to File Proof of Service/Failure to Prosecute (the “OSC”). There was no appearance by or for Plaintiffs, and the court ordered the complaint as to Ortega dismissed without prejudice. (Min. Order, April 13, 2021.)

On October 15, 2021, Plaintiffs filed the instant motion to set aside the dismissal. Plaintiff’s moving papers request to “set aside the dismissal of this matter entered against Plaintiff OSCAR ORTEGA on April 29, 2021.” (Mot. at p. 1:26-28.)

However, Ortega is not a plaintiff in this matter, and the order dismissing Ortega from this matter was entered on April 13, 2021. The April 29, 2021, hearing concerned a demurrer filed by Diebold, which was sustained without leave to amend as to the entire complaint, and the matter was ordered dismissed with prejudice. (Min. Order, April 29, 2021.)

Consequently, it is unclear whether Plaintiffs are moving to set aside the dismissal entered on April 13, 2021, as to Ortega, or the April 29, 2021, dismissal entered following the order sustaining Diebold’s demurrer to the complaint. Further, confounding this issue is that on August 18, 2021, Plaintiffs filed a motion to set aside dismissal pertaining to the April 29, 2021, dismissal, which was denied for multiple reasons on October 13, 2021, including because Plaintiffs failed to serve Diebold with the motion, and because Plaintiff did not establish the dismissal entered on April 29, 2021, was the result of mistake, inadvertence or neglect. (Min. Order, Oct. 13, 2021.) The August 18, 2021, motion to set aside dismissal and Plaintiffs’ counsel’s, Zaven A. Pehlevanian, declaration is identical to the moving papers and declaration filed with the instant motion on October 15, 2021. The only discernible difference between the August 18, 2021, motion to set aside dismissal and the instant motion to set aside dismissal is that Plaintiffs inserted Ortega name on page 1 at line 27.

Plaintiffs provide that Plaintiffs’ counsel failed to appear for the Final Status Conference and Trial due to Plaintiff’s counsel’s mistake, inadvertence, surprise, or excusable neglect. Plaintiffs assert Plaintiffs’ attorney of record, Ana Davitian, had another matter on her calendar and assigned attorney Ani Gevshenian to appear at the April 29, 2021, hearing (which they mistakenly refer to as the “trial”) . However, Ani Gevshenian was unable to attend, so Zaven A. Pehlevanian was asked to attend. Further, Plaintiffs assert proof of personal service was filed on March 16, 2021, and that after contacting the filing clerk, Plaintiff’s counsel confirmed the hearing would be taken off-calendar.[1]

First, to the extent Plaintiffs are moving to set aside the dismissal entered as to Ortega on April 13, 2021, the motion is untimely. CCP 473(b) states in pertinent part,

Notwithstanding any other requirements of this section, the 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 … dismissal entered against his or her client…

“An [a]pplication for discretionary relief must be made within a reasonable time, not exceeding six months, after the judgment, dismissal, order, or proceeding was taken. ( 473, subd. (b).) An application for mandatory relief must be made within six months after entry of judgment. (Ibid.) … The six-month limit is mandatory; a court has no authority to grant relief under section 473, subdivision (b), unless an application is made within the six-month period.” (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340.)

In this case, the Order of Dismissal dismissing Ortega was signed and filed on April 13, 2021, following the OSC. Six months after this date was October 13, 2021. However, Plaintiffs did not file the instant motion until October 15, 2021. Accordingly, Plaintiffs’ motion is untimely, and the court has no authority to grant the requested relief as to the order dismissing Ortega under either the discretionary or mandatory provisions of CCP 473(b).

Second, to the extent Plaintiffs are moving to set aside the order dismissing Diebold following the order sustaining Diebold’s demurrer to the complaint without leave to amend, the instant motion to set aside dismissal is an improper motion for reconsideration. (CCP 1008.)

The moving party must present new facts, circumstances, or law to meet its burden on a motion for reconsideration. (See Code Civ. Proc., 1008, subd. (a); see also Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342.) The party seeking reconsideration of an order shall state by affidavit what application was made before, what order or decisions were made, and what new or different facts or circumstances are claimed to be shown. (Code Civ. Proc, 1008.) Further, “…the party seeking reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time.” (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457.) The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered and some valid reason for not offering it earlier. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) A disagreement with a ruling is not a new fact that will support the granting of a motion for reconsideration. (Id.)

Here, the court already denied a motion to set aside the April 29, 2021, order dismissing Plaintiffs’ complaint against Diebold on October 13, 2021. Plaintiffs do not present any new laws, facts, or circumstances. Again, the instant motion is substantially identical to the motion to set aside filed on August 18, 2021. Plaintiffs’ disagreement with the October 13, 2021, decision is not a new fact, circumstance, or law, that would justify reconsidering the court's previous holding.

Based on the foregoing, Plaintiffs’ motion to set aside dismissal is denied.

Plaintiffs are ordered to give notice.

PLEASE TAKE NOTICE:

Dated this 14th day of March 2022

Hon. Audra Mori

Judge of the Superior Court


[1] The March 16, 2021, proof of service filed by Plaintiffs pertains to Diebold, not Ortega.



b"

Case Number: ****3593 Hearing Date: October 13, 2021 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

SHERIF ABDALLA AHMED MOUSTAFA,

Plaintiff(s),

vs.

OSCAR ORTEGA, ET AL.,

Defendant(s).

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CASE NO: ****3593

[TENTATIVE] ORDER DENYING MOTION TO SET ASIDE

Dept. 31

1:30 p.m.

October 13, 2021

On November 16, 2017, Plaintiff, Sherif Abdalla Ahmed Moustafa (“Plaintiff”) filed this action against Defendant, Oscar Ortega (“Ortega”) for damages arising out of a motor vehicle accident. On April 9, 2019, Plaintiff filed an Amendment to Complaint naming Diebold, Inc. at Doe 5. Previously, on March 16, 2021, Plaintiff filed proof of service of the summons and complaint on Diebold Nixdorf, Inc. (“Diebold”) alleging personal service on Diebold on February 19, 2021.

On April 13, 2021, the court held an OSC re: Dismissal for Failure to File Proof of Service/Failure to Prosecute. There was no appearance by or for Plaintiff, and the court ordered the complaint as to Ortega dismissed without prejudice. (Min. Order, April 13, 2021.)

Moreover, on April 29, 2021, Diebold’s demurrer to the complaint was heard and sustained without leave to amend. (Min. Order, April 29, 2021.) Diebold asserted the complaint failed to state a claim against Diebold because of Plaintiff’s failure to serve Diebold with the summons and complaint within three years of filing the action. The case was then dismissed with prejudice.

Plaintiff now moves to set aside the April 29, 2021, dismissal. Plaintiff provides Plaintiff’s counsel to appear for the Final Status Conference and Trial due to Plaintiff’s counsel’s mistake, inadvertence, surprise, or excusable neglect. Plaintiff asserts Plaintiff’s attorney of record, Ana Davitian, had another matter on her calendar and assigned attorney Ani Gevshenian to appear at the April 29, 2021, hearing. However, Ani Gevshenian was unable to attend, so Zaven A. Pehlevanian was asked to attend. Further, Plaintiff asserts proof of personal service was filed on March 16, 2021, and that after contacting the filing clerk, Plaintiff’s counsel confirmed the hearing would be taken off-calendar.

The motion is denied for multiple reasons.

First, Plaintiff admittedly did not serve the motion on Diebold and thus could not file the related proof of service. Diebold demurred to the complaint, so Plaintiff was required to serve it with the instant motion. (CCP ; 1014 [“A defendant appears in an action when the defendant … demurs… After appearance, a defendant or the defendant's attorney is entitled to notice of all subsequent proceedings of which notice is required to be given…”].)

Second, to the extent Plaintiff’s counsel asserts it failed to appear at an FSC and trial set for April 29, 2021, the court’s records do not show that any FSC or trial was scheduled for April 29, 2021. Rather, Diebold’s demurrer to the complaint was heard on April 29, 2021, and as Plaintiff admits, Zevan Pehlevanian appeared for Plaintiff. Thus, it is unclear what hearing Plaintiff is asserting its counsel did not appear for as a result of mistake, inadvertence, or excusable neglect.

Finally, as noted above, the April 29, 2021, hearing concerned Diebold’s demurrer to the complaint, which was sustained without leave to amend. Plaintiff opposed the demurrer and appeared through counsel at the hearing. Although Plaintiff’s counsel does not specify what hearing Plaintiff’s counsel allegedly confirmed was off-calendar with a filing clerk, assuming Plaintiff’s counsel is referring to the April 29, 2021, hearing, Plaintiff’s counsel fails to offer any basis for the assertion that the filing of a proof of service would take the motion off-calendar. This is especially so given Plaintiff filed an opposition to the demurrer on April 16, 2021, Diebold filed its reply on April 22, 2021, and again, Plaintiff appeared through counsel at the April 29, 2021 hearing. Moreover, the court notes the demurrer was sustained without leave to amend after finding the demurrer concerned a purely legal issue that could not be cured by amendment. Plaintiff offers no basis to find the defect could be cured, nor does Plaintiff establish the dismissal entered on April 29, 2021, was the result of mistake, inadvertence or neglect.

Plaintiff is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

Dated this 13th day of October, 2021

Hon. Audra Mori

Judge of the Superior Court

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Case Number: ****3593    Hearing Date: April 29, 2021    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

SHERIF ABDALLA AHMED MOUSTAFA,

Plaintiff(s),

vs.

OSCAR ORTEGA, ET AL.,

Defendant(s).

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CASE NO: ****3593

[TENTATIVE] ORDER SUSTAINING DEMURRER WITHOUT LEAVE TO AMEND

Dept. 31

3:30 p.m.

April 29, 2021

 

  1. Background

    On 11/16/17, Plaintiff, Sherif Abdalla Ahmed Moustafa (“Plaintiff”) filed this action against Defendant, Oscar Ortega (“Defendant”) for damages arising out of a motor vehicle accident. On 4/9/19, Plaintiff filed an Amendment to Complaint naming Diebold, Inc. at Doe 5.

    At this time, Defendant, Diebold Nixdorf, Inc. (“Diebold”) demurs to the complaint fails to state a claim against Diebold because it is time barred because of Plaintiff’s failure to timely serve Diebold within three years of filing the complaint. Defendant argues that because Plaintiff served Diebold on 2/19/21, which was three years and three months after filing the complaint, the entire action is untimely as a matter of law.

    In opposition, Plaintiff contends the matter was stalled because of barriers associated with the discovery of and service on Diebold. Plaintiff asserts because it was unable to locate Diebold, Plaintiff did not serve Diebold within the three-year limit.

    In reply, Diebold argues it was not impossible, impracticable, or futile, and that Plaintiffs did not act diligently in serving Diebold.

    The court on its own motion takes judicial notice of the filings and records in this matter. (Evid. Code ; 452(d).)

  2. Demurrer

    A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (CCP ;; 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Donabedian, 116 Cal.App.4th at 994.)

    A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

    A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”].)

  1. Meet and Confer

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (CCP ; 430.41(a).)

The court finds Defendant has fulfilled this requirement prior to filing its demurrer. (Demurrer Gountoumas Decl. ¶¶ 5-6.)

  1. Analysis

CCP ; 583.210 provides:

(a) The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint is filed.

(b) Proof of service of the summons shall be filed within 60 days after the time the summons and complaint must be served upon a defendant.

Further, CCP ; 583.250 states:

(a) If service is not made in an action within the time prescribed in this article:

(1) The action shall not be further prosecuted and no further proceedings shall be held in the action.

(2) The action shall be dismissed by the court on its own motion or on motion of any person interested in the action, whether named as a party or not, after notice to the parties.

(b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.

CCP ; 583.240 states:

In computing the time within which service must be made pursuant to this article, there shall be excluded the time during which any of the following conditions existed:

(a) The defendant was not amenable to the process of the court.

(b) The prosecution of the action or proceedings in the action was stayed and the stay affected service.

(c) The validity of service was the subject of litigation by the parties.

(d) Service, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff's control. Failure to discover relevant facts or evidence is not a cause beyond the plaintiff's control for the purpose of this subdivision.

“Once the statutory period for either service of process or commencement of trial has run, the action cannot be further prosecuted and must be dismissed. (; 583.250; ; 583.360.) The periods for service run from the “commencement of the action.” This means the time the complaint is filed. (CCP ;583.210(a); Bishop v. Silva (1991) 234 Cal.App.3d 1317, 1327, 285.) An action is “commenced” when the original complaint is filed against the defendants named therein. Therefore, the 3-year period for service and filing proof of service runs from that date, rather than from the date of any later amended complaint (even if the amended complaint is the only one served). (CCP ;411.10; Perati v. Atkinson (1964) 230 Cal.App.2d 251, 253-254.)

The above rule applies even where the defendant seeking dismissal was served as one of the “Doe” defendants named in the original complaint, which was later amended to show his true name. Because “Doe” was named in the original complaint, the 3-year period for service and filing proof of service of summons runs from the date it was filed. (Lesko v. Superior Court (1982) 127 Cal.App.3d 476, 484-485. )

A plaintiff can escape this harsh consequence only by proving that grounds exist to toll the statutory period. [Citation.] Such proof is strictly limited: The requirements of both dismissal statutes ‘are not subject to extension, excuse, or exception except as expressly provided by statute.’ ” (Dale v. ITT Life Ins. Corp. (1989) 207 Cal.App.3d 495, 498.)

Accordingly, once the statutory periods have expired, the burden is on plaintiff to show some excuse for the delay in service. (Putnam v. Clague (1992) 3 Cal.App.4th 542, 549.) The Court strictly construes “ ‘[t]he excuse of impossibility, impracticability, or futility ... in light of the need to give a defendant adequate notice of the action so that the defendant can take necessary steps to preserve evidence.’ ” (Dale, supra, 207 Cal.App.3d at 502.)

Here, the court’s records show that Plaintiff failed to serve Diebold with the summons and complaint within three years of filing the complaint on 11/16/17, as the proof of service shows Defendant was not served until 2/19/21. The burden is on Plaintiff to show an excuse for the delay in service. (Dale, supra, 207 Cal.App.3d at 502.)

Plaintiff, in opposition, contends Plaintiff was unable to find a location or agent of service in connection with Diebold. In particular, Plaintiff argues the delay in service was caused by Diebold’s merger with another company, its change in name, and Diebold allegedly moving out of state, which forced Plaintiff to conduct a state by state search of Diebold. However, CCP ; 583.240(d) explicitly states, “Failure to discover relevant facts or evidence is not a cause beyond the plaintiff's control for the purpose of this subdivision.”

Plaintiff’s failure to discover relevant facts concerning Diebold is not a sufficient excuse for failing to serve Diebold within three years. Moreover, Plaintiff does not explain why any actions by Diebold prevented Plaintiff from timely serving Diebold.

In addition, as Diebold contends in its reply, plaintiff does not specify what efforts Plaintiff undertook to timely serve Diebold, or why it was impossible or impracticable to do so.

CCP ; 583.250 requires the dismissal of any action not served within this three year period unless Plaintiff here can establish the existence of some applicable statutory “extension, excuse, or exception” within the meaning of ; 583.250(b). Plaintiff fails to establish any exception applies in this case.

Since Plaintiff clearly failed to serve Diebold within three years of filing this action and since Plaintiff also failed to show the existence of some valid exception to the mandatory provisions of CCP ; 583.210(a) and ; 583.250, Plaintiff has no reasonable possibility of stating a valid cause of action against Diebold. (See Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 694-95 [“The statutory rule requiring the return of service of summons within three years of commencement of the action has been termed mandatory and jurisdictional…”].)

Based on the foregoing, Diebold’s demurrer is sustained. Because this is a purely legal issue, the demurrer is sustained without leave to amend.

Moving Defendant is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.orgIf the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

 

Dated this 29th day of April, 2021

Hon. Thomas D. Long

Judge of the Superior Court



Case Number: ****3593    Hearing Date: December 12, 2019    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

SHERIFF ABDALLA AHMED MOUSTAFA, ET AL.,

Plaintiff(s),

vs.

OSCAR ORTEGA, ET AL.,

Defendant(s).

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Case No.: ****3593

[TENTATIVE] ORDER GRANTING MOTION TO VACATE DISMISSAL

Dept. 3

1:30 p.m.

December 12, 2019

Plaintiffs, Sheriff Abdalla Ahmed Moustafa and Faysal Burham filed this action against Defendant, Oscar Ortega for damages arising out of an automobile accident.  Plaintiffs filed the complaint on 11/16/17.  Plaintiffs have not, to date, filed proof of service of the summons and complaint on Defendant.   Plaintiff failed to appear at the 5/02/19 FSC or the 5/16/19 trial.  On 5/16/19, the Court dismissed the case.

At this time, Plaintiffs move to set aside the dismissal.  Plaintiffs’ attorney declares the failure to appear at the trial was due to a double booking in her office.  Counsel does not explain why the case has lingered for two years without service of the summons and complaint or why she failed to appear at the FSC.  Regardless, because of the mandatory nature of the relief sought, the motion is granted.  CCP ;473(b). 

The Court sets an OSC re: dismissal for failure to file proof of service/failure to prosecute, and Final Status Conference on November 17, 2020, at 10 a.m., and trial on December 1, 2020, at 8:30 a.m. in Department 3 of the Spring Street Courthouse. 

Parties who intend to submit on this tentative must send an email to the court at sscdept3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  


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