On 09/29/2017 STEPHEN A GERSHMAN filed a Contract - Other Contract lawsuit against TODD PHIPPS. This case was filed in Los Angeles County Superior Courts, Michael Antonovich Antelope Valley Courthouse located in Los Angeles, California. The Judges overseeing this case are RANDOLPH ROGERS and RANDOLPH A. ROGERS. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Michael Antonovich Antelope Valley Courthouse
Los Angeles, California
RANDOLPH A. ROGERS
GERSHMAN STEPHEN A.
PHIPPS TODD #57804-112
GOLDSMITH WILLIAM I.
9/29/2017: NOTICE OF CASE MANAGEMENT CONFERENCE
9/29/2017: NOTICE OF CASE ASSIGNMENT
9/29/2017: CIVIL CASE COVER SHEET
1/31/2018: Minute Order
3/5/2018: Minute Order
5/31/2018: PROOF OF SERVICE SUMMONS
6/7/2018: MOTION REQUESTING EXTENSION OF TIME TO ANSWER SUMMONS
8/9/2018: OPPOSITION TO DEFENDANTS MOTION TO DISMISS
9/7/2018: NON-NEGOTIABLE NOTICE OF ACCEPTANCE
11/5/2018: Request for Entry of Default / Judgment
1/9/2019: Minute Order
2/25/2019: Minute Order
4/30/2019: Statement of Decision
4/30/2019: Minute Order
at 08:30 AM in Department A15, Randolph A. Rogers, Presiding; Hearing on Motion - Other (to Show Cause Why a Reconsideration Should not be Granted and a Rescinding of Default Should not be Granted) - Held - Motion DeniedRead MoreRead Less
at 08:30 AM in Department A15, Randolph A. Rogers, Presiding; Order to Show Cause Re: Dismissal (Pending Entry of Default Judgment) - Not Held - Taken Off Calendar by CourtRead MoreRead Less
Minute Order ( (Hearing on Motion - Other to Show Cause Why a Reconsideration...)); Filed by ClerkRead MoreRead Less
Statement of Decision; Filed by ClerkRead MoreRead Less
Court's Order After Hearing; Filed by ClerkRead MoreRead Less
Certificate of Mailing for (Minute Order (Hearing on Motion - Other to Show Cause Why a Reconsideration...) of 04/30/2019); Filed by ClerkRead MoreRead Less
at 08:30 AM in Department A15, Randolph A. Rogers, Presiding; Hearing on Motion - Other (to Show Cause Why a Reconsideration Should not be Granted and a Rescinding of Default Should not be Granted) - Not Held - Continued - Court's MotionRead MoreRead Less
at 08:30 AM in Department A15, Randolph A. Rogers, Presiding; Order to Show Cause Re: Dismissal (Pending Entry of Default Judgment) - Not Held - Continued - Court's MotionRead MoreRead Less
Minute Order ( (Order to Show Cause Re: Dismissal Pending Entry of Default Ju...)); Filed by ClerkRead MoreRead Less
Certificate of Mailing for (Minute Order (Order to Show Cause Re: Dismissal Pending Entry of Default Ju...) of 02/25/2019); Filed by ClerkRead MoreRead Less
Minute OrderRead MoreRead Less
Minute order entered: 2018-01-31 00:00:00; Filed by ClerkRead MoreRead Less
Notice of Case Assignment; Filed by ClerkRead MoreRead Less
CIVIL CASE COVER SHEETRead MoreRead Less
NOTICE OF CASE ASSIGNMENTRead MoreRead Less
COMPLAINT-CONTRACTRead MoreRead Less
SUMMONSRead MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
Summons; Filed by ClerkRead MoreRead Less
Complaint filed-Summons Issued; Filed by nullRead MoreRead Less
Case Number: MC027431 Hearing Date: December 03, 2019 Dept: A15
Gershman v. Phipps
I. Tentative Ruling
Defendant Todd Phipps’s motion to review and dismiss is DENIED. The Clerk to give notice.
The present case arises from a Retainer Agreement for Professional Services (“Agreement”) between Plaintiff Stephen A. Gershman (“Plaintiff”), an attorney, and former client Defendant Todd Phipps (“Defendant”) entered on February 10, 2011, in connection with an action for dissolution of marriage, LASC Case No. BD524898. Defendant is a self-represented litigant currently serving a federal prison sentence in Lompoc, California.
On September 29, 2017, Plaintiff filed his Complaint, alleging that Defendant failed to make timely payments to him and asserting a Breach of Contract cause of action.
This Court’s notes reflect that on June 7, 2018, this Court received an ostensible Motion Requesting Extension of Time to Answer Summons from Defendant, which purported to have been served on Plaintiff by Certified Mail, although the address to which the pleading was mailed is not stated, which requested that Defendant, who is presently incarcerated in State Prison, have an additional 90 days to answer or otherwise respond to the Complaint. On July 2, 2018, this Court received Plaintiff's Request for Entry of Default which incorrectly represented that the “Demand of complaint is 0.00”; and was therefore rejected by the Court. The Court granted Defendant through August 24, 2018, to file his Answer or other response to the Complaint.
On June 28, 2018, before filing any responsive pleading, Defendant filed a motion to dismiss. At the hearing on the Motion to Dismiss held August 16, 2018, the Court concluded that Defendant’s Motion to Dismiss should be re-characterized as a Demurrer which was sustained with leave to amend through September 17, 2018, to allow Plaintiff to allege when the services were rendered under the attached Retainer Agreement.
Plaintiff filed his First Amended Complaint on September 12, 2018.
On November 05, 2018, Plaintiff filed a request for entry of default, which was rejected due to his failure to include the filing date of the complaint. On December 06, 2018, Plaintiff filed a second request for entry of default, which was granted by the Clerk of Court.
On December 31, 2018, Defendant filed a motion to rescind the entry of default judgment against him. The motion came on for hearing on April 30, 2019. Neither party appeared. At that time Defendant’s motion was denied for failing to meet code requirements, including failing to attach his proposed answer.
On June 17, 2019, the Court rejected Plaintiff’s proposed Default Judgment because the supporting declaration reflected that this action was to recover for attorney services provided in connection with a dissolution action, LASC Case No. BD524898. The Court noted that Plaintiff’s attached billing statement reflected that the last payment made by Defendant was made on June 15, 2011. The Court set a hearing for July 29, 2019 on an OSC re dismissal with prejudice upon grounds that action is barred by the applicable statute of limitations. Thereafter a declaration by Plaintiff was filed on August 02, 2019, and the Court then discharged the OSC re dismissal with prejudice at hearing on September 09, 2019.
Defendant filed the instant motion on October 15, 2019. Plaintiff filed opposition to the motion on November 18, 2019.
As an initial matter, the Court recognizes that Defendant failed to give proper notice of his motion to Plaintiff under the requirements of Code of Civil Procedure section 1005. This would give the Court grounds to dismiss the motion without prejudice. However, the Court exercises its discretion and considers the motion on the merits.
First, Defendant’s motion contains what appears to be a request for the Court to reconsider and vacate its decision from April 30, 2019, where it denied Defendant’s motion to vacate the entry of default against him, on the ground that he is incapable of reasonably defending himself from prison.
The case record indicates that that at the hearing on April 30, 2019, the Court denied Defendant’s motion to rescind the entry of default. As discussed in the statement of decision of that date, the Court found that Defendant had failed to demonstrate mistake, inadvertence, surprise, or neglect in failing to filing a responsive pleading, as is required pursuant to Code of Civil Procedure section 473, subdivision (b).
In his motion filed on June 17, 2019, Defendant requested that the Court reconsider its previous decision on his motion to rescind the entry of default. In the order after hearing entered on July 29, 2019, the Court already considered, and denied, Defendant’s identical motion to reconsider the April 30, 2019 denial of his motion to rescind entry of default.
“A party who originally made an application for an order which was refused... may make a subsequent application for the same order upon new or different facts, circumstances, or law...” (Code Civ. Proc., § 1008, subd. (b).) By its terms, the statute expressly applies to any order whether “interim” or “final.” (Code Civ. Proc., § 1008, subd. (e); Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1199.)
The Court had found previously that Defendant’s motion should be denied because there was no indication of a change in law, facts, or circumstances which would justify considering a motion to reconsider the previous motion to rescind entry of default pursuant to Code of Civil Procedure section 1008. (See Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 837 [holding that defendants are required to submit an affidavit showing new facts, circumstances, or law justifying renewed application for relief from default on sworn affidavit as to fault].)
In this motion, Defendant has provided no authority or facts explaining why he is entitled to have the Court review the exact same motion a second time. Moreover, he has not provided any authority showing that being incarcerated is grounds for granting a motion to reconsider. The Court must note that when a point is asserted without argument and authority for the proposition, “it is deemed to be without foundation and requires no discussion by the reviewing court.” (Central Valley Gas Storage LLC v. Southam (2017) 11 Cal.App.5th 686, 694-695.)
Defendant’s request to reconsider is DENIED.
Because Defendant’s request to reconsider is denied, Defendant is in default status and cannot make a substantive appearance. Thus, the balance of is motion (to dismiss on the basis of the Statute of Limitations, and to quash based upon a service of process issue) is DENIED.
Clerk to give notice.