This case was last updated from Los Angeles County Superior Courts on 06/09/2019 at 02:21:13 (UTC).

STEPHEN A. GERSHMAN VS TODD PHIPPS

Case Summary

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.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7431

  • Filing Date:

    09/29/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Michael Antonovich Antelope Valley Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

RANDOLPH ROGERS

RANDOLPH A. ROGERS

 

Party Details

Plaintiff

GERSHMAN STEPHEN A.

Defendants

PHIPPS TODD

PHIPPS TODD #57804-112

Attorney/Law Firm Details

Plaintiff Attorney

GOLDSMITH WILLIAM I.

 

Court Documents

NOTICE OF CASE MANAGEMENT CONFERENCE

9/29/2017: NOTICE OF CASE MANAGEMENT CONFERENCE

NOTICE OF CASE ASSIGNMENT

9/29/2017: NOTICE OF CASE ASSIGNMENT

CIVIL CASE COVER SHEET

9/29/2017: CIVIL CASE COVER SHEET

Minute Order

1/31/2018: Minute Order

DECLARATION

3/5/2018: DECLARATION

Minute Order

3/5/2018: Minute Order

PROOF OF SERVICE SUMMONS

5/31/2018: PROOF OF SERVICE SUMMONS

MOTION REQUESTING EXTENSION OF TIME TO ANSWER SUMMONS

6/7/2018: MOTION REQUESTING EXTENSION OF TIME TO ANSWER SUMMONS

Unknown

6/8/2018: Unknown

OPPOSITION TO DEFENDANTS MOTION TO DISMISS

8/9/2018: OPPOSITION TO DEFENDANTS MOTION TO DISMISS

NON-NEGOTIABLE NOTICE OF ACCEPTANCE

9/7/2018: NON-NEGOTIABLE NOTICE OF ACCEPTANCE

Request for Entry of Default / Judgment

11/5/2018: Request for Entry of Default / Judgment

Minute Order

1/9/2019: Minute Order

Minute Order

2/25/2019: Minute Order

Unknown

2/25/2019: Unknown

Reply

2/25/2019: Reply

Statement of Decision

4/30/2019: Statement of Decision

Minute Order

4/30/2019: Minute Order

29 More Documents Available

 

Docket Entries

  • 04/30/2019
  • 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 Denied

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  • 04/30/2019
  • 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 Court

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  • 04/30/2019
  • Minute Order ( (Hearing on Motion - Other to Show Cause Why a Reconsideration...)); Filed by Clerk

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  • 04/30/2019
  • Statement of Decision; Filed by Clerk

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  • 04/30/2019
  • Court's Order After Hearing; Filed by Clerk

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  • 04/30/2019
  • Certificate of Mailing for (Minute Order (Hearing on Motion - Other to Show Cause Why a Reconsideration...) of 04/30/2019); Filed by Clerk

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  • 02/25/2019
  • 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 Motion

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  • 02/25/2019
  • 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 Motion

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  • 02/25/2019
  • Minute Order ( (Order to Show Cause Re: Dismissal Pending Entry of Default Ju...)); Filed by Clerk

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  • 02/25/2019
  • Certificate of Mailing for (Minute Order (Order to Show Cause Re: Dismissal Pending Entry of Default Ju...) of 02/25/2019); Filed by Clerk

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62 More Docket Entries
  • 01/31/2018
  • Minute Order

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  • 01/31/2018
  • Minute order entered: 2018-01-31 00:00:00; Filed by Clerk

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  • 09/29/2017
  • Notice of Case Assignment; Filed by Clerk

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  • 09/29/2017
  • CIVIL CASE COVER SHEET

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  • 09/29/2017
  • NOTICE OF CASE ASSIGNMENT

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  • 09/29/2017
  • COMPLAINT-CONTRACT

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  • 09/29/2017
  • SUMMONS

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  • 09/29/2017
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 09/29/2017
  • Summons; Filed by Clerk

    Read MoreRead Less
  • 09/29/2017
  • Complaint filed-Summons Issued; Filed by null

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Tentative Rulings

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.

II. Background

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.

III. Analysis 

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.