This case was last updated from Los Angeles County Superior Courts on 06/07/2019 at 12:09:56 (UTC).

TRACY MCGLORY VS ALEXANDER STEVEN HOYT ET AL

Case Summary

On 06/28/2017 TRACY MCGLORY filed a Personal Injury - Motor Vehicle lawsuit against ALEXANDER STEVEN HOYT. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are LAURA A. SEIGLE and AMY D. HOGUE. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6746

  • Filing Date:

    06/28/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Motor Vehicle

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

LAURA A. SEIGLE

AMY D. HOGUE

 

Party Details

Plaintiff and Petitioner

MCGLORY TRACY

Respondents and Defendants

HOYT STEVE

DOES 1 TO 20

HOYT ALEXANDER STEVEN

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

GLADKOV SERGEI N. ESQ

 

Court Documents

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

6/28/2017: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

SUMMONS

6/28/2017: SUMMONS

Minute Order

6/4/2019: Minute Order

Notice of Ruling

6/4/2019: Notice of Ruling

Notice

6/3/2019: Notice

Motion re:

5/14/2019: Motion re:

Motion re:

4/26/2019: Motion re:

Minute Order

2/26/2019: Minute Order

Request for Entry of Default / Judgment

1/15/2019: Request for Entry of Default / Judgment

Minute Order

12/28/2018: Minute Order

Request for Entry of Default / Judgment

12/26/2018: Request for Entry of Default / Judgment

Proof of Personal Service

12/26/2018: Proof of Personal Service

Proof of Personal Service

12/26/2018: Proof of Personal Service

Minute Order

12/12/2018: Minute Order

2 More Documents Available

 

Docket Entries

  • 06/04/2019
  • Docketat 1:30 PM in Department 4B, Laura A. Seigle, Presiding; Hearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5) - Held - Continued

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  • 06/04/2019
  • DocketMinute Order ( (Hearing on Motion to Set Aside/Vacate Default and Default Jud...)); Filed by Clerk

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  • 06/04/2019
  • DocketNotice of Ruling; Filed by Alexander Steven Hoyt (Defendant); Steve Hoyt (Defendant)

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  • 06/03/2019
  • DocketNotice (NOTICE OF NON OPPOSITION); Filed by Alexander Steven Hoyt (Defendant); Steve Hoyt (Defendant)

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  • 05/14/2019
  • DocketMotion re: (NOTICE OF MOTION AND MOTION); Filed by Alexander Steven Hoyt (Defendant); Steve Hoyt (Defendant)

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  • 04/26/2019
  • DocketMotion re: (NOTICE OF MOTION AND DEFENDANT STEVE HOYT'S MOTION TO VACATE); Filed by Alexander Steven Hoyt (Defendant); Steve Hoyt (Defendant)

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  • 02/26/2019
  • Docketat 08:30 AM in Department 4B, Laura A. Seigle, Presiding; Order to Show Cause Re: (Why This Action Shuld Not Be Dismissed for Failure of Plaintiff to Enter Default Judgment as to Defendants Alexander Steven Hoyt and Steve Hoyt Pursuant to California Rules of Court Section 3.110(h)) - Held - Continued

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  • 02/26/2019
  • DocketMinute Order ( (Order to Show Cause Re: Why This Action Shuld Not Be Dismisse...)); Filed by Clerk

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  • 01/15/2019
  • DocketRequest for Entry of Default / Judgment; Filed by Tracy McGlory (Plaintiff)

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  • 12/28/2018
  • Docketat 08:30 AM in Department 7, Amy D. Hogue, Presiding; Jury Trial - Not Held - Advanced and Vacated

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  • 12/28/2018
  • DocketMinute Order ((Jury Trial)); Filed by Clerk

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  • 12/26/2018
  • DocketProof of Personal Service; Filed by Tracy McGlory (Plaintiff)

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  • 12/26/2018
  • DocketProof of Personal Service; Filed by Tracy McGlory (Plaintiff)

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  • 12/26/2018
  • DocketRequest for Entry of Default / Judgment; Filed by Tracy McGlory (Plaintiff)

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  • 12/12/2018
  • Docketat 10:00 AM in Department 7, Amy D. Hogue, Presiding; Final Status Conference - Not Held - Taken Off Calendar by Court

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  • 12/12/2018
  • DocketMinute Order ((Final Status Conference)); Filed by Clerk

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  • 06/28/2017
  • DocketComplaint; Filed by Tracy McGlory (Plaintiff)

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  • 06/28/2017
  • DocketSUMMONS

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  • 06/28/2017
  • DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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Tentative Rulings

b"

Case Number: ****6746 Hearing Date: October 1, 2021 Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

TRACY MCGLORY,

Plaintiff,

vs.

ALEXANDER STEVEN HOYT, et al.,

Defendants.

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CASE NO.: ****6746

[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO SET ASIDE/VACATE DISMISSAL

Dept. 27

8:30 a.m.

October 1, 2021

On June 28, 2017, Plaintiff Tracy McGlory filed this action against Defendants Alexander Steven Hoyt and Steve Hoyt arising from a June 28, 2015, motor vehicle accident.

On October 26, 2020, the Court ordered the Complaint dismissed without prejudice after Plaintiff failed to appear for an OSC re: Dismissal and for lack of prosecution. On April 26, 2021, Plaintiff filed this motion to vacate the dismissal under section 473 of the Code of Civil Procedure. Plaintiff’s counsel declares that he decided to allow the dismissal of Alexander Hoyt and mistakenly believed that the OSC only pertained to Alexander Hoyt, not the whole action. (Gladkov Decl., ¶¶ 2-3.) Additionally, Plaintiff’s counsel states that a contributing factor to the non-appearance was a calendaring problem and being short-staffed. (Gladkov Decl., ¶¶ 6-7.)

Section 473 provides for both discretionary and mandatory relief under certain circumstances. “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.)

The motion to set aside the dismissal based on counsel’s failure to appear at the OSC, having been filed exactly six-months from the date of the October 26, 2020, arguably falls within the mandatory language of ; 473. Although counsel’s explanation of his neglect is only marginally persuasive, since it explains, essentially, that based on a misunderstanding of the purpose of the OSC he deliberately decided not to appear at a scheduled hearing of which he was aware, it is clear that he was mistaken and his motion falls within the purview of the mandatory provisions of ; 473(b) at least with respect to the consequences of failing to appear at the OSC. Were this the only issue, the Court would grant Plaintiff the relief sought.

The analysis does not end there, however. A court may dismiss an action for delay in prosecution if service is not made within two years after the action is commenced or if the case is not brought to trial within three years after the action is commenced. (Code Civ. Proc., ; 583.420, subd. (a).) A plaintiff may not obtain relief under the mandatory provisions of section 473(b) where the action is dismissed for failure to prosecute. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 620.) In Graham v. Beers (1994) 30 Cal.App.4th 1656, 1658, the court of appeal explained:

An attorney negligently fails to diligently prosecute an action. Code of Civil Procedure section 473 provides that upon a proper motion the court shall vacate a default judgment or dismissal entered because of an attorney's mistake, inadvertence, surprise, or neglect. Does that mean that a trial court may not dismiss an action for failure of the attorney to diligently prosecute the action under section 583.410? No. We conclude that the mandatory language of section 473 does not apply to the discretionary dismissal statutes.

After the trial court dismissed this action for failure to prosecute, it properly refused to vacate the judgment of dismissal in response to a motion brought pursuant to section 473.

Here, the Court dismissed the action on October 26, 2020, for Plaintiff’s failure to appear at the OSC as well as for her delay in prosecution. Accordingly, Plaintiff’s reliance on the mandatory provision of section 473(b) is misplaced with respect to the delay in prosecution.

Plaintiff fares no better on this issue under the ; 473 provisions for discretionary relief. The Court has the discretion to vacate a dismissal under section 473(b) if the attorney shows the neglect at issue was “excusable” and makes the motion within “a reasonable time,” not exceeding six months. A showing of diligence is required when seeking discretionary relief. According to Pacific Grove v. Hamilton (1950) 100 Cal. App. 2d 508, 511, an unexplained delay of five and one-half months to file the motion to vacate was deemed fatal to the application.

More egregiously here than in Pacific Grove, Plaintiff’s counsel waited exactly six months to file this motion. His declaration provides no explanation for the delay that the Court might consider in deciding whether to exercise its discretion to set aside the dismissal. Moreover, the Court notes that neither Plaintiff’s motion nor counsel’s declaration endeavor to explain or excuse the delay in prosecution that was one of the bases for the dismissal. There are two unexplained and consequential delays at issue here: one the delay in prosecution, and the other, the delay in seeking 473(b) relief.

Accordingly, Plaintiff’s motion for discretionary relief under ; 473(b) to set aside the dismissal for delay in prosecution is DENIED without prejudice.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.

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Case Number: ****6746    Hearing Date: September 24, 2020    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA 

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

TRACY MCGLORY,

Plaintiff,

vs.

ALEXANDER STEVEN HOYT, et al.,

Defendants.

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****6746

[TENTATIVE] ORDER RE: DEFENDANT ‘S MOTION TO COMPEL PLAINTIFFS RESPONSES TO DISCOVERY AND MONETARY SANCTIONS

Dept. 27

1:30 p.m.

September 24, 2020

On June 28, 2017, plaintiff Tracy McGlory (“Plaintiff”) filed this action against defendant Steve Hoyt (sued as “Alexander Steven Hoyt”) (“Defendant”) arising from a June 28, 2015 motor vehicle accidentOn January 31, 2020, Defendant served Demand for Inspection and Production of Documents, Set No. One, Form Interrogatories, Set No. One, and Special Interrogatories, Set No. One.  On March 31, 2020, defense counsel wrote to Plaintiff’s counsel to meet and confer.  Plaintiff has not responded to the meet and confer or provided responses.  

Where a party fails to serve timely responses to discovery requests, the court may make an order compelling responses.  (Code Civ. Proc., ;; 2030.290, 2031.300; Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.)   A party that fails to serve timely responses waives any objections to the request, including ones based on privilege or the protection of attorney work product.  (Code Civ. Proc., ;; 2030.290, subd. (a), 2031.300, subd. (a).)  Unlike a motion to compel further responses, a motion to compel responses is not subject to a 45-day time limit and the propounding party has no meet and confer obligations.  (Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at p. 404.)

Plaintiff did not oppose this Motion and it is undisputed that Plaintiff did not serve responses.  Defendant’s Motions are GRANTED.  Plaintiff is ordered to provide verified responses, without objections, to Defendant’s Demand for Inspection and Production of Documents, Set No. One, Form Interrogatories, Set No. One, and Special Interrogatories, Set No. One within 20 days of this Order.  

Where the court grants a motion to compel responses, sanctions shall be imposed against the party who unsuccessfully makes or opposes a motion to compel, unless the party acted with substantial justification or the sanction would otherwise be unjust.  (Code Civ. Proc., ; 2030.290, subd. (c), 2031.300, subd. (c).)  

Defendant’s request for monetary sanctions is GRANTED and imposed against Plaintiff in the reduced amount of $930 for one hours at defense counsel’s hourly rate of $250 and $180 in filing fees, to be paid within twenty (20) days of the date of this Order.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  

Dated this 24th day of September 2020

Hon. Edward B. Moreton, Jr. 

Judge of the Superior Court



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