****8640
10/06/2017
Pending - Other Pending
Personal Injury - Motor Vehicle
Los Angeles, California
JON R. TAKASUGI
PERI ZHEN ZHEN
PERI ZHEN
WONG ANDREW RYAN
DOES 1 TO 10
LAW OFFICE OF STEVEN G CANDELAS
10/6/2017: COMPLAINT FOR DAMAGES: 1. NEGLIGENCE ;ETC
10/6/2017: SUMMONS
3/22/2019: Minute Order
Docketat 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Jury Trial - Not Held - Advanced and Vacated
[-] Read LessDocketat 10:00 AM in Department 3, Jon R. Takasugi, Presiding; Final Status Conference - Not Held - Taken Off Calendar by Court
[-] Read LessDocketMinute Order ( (Final Status Conference)); Filed by Clerk
[-] Read LessDocketCOMPLAINT FOR DAMAGES: 1. NEGLIGENCE ;ETC
[-] Read LessDocketSUMMONS
[-] Read LessDocketComplaint; Filed by ZHEN PERI (Plaintiff)
[-] Read LessCase Number: ****8640 Hearing Date: July 29, 2022 Dept: 31
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
ZHEN ZHEN PERI, Plaintiff(s), vs.
ANDREW RYAN WONG, ET AL.,
Defendant(s). | ) ) ) ) ) ) ) ) ) ) ) ) | CASE NO: ****8640
[TENTATIVE] ORDER CONTINUING MOTION TO SET ASIDE DISMISSAL
Dept. 31 1:30 p.m. July 29, 2022 |
On October 6, 2017, Plaintiff Zhen Zhen Peri (“Plaintiff”) filed this action against Defendant Andrew Ryan Wong (“Defendant”) for damages arising from a motor vehicle accident.
A Trial Setting Conference (“TSC”) and Order to Show Cause re: Dismissal (“OSC”) were called for hearing on August 19, 2021. After there were no appearances by or for either party, the action was dismissed pursuant to CCP 581(b)(3).
On February 17, 2022, Plaintiff filed the instant motion to set aside dismissal. Plaintiff asserts the dismissal was the result of Plaintiff’s counsel’s mistake, inadvertence, or excusable neglect. The motion is unopposed.
The proof of service attached to the motion states that the motion was served on “m,.” This appears to be an error. Plaintiff filed proof of service on April 21, 2022, showing Defendant was personally served with the summons and complaint prior to dismissal. However, there is no evidence that Defendant was given proper notice of this motion. (McDonald v. Severy (1936) 6 Cal.2d 629 [no authority to set aside dismissal where no notice given to dismissed party]; see Maxwell v. Cooltech, Inc. (1997) 57 Cal.App.4th 629, 631-32.) Setting aside the dismissal means bringing Defendant back into the action, and thus, directly affects Defendant’s rights.[1] Defendant must be given notice of this motion prior to the hearing. Thus, the motion will be continued to ensure Defendant receives notice of the motion.
The motion is continued to August 29, 2022 at 1:30 pm. Plaintiff must file proof of service of the motion prior to the hearing. The court notes this matter is nearing five years old, and thus, no further continuances of the motion will be permitted.
Plaintiff is ordered to give notice.
PLEASE TAKE NOTICE:
Dated this 29th day of July 2022
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| Hon. Audra Mori Judge of the Superior Court
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[1] It is the general rule that “ ‘... notice of motion must be given whenever the order sought may affect the rights of an adverse party. [Citations.] (McDonald v. Severy (1936) 6 Cal.2d 629, 631.)’ Restated, ‘...in an adversary proceeding where an order may affect the rights of an adverse party's right to be heard on the issue as a matter of due process of law.’ [Citations.]” (St. Paul Fire & Marine Ins. Co. v. Superior Court (1984) 156 Cal.App.3d 82, 85; see also Miller v. Foremost Motors, Inc. (1993) 16 Cal.App.4th 1275-76 [“Fundamental due process demands that [the defendant] have notice of a motion to vacate a dismissal…”].)
Case Number: ****8640 Hearing Date: November 01, 2019 Dept: 3
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
| ZHEN ZHEN PERI, Plaintiff(s), vs. ANDREW RYAN WONG, et al., Defendant(s). | ) ) ) ) ) ) ) ) ) ) | Case No.: ****8640 [TENTATIVE] ORDER GRANTING MOTION TO VACATE DISMISSAL Dept. 3 1:30 p.m. November 1, 2019 |
Plaintiff, Zhen Zhen Peri filed this action against Defendant, Andrew Ryan Wong for damages arising out of an automobile accident. Plaintiff filed the complaint on 10/06/17. Plaintiff appeared at the 3/22/19 FSC and indicated an intention to serve Defendant. The Court set an OSC re: proof of service for 8/29/19. On 8/29/19, not having received any proof of service and with no appearance by Plaintiff at the OSC, the Court dismissed the case.
At this time, Plaintiff moves to set aside the dismissal. Plaintiff’s attorney declares the failure to appear at the OSC was due to a calendaring error in his office. The motion is granted. CCP ;473(b). Counsel indicates Defendant has been located and will be served if the motion is granted.
The Court sets an OSC re: proof of service and trial setting conference for Friday, 12/06/19 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.