Motion DismissCal. Super. - 6th Dist.December 12, 2019\DOONONUl-bUJNr-A NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQQUI-hUJNHOKDOONQUl-bWNHO 1QCV360088 Santa Clara - Civil R. N Ergllc’télyrf Uri???“ SBN 145932 Electronically Filed T 1 3i EngCA 9:28? by Superior Court of CA, £81135 $3681 ( ) County of Santa Clara, - - V . . . on 3/1 5/2021 3:14 PM t1m@t1mumbrelt.com Reviewed By: R. Nguyen . Case #1 9CV360088 Attorney for Defendant: Bmg Sokolsky Envelope: 6036095 SUPERIOR COURT FOR THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA LOCKSMITH EMERGENCY SOLUTIONS, ) Case No.2 19CV360088 ) INC, Ct 31 ) Assigned for all purposes to: Plaintiffs ) Hon. Judge Maureen A. Folan ’ ) Dept: 6 vs. ) ) DEFENDANT, BING SOKOLSKY’S NOTICE DIAGNOSTIC AUTO LAB» LLC» 6t 31 ) 0F MOTION AND MOTION T0 DISMISS Defendants ) THIS ACTION PURSUANT TO CCP § 399; ) MEMORANDUM OF POINTS AND ) AUTHORITIES; DECLARATION OF ) TIMOTHY F. UMBREIT ) ) Motion to Transfer Case Granted: January 6, 2021 ) ) Hearing Date: 6-01 -2021 ) Time: 9:00am ) Deptféx 2 ) ) T0 ALL PARTIES AND THEIR ATTORNEYS 0F RECORD: 2 PLEASE TAKE NOTICE THAT on June o1, 2021 at 9:00 am. in Departmenm 0f the above-entitled Court, located at 191 North First St., San Jose, California 951 13, Defendant, Bing Sokolsky Will and hereby does move to dismiss this action. PLEASE TAKE FURTHER NOTICE THAT this court has jurisdiction to hear this motion to dismiss pursuant t0 Code of Civil Procedure (CCP) §399(a). Motion t0 Dismiss 1 guyen \DOONONUl-bUJNr-A NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQQUI-hUJNHOKDOONQUl-bWNHO This motion is made pursuant to CCP §399(a) on the grounds that the Plaintiffs did not pay the costs and fees 0f transferring this action within 5 days after service of notice of the order granting the Motion t0 Transfer on the ground that plaintiff filed in the “wrong court; and, n0 other interested party paid the costs and fees Within 30 days after service of notice 0f the transfer order. Accordingly, this action is subject to dismissal. This motion is based upon this notice; the motion; the memorandum 0f points and authorities filed herewith; the declaration 0f Timothy F. Umbreit; the records and files in this action; and upon such fithher evidence 0f which the court may take judicial notice and evidence and argument that may be presented to the Court by the time of hearing. Dated: March 15, 2021 Timothy F. Umbreit Attorney for Defendant: Bing Sokolsky Motion t0 Dismiss 2 \DOONONUl-bUJNr-A NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQQUI-hUJNHOKDOONQUl-bWNHO MOTION TO DISMISS Defendant, Bing Sokolsky (hereinafter Sokolsky) moves t0 dismiss this action pursuant t0 CCP §399(a). If transfer is ordered on the ground that plaintiff filed in the “wrong court,” plaintiff is responsible for paying the costs and fees of transferring the action t0 whichever county the court orders, Within 30 days after service 0f notice of the transfer order. If plaintiff fails to d0 so Within 5 days after service of notice of the order, any other interested party, whether named in the complaint 0r not, may pay such costs and fees in order t0 expedite the transfer. If the fees and costs are not paid Within 30 days, the action is subject t0 dismissal. CCP § 399(a) The Plaintiffs did not pay the costs and fees of transferring this action within 5 days after service 0f notice of the order granting the Motion t0 Transfer 0n the ground that plaintiff filed the action in the “wrong court; and, n0 other interested party paid the costs and fees Within 30 days after service of notice 0f the transfer order. Accordingly, this action is subject to dismissal. WHEREFORE, Defendant, Bing Sokolsky respectfully requests that the Court dismiss this action; that n0 other action on the cause may be commenced in another court before satisfaction 0f the costs and fees; and, for such and further relief as the nature of his cause may require. Dated: March 15, 2021 Timothy F. Umbreit Attorney for Defendant: Bing Sokolsky Motion t0 Dismiss 3 \DOONONUl-bUJNr-A NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQQUI-hUJNHOKDOONQUl-bWNHO MEMORANDUM OF POINTS AND AUTHORITIES Defendant, Bing Sokolsky respectfully submits this memorandum in support of this motion to dismiss. STATEMENT RELEVANT OF FACTS 1. 9. On September 30, 2020, Sokolsky filed his Motion to Transfer Case to Proper Court (CCP § 397) and For Sanctions 0n the grounds that the action was commenced in a court other than that designated as proper. (Decl. of Umbreit 1] 1). Plaintiffs did not oppose the transfer of the action to Los Angeles County but opposed the request for sanctions. (Decl. ofUmbreit 1] 2). . On January 7, 2021 the Court granted the motion t0 Transfer Venue to Los Angeles County and denied sanctions. (Decl. of Umbreit 1] 3). The Court prepared its own Order transferring the action to Los Angeles County (the Transfer Order) which was filed on January 7, 2021. (Decl. of Umbreit 1] 4). On January 7, 2021, the Clerk 0f Court served the Transfer Order on all parties by mail. (Decl. of Umbreit fl 5). On January 17, 2021, Sokolsky filed a Notice of Entry 0f Order and served the notice with a copy of the Transfer Order attached on all parties by mail. (Decl. of Umbreit fl 6). The Notice of Entry of Order(the Transfer Order) was docketed on January 18, 2021. (Decl. 0f Umbreit fl 7). N0 petition for writ of mandate pursuant t0 § 400 was filed in the trial court. (Decl. of Umbreit 1] 8). N0 appeal was taken pursuant to § 904.2. (Decl. ofUmbreit fl 9). 10. The costs and fees were not paid Within 30 days after service of notice of the transfer order. (Decl. 0f Umbreit 1] 10). Motion t0 Dismiss 4 \DOONONUl-bUJNr-A NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQQUI-hUJNHOKDOONQUl-bWNHO POINTS AND AUTHORITIES POINT If transfer is ordered on the ground that plaintiff filed in the “wrong court,” plaintiff is responsible for paying the costs and fees of transferring the action to whichever county the court orders, within 30 days after service of notice of the transfer order. If plaintiff fails t0 do so Within 5 days after service of notice 0f the order, any other interested party, whether named in the complaint or not, may pay such costs and fees in order t0 expedite the transfer. If the fees and costs are not paid Within 30 days, the action is subject to dismissal. AUTHORITIES CCP § 399 states, in pertinent part, “If the transfer is sought solely, 0r is ordered, because the action 0r proceeding was commenced in a court other than that designated as proper by this title, those costs and fees, including any expenses and attorney's fees awarded t0 the defendant pursuant t0 Section 396b, shall be paid by the plaintiff before the transfer is made. If those costs and fees have not been paid by the plaintiff Within five days after service of notice of the transfer order, any other party interested in the action 0r proceeding, ... may pay those costs and fees. .. If those costs and fees are not paid Within 30 days after service of notice of the transfer order, if a copy 0f a petition for writ 0f mandate pursuant to Section 400 is filed in the trial court, 0r if an appeal is taken pursuant to Section 904.2, then, within 30 days after notice 0f finality 0f the order of transfer, the court 0n a duly noticed motion by any party may dismiss the action Without prejudice t0 the cause 0n the condition that no other action 0n the cause may be commenced in another court before satisfaction of the court's order for costs and fees.” Motion t0 Dismiss 5 \DOONONUl-bUJNr-A NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQQUI-hUJNHOKDOONQUl-bWNHO “Under the plain language of section 399, subdivision (a), if a change 0f venue is ordered and n0 further challenge is made to the order, any party may move for dismissal without prejudice if costs and fees are not paid Within 30 days. This scenario is What took place in the instant case-the trial court signed the order to transfer the action t0 San Francisco 0n February 27, Stasz did not seek a writ 0f mandate to challenge the order, and she failed t0 pay all court-ordered costs and fees within 30 days. Contrary t0 Stasz's argument, there is n0 requirement of service of a notice of finality of the order of transfer when there has been n0 challenge to the order in the Court of Appeal.” Stasz v. Eisenberg, 190 Cal. App. 4th 1032, 1037, 120 Cal. Rptr. 3d 21, 25 (2010). ARGUMENT On September 30, 2020, Sokolsky filed his Motion to Transfer Case to Proper Court (CCP § 397) and For Sanctions 0n the grounds that the action was commenced in a court other than that designated as proper. Plaintiffs did not oppose the transfer 0f the action t0 Los Angeles County but opposed the request for sanctions. On January 7, 2021 the Court granted the motion t0 Transfer Venue to Los Angeles County and denied sanctions. The Court prepared its own Order transferring the action to Los Angeles County (the Transfer Order) which was filed on January 7, 2021. On January 7, 2021, the Clerk 0f Court served the Transfer Order on all parties by mail. On January 17, 2021, Sokolsky filed a Notice of Entry 0f Order and served the notice With a copy 0f the Transfer Order attached on all parties by mail. The Notice 0f Entry of Order (the Transfer Order) was docketed 0n January 18, 2021. No petition for writ of mandate pursuant t0 § 400 was filed in the trial court. N0 appeal was taken pursuant to § 904.2. The costs and fees were not paid Within 30 days after service of notice of the transfer order. Accordingly, this action is subject t0 dismissal. Motion t0 Dismiss 6 \DOONONUl-bUJNr-A NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQQUI-hUJNHOKDOONQUl-bWNHO WHEREFORE, Defendant, Bing Sokolsky respectfully requests that the Court dismiss this action; that no other action 0n the cause may be commenced in another court before satisfaction of the costs and fees; and, for such and fithher relief as the nature of his cause may require. Dated: March 15, 2021 Timothy F. Umbreit Attorney for Defendant: Bing Sokolsky Motion t0 Dismiss 7 \DOONONUl-bUJNr-A NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQQUI-hUJNHOKDOONQUl-bWNHO DECLARATION OF TIMOTHY F. UMBREIT IN SUPPORT OF DEFENDANT, BING SOKOLSKY’S MOTION TO DISMISS ACTION PURSUANT TO CCP § 399 I, Timothy F. Umbreit declare I am the attorney for the defendant, Bing Sokolsky (Sokolsky) in the above captioned case; I am over the age of 18 and I am competent t0 testify to the matters set forth herein and I do so testify on my own personal knowledge. /// /// 1. 8. 9. On September 30, 2020, Sokolsky filed his Motion to Transfer Case t0 Proper Court (CCP § 397) and For Sanctions 0n the grounds that the action was commenced in a court other than that designated as proper. . Plaintiffs did not oppose the transfer of the action to Los Angeles County but opposed the request for sanctions. . On January 7, 2021 the Court granted the motion to Transfer Venue t0 Los Angeles County and denied sanctions. The Court prepared its own Order transferring the action t0 Los Angeles County (the Transfer Order) Which was filed 0n January 7, 2021. On January 7, 2021, the Clerk 0f Court served the Transfer Order on all parties by mail. On January 17, 2021, Sokolsky filed a Notice of Entry 0f Order and served the notice With a copy 0f the Transfer Order attached 0n all parties by mail. The Notice 0f Entry of Order (the Transfer Order) was docketed on January 18, 2021. N0 petition for writ of mandate pursuant t0 § 400 was filed in the trial court. No appeal was taken pursuant t0 § 904.2. 10. The costs and fees were not paid within 30 days after service of notice of the transfer order. Motion t0 Dismiss 8 \DOONONUl-bUJNr-A NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQQUI-hUJNHOKDOONQUl-bWNHO I declare under the penalty 0f perjury under the laws of the State of California that the foregoing is true and correct and I executed this declaration on the date below in Los Angeles, CA. Dated: March 15, 2021 Timothy F. Umbreit Motion t0 Dismiss 9 \DOOQONUl-bUJNr-A NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUI-hUJNi-‘OKDOONONUl-bWNi-‘O PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County 0f Los Angeles, State 0f California. I am over the age 0f 18 and not a party t0 the within action. My business address is 4701 Cartwright Ave., Toluca Lake, CA 91602. On the date below, I served the following document described as DEFENDANT, BING SOKOLSKY’S NOTICE OF MOTION AND MOTION TO DISMISS THIS ACTION PURSUANT TO CCP § 399; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF TIMOTHY F. UMBREIT on all interested parties in this action as indicated 0n the ATTACHED SERVICE LIST: [X ] BY MAIL, CCP §1013a. 0r FRCiVP 5(b)(1),(2)(C) where indicated [X ] I deposited such envelope in the mail at Los Angeles, California. The envelope was mailed with postage thereon fully prepaid. [ ] BY EMAIL The parties, through their attorneys have either: stipulated and agreed in writing t0 the service 0f all pleadings, discovery and other documents required to be served by email pursuant to CCP § 1010.6, CRC 2.25 1; 0r have manifested affirmative consent through electronic means With the court 0r the court’s electronic filing service provider CRC 2.25 1(b).The email address is indicated 0n the attached service list Where indicated [X] STATE: I declare under penalty 0f perjury under the laws of the State 0f California that the above is true and correct. Executed on March 15, 2021 at Los Angeles, California.W Timothy F. Umbreit SERVICE LIST Abid Aziz and by email Pavel Kouprine and by email abid@ azizyellin.com Law Offices of Pavel Kouprine Sruli Yellin pavel@kouprinelaw.com sruli@azizyellin.com 13561 Moorpaark St., Ste 700 Aziz Yellin LLP Sherman Oaks, CA 91423 996 Minnesota Ave., Ste 204 Attorney for Defendant: Diagnostic Auto Lab, Inc. San Jose, CA 95125 Attorney for Plaintiffs Nicholas W. Spigner and by email Spiegel & Utrera PC 8939 S. Sepulveda B1Vd., suite 400 Los Angeles, CA 90045 attorneyspigner@amerilawyer.com Attorneys for Defendant: Andrew Demetry Proof 0f Service Page 1 0f 1
