Opposition Objections

Cal. Super. - 6th Dist.March 3, 2021

DENNIS F. MORIARTY (BAR NO. 37612) ARLEN LITMAN-CLEPER (BAR NO. 289699) CESARI) WERNER AND MORIARTY 75 Southgate Avenue Daly City, CA 94015 Telephone: (650) 991-5126 Facsimile: (650) 991-5134 dmoriarty@cwmlaw.corn alitman/Rcwmlaw.corn 6660-3-19-8 Attorneys for Defendant, DUC LE IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA 10 12 13 14 MICHAEL DOLCINI Plaintiff, vs. DUC LE; LYFT INC.; and Does 1 - 30 No. 21CV379122 DEFENDANT DUC LE'S OPPOSITION TO PLAINTIFF MICHAEL DOLCINI'S MOTION TO SET ASIDE DISMISSAL Date: 3/I /2022 Time: 9:00 a.m. Dep: 20 15 16 17 18 19 20 21 23 24 25 26 27 28 Defendants Complaint Filed: 3/3/2021 Trial Date: None I. INTRODUCTION AND STATEMENT OF FACTS This action arises out of an incident occurring on March 4, 2019, wherein Plaintiff claims that he sustained personal injury during a ride-share trip operated by Defendant Duc Le. On March 3, 2021, plaintiff filed a complaint alleging negligence against Defendants Le and Lyft. The Court set an Initial Case Management Conference for July 20, 2021. On July 20, 2021, plaintiff failed to appear at an initial case management conference. Accordingly, the Court set an Order to Show Cause hearing for October 7, 2021. On October 7, 2021, plaintiff again failed to appear at the order to show cause hearing. Additionally, Plaintiff failed to serve summons and complaint on Defendant Le. -I- DEFENDANT DUC LE'S OPPOSITION TO PLAINTIFF MICHAEL DOLCINI'S MOTION TO SET ASIDE DISMISSAL Electronically Filed by Superior Court of CA, County of Santa Clara, on 2/14/2022 4:25 PM Reviewed By: A. Floresca Case #21CV379122 Envelope: 8286729 21CV379122 Santa Clara - Civil A. Floresca On November 9, 2021, this Court dismissed the case citing failure to litigate. II. LEGAL ARGUMENTS Code of Civil Procedure $ 473(b) provides that the court m~a relieve a party or his legal representative from a dismissal taken against him through his mistake, inadvertence, surprise or excusable neglect (emphasis added). "Although section 473 'may afford parties relief from the consequences of a wide variety of procedural errors [,]'t 'does not offer relief from mandatory deadlines deemed 10 jurisdictional in nature.'" Jackson v. Doe, 192 Cal. App. 4'" 742 at 755. 12 13 14 15 16 17 Here, plaintiff seeks relief through section 473 after failing to comply with numerous deadlines. Plaintiff's former counsel, Mr. Dang filed suit and then abandoned the case for nearly nine months. He did not pursue litigation of the suit in any meaningful way after filing a buzzer beater complaint one day prior to the statutory deadline. The Court should not reward this level of neglect by deeming it excusable. "The purpose of the statute was to alleviate the hardship on parties who lose their day 18 19 20 21 22 23 24 in court due solely to an excusable failure to act on the part of their attorneys. There is no evidence the amendment was intended to be a catch-all remedy for every case ofpoor judgment on the part of counsel which results in dismissal." Huens v. Tatum 52 Cak App. 4'" 259 at 264. Here, plaintiff filed his Complaint one-day prior to the statute of limitations expiring and did nothing more to pursue litigation of this case. Plaintiff failed to appear at the initial Case Management Conference and again failed to appear at the October 7, 2021, Order to 25 Show Cause hearing. Plaintiff's former counsel claims that he did not discover his failure to 26 27 28 appear until December 1, 2021, nearly nine-months after filing suit. The repeated instances of lack of diligence cannot reasonably be construed as mistake or excusable neglect. -2- DEFENDANT DUC LE'S OPPOSITION TO PLAINTIFF MICHAEL DOLCINI'S MOTION TO SET ASIDE DISMISSAL PLAINTIFF FAILED TO ATTACH PROPOSED PLEADINGS AS REOUIRED BY C.C.P. SECTION 47.3(b) Code of Civil Procedure f 473(b) states, "Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted ..." Here, plaintiff seeks relief under section 473(b); however, he failed to attach a proposed complaint or other pleading to his motion. 9 10 ll 12 Therefore, plaintiff s motion should be denied. III. CONCLUSION For the above stated reasons, the Court should deny plaintiff s motion to Set Aside Dismissal. 13 14 DATED: February j,I 2022 15 CES RIARTY 16 17 18 By: DELIS P. MORIARTY ARLEN PITMAN-CLEPER Attorneys for Defendant DUC LE 19 20 21 22 23 24 25 26 27 28 -3- DEFENDANT DUC LE'S OPPOSI11ON TO PLAINTIFF MICHAEL DOLCINI'S MOTION TO SET ASIDE DISMISSAL PROOF OF SERVICE 1 I am a resident of the State of California, over the age of 18 years, and not a party to the within achon. My business address is CESARI, WERNER AND MORIARTY, 75 Southgate Avenue, Daly City, California, 94015. On February 14, 2022, I served the within document: DEFENDANT DUC LE'S OPPOSITION TO PLAINTIFF MICHAEL DOLCINI'S MOTION TO SET ASIDE DISMISSAL 5 6 BY FACSIMILE: Based on a written agreement of the parties to accept service by fax, I transmitted true and correct copies of the above document(s) via a facsimile machine at telephone number (650) 991-5134 to the persons and the fax numbers listed above. The fax transmission was reported as complete and without error. The transinission report was properly issued by the transmitting facsimile machine, and a copy of the transmission report is attached or will be filed separately with the court. H 10 BY ELECTRONIC MAIL:Based on a court order or an agreement of the parties to accept electronic service, I caused the documents to be sent to the person(s) at thc electronic service address(es) listed below. Such document(s) were transmitted via electronic mail from the electronic address: r~arcia@cwmlaw.corn H in portable document format ("PDF") Adobe Acrobat or LJ in Word document format. 12 13 14 15 BY UNITED STATES MAIL:Following ordinary business practices, I sealed true and correct copies of the above documents in addressed envelope(s) and placed them at my workplace for collection and inailing with thc United States Postal Service. 1 am readily familiar with the practices of the Cesari Werner & Moriarty for collecting and processing mail. In the ordinary course of business, thc scaled envelope(s) that I placed for collection would be deposited, postage prepaid, with the United States Postal Service that same day. 16 17 18 BY PERSONAL SERVICE: I sealed true and correct copies of the above documents in addressed envelope(s) and caused such envelope(s) to be delivered by hand at the above locations by a professional messenger service. A declaration from the messenger who made the delivery is attached or will be filed separately with the court. 19 20 21 Johnathan Harriman HARRIMAN LAW 1300 Clay St. Oakland, CA 94612 Tel: (415) 625-3564 Fax: (510) 988-5088 ionathan harriman.law 22 23 I declare under penalty ofperjury that the above is true and correct. Executed on February 14, 2022, at Daly City, California. 24 25 R. GARCIA