Response Reply

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

II Harriman Law LDmVCDO‘l-booNA NMNNMNNMNAAAAAAAAAA OOVOUCJ‘l-th-‘hOOmNGO‘l-bOONAO 21 CV379122 Santa Clara - Civil Electronically Filed Jonathan C. Harriman (SBN 250943) by superior Court of CA, HARR'MAN LAW _ County of Santa Clara, 1300 Clay Street, SUIte 600 on 2,1 5/2022 2.00 PM Oakland, California 94612 ' Tel: (415) 625_3564 Reviewed By: F. Miller Fax; (51o) 988-5088 Case #21CV379122 ionathan@harriman.law Envelope: 8294958 Attorneys for Plaintiff Michael Dolcini SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR SANTA CLARA COUNTY MICHAEL DOLCINI Case N0.: 21CV379122 Plaintiff, REPLY TO OPPOSITION TO v. MOTION TO SET ASIDE DISMISSAL Duo LE; LYFT, INC.; AND DOES 1 - 3o, [CCP § 473(b)] D f t _ Date: March 1, 2022e endan S Time: 9:00 a.m. Dept: 20 Complaint Filed: March 3, 2021 Trial Date: Not Set Plaintiff has brought a timely motion which is supported by an affidavit of attorney fault so relief under CCP § 473(b) is mandatory. Defendant nonetheless opposes the motion and argues that the dismissal should not be set aside because prior counsel missed numerous deadlines and hearings which resulted in significant delays and the ultimate dismissal of the action. The defense does not identify any valid basis for denial of the motion. On the contrary, their argument seems to support plaintiff’s motion because it demonstrates the “mistake” and “neglect” which allow for relief under § 473(b). Further, the defense fails to argue or offer any evidence that these delays resulted in prejudice. 1 REPLY TO OPPOSITION TO MOTION TO SET ASIDE DISMISSAL II Harriman Law LDmVCDO‘l-booNA NMNNMNNMNAAAAAAAAAA OOVOUCJ‘l-th-‘hOOmNOUO‘l-bOONAO The only inquiry which the Court must make when considering this motion is whether the dismissal “was not in fact caused by the attorney’s mistake, inadvertence, surprise or neglect.” CCP § 473(b). Here, prior counsel admitted his mistake under oath and plaintiff has clearly shown that the dismissal occurred as a result of mistakes by prior counsel. The defense does not contest this - they do not question prior counsel’s credibility or argue that the dismissal occurred for some other reason - so the motion should be granted. Finally, the defense argues that the motion should be denied because it is not accompanied by “an answer or other proposed pleading.” However, the plaintiff is not proposing the filing of any pleading. The plaintiff is seeking to vacate a dismissal of a pleading already on file. If the Court does require that a new pleading by submitted, this is not fatal to plaintiff’s motion as a pleading can be offered at the hearing. Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 403. Thus, plaintiff Michael Dolcini respectfully requests that (1) the dismissal of this action entered on November 9, 2021 be vacated; (2) the action be reinstated and placed back onto the court’s case management calendar; and (3) plaintiff be granted 60 days to serve the summons and complaint on defendants. The defense failed to request any attorneys’ fees or costs as a condition of vacating the dismissal so relief should be unconditional. Dated: February 15, 2022 HARRIMAN LAW Jonathan C. Harriman Attorney for Plaintiff Michael Dolcini 2 REPLY TO OPPOSITION TO MOTION TO SET ASIDE DISMISSAL II Harriman Law (DmVCDO‘l-booNA MNNMNNMNAAAAAAAAAA NOUU‘l-hOONéotomNOVO‘l-§OONAO ED D D D N 00 PROOF OF SERVICE | am employed in the City of Oakland, County of Alameda, State of California. | am over 18 years of age and not a party to this action. My business address is Harriman Law, 1300 Clay Street, Suite 600, Oakland, CA 94612. On the date below | served a true copy of the following document(s): REPLY TO OPPOSITION TO MOTION TO SET ASIDE DISMISSAL on the interested parties to said action by the following means: E (BY MAIL) By placing a true copy of the above, enclosed in a sealed envelope with appropriate postage, for collection and mailing following our ordinary business practices. | am readily familiar with this business’s practice for collecting and processing correspondence for mailing. On the same day that the correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. (BY OVERNIGHT DELIVERY) By placing a true copy of the above, enclosed in a sealed envelope with delivery charges to be billed to Harriman Law, for delivery by Federal Express to the address(es) shown below. (BY FACSIMILE TRANSMISSION) By transmitting a true copy of the above by facsimile transmission from facsimile number (510) 988-5088 to the attorney(s) or party(ies) shown below. (BY MESSENGER) By placing a true copy of the above in a sealed envelope and by giving said envelope to an employee of a messenger service for guaranteed, same-day delivery to the address(es) shown below. (BY HAND DELIVERY) By personal delivery of a true copy of the above to the attorneys or parties shown below (BY E-MAIL or ELECTRONIC TRANSMISSION) Pursuant to Code of Civil Procedure § 1010.6, | caused the documents to be sent to the persons at the e-mail addresses listed below. | did not receive, within a reasonable period of time, after the transmission, any electronic message or other indication that the transmission was unsuccessful. Counsel for Duc Le Dennis Moriarty (dmoriarty@cwmlaw.com) Arlen Litman-Cleper (alitman@cwmlaw.com) Cesari, Wener and Moriarty 75 Southgate Avenue Daly City, CA 94015 Counsel for Lyft, Inc. unknown | declare under penalty of perjury under the law of the State of California that the foregoing is true and correct. DATED: February 15, 2022 j] E Jonathan Harriman