Notice_of_motionMotionCal. Super. - 4th Dist.April 10, 2018NO 0 N N O N Un Bs W N N O N N O N N N O N N O N mm e m e m e m e m e m p d e b eb 0 0 ~N 1 a N b n BA W N = O V e Y N E W ND = O ELECTRONICALLY FILED Superior Court of California, IGOR FRADKIN, ES S County of Orange 2 ESQ. - State Bar No. 299491 12/03/2 018 at 02:12:00 PM RONALD R. HEARD, ESQ. — State Bar No. 244049 Clerk of the Superior Court DOWNTOWN L.A. LAW GROUP By Jeannette inling, De fii Clerk 3460 Wilshire Blvd., Suite 950 Los Angeles, CA 90010 Tel: (213) 389-3765 Fax: (877) 389-2775 Email: Igor@downtownlalaw.com Attorneys for Plaintiffs, JESSICA LEA DOUBERLY PIERSON SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE JESSICA LEA DOUBERLY PIERSON, an Case No.: 30-2018-00985101 individual, Judge: Hon. David R. Chaffee Dept.: C20 Plaintiffs, NOTICE OF MOTION AND MOTION v. TO SET ASIDE DISMISSAL AND PLACE MATTER BACK ON ACTIVE LACEY HILL, an individual; and DOES 1-25, CALENDAR; MEMORANDUM OF inclusive, POINTS AND AUTHORITIES IN SUPPORT THEREOF; Defendants. DECLARATION OF PLAINTIFF'S COUNSEL RONALD R. HEARD; [PROPOSED] ORDER Date: December 28, 2018 Time: 9:30 am Dept.: C20 Reservation No.: 72939725 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on December 28, 2018 at 9:30 a.m., or as soon thereafter as the matter may be heard in Department C20 of the above-referenced Court, located at 700 Civic Center Drive West, Santa Ana, CA 92701, Plaintiff JESSICA LEA DOUBERLY PIERSON, by and through her attorneys will move for an Order to Set Aside Dismissal. 1 NOTICE OF MOTION AND MOTION TO SET ASIDE DISMISSAL AND PLACE MATTER BACK ON ACTIVE CALENDAR; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF PLAINTIFF'S COUNSEL RONALD R. HEARD; [PROPOSED] ORDER NO 0 NN NN Wn Re W N N O N N N N N N N N N m t mm o d md p t p d p e d pe d pe ed pe d 0 ~ ~ O N Wn lA W N = O VV N N R R W N = O This motion will be made pursuant to the provisions of Section 473 of the California Code of Civil Procedure on the grounds that the dismissal entered in this action was entered by reason of inadvertence, mistake, or excusable neglect. This motion will be based on this Notice of Motion, the accompanying Memorandum of Points and Authorities, Declaration of Plaintiff’s counsel, Ronald R. Heard, pleadings, files and records in the above entitled action, and such oral and documentary evidence as may be presented at the hearing of this motion. DATED: December 3, 2018 DOWNTOWN L.A. LAW GROUP Igor Fradkin, Esq. Ronald R. Heard, Esq. Attorneys for Plaintiffs, JESSICA LEA DOUBERLY PIERSON 2 NOTICE OF MOTION AND MOTION TO SET ASIDE DISMISSAL AND PLACE MATTER BACK ON ACTIVE CALENDAR; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF PLAINTIFF'S COUNSEL RONALD R. HEARD; [PROPOSED] ORDER OO 00 N N O N n n Rh W N N N N O N O N N O N NN e m e t p t md mt b d e d p d pe B H R O Y E R E B I R E IS T 3 a c d F F 6 0 ~~ 3S MEMORANDUM OF POINTS AND AUTHORITIES STATEMENTS OF FACTS This lawsuit arises out of a personal injury action that occurred on May 13, 2017 and was filed on April 10, 2018. On October 11, 2018 a Case Management Conference was held in Department C20 at which time I appeared via Court Call for the Plaintiff. No other appearances were made. The case management conference was continued. It was my understanding that the Case Management Conference was continued until November 15, 2018 and I served Notice of such that same day. Apparently, the Court continued the Case Management Conference to November 8, 2018. On November8, 2018, none of the parties to the case appeared and the Court dismissed the case. Plaintiff's counsel’s failure to appear was due to counsel’s inadvertence and making the mistake regarding calendaring the correct date for the continued CMC. Placing the matter back on active calendar will not in any manner prejudice the Defendant. STATEMENT OF THE LAW The Court has the discretion to set aside a dismissal on a showing of inadvertence, mistake or excusable neglect where little or no prejudice is shown by the opposing side. ARGUMENTS 1. SECTION 473 OF THE CODE OF CIVIL PROCEDURE AUTHORIZES THE COURT TO RELIEVE A PARTY OR HIS LEGAL REPRESENTATIVE FROM A DISMISSAL ENTERED THROUGH MISTAKE, INADVERTENCE, SURPRISE AND/OR EXCUSABLE NEGLECT WHEN RELIEF IS SOUGHT BY A 3 NOTICE OF MOTION AND MOTION TO SET ASIDE DISMISSAL AND PLACE MATTER BACK ON ACTIVE CALENDAR; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF PLAINTIFF'S COUNSEL RONALD R. HEARD; [PROPOSED] ORDER OO 0 NN O N Wn A W N N N N N N N N N N m = e m e m e m e m md p m mt e d RX N N O N Un ER W N = O O X N O N N R W = O TIMELY MOTION AND THE MOVING PARTY HAS A MERITORIOUS DEFENSE TO THE ACTION Pursuant to the California Code of Civil Procedure §473, on application, the court, may, on such terms as may be just, relieve a party, or his legal representative from a judgment, order, or other proceeding taken against him through mistake, inadvertence, surprise or excusable neglect. Furthermore, California Code of Civil Procedure § 473(b) in relevant part provides that: Notwithstanding any other requirements of this section, the 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. y urp g A motion for the relief from dismissal is addressed to the sound discretion of the trial court (Weitz v. Yankosky) (1966) 63 Cal.2d 849, 854, 48 Cal.Rptr. 620). Such discretion should be exercised with a view to seeing that justice is done, particularly when prompt application for relief is made (Sanford v. Smith (1970) 11 Cal. App. 3d 991, 998, 90 Cal.Rptr. 256). The order for dismissal was entered on November 8, 2018. Plaintiff promptly filed the present motion and therefore is timely seeking that this matter be placed back on active calendar. 4 NOTICE OF MOTION AND MOTION TO SET ASIDE DISMISSAL AND PLACE MATTER BACK ON ACTIVE CALENDAR; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF PLAINTIFF'S COUNSEL RONALD R. HEARD; [PROPOSED] ORDER OO 0 NN O n Ln Re W N D N D N O N N N N O N N N m m mm e m e m e t e t m d e d e d pe t 0 N N n y RR W N = O O N N R W ND = O 2. THE LAW FAVORS A DISPOSITION OF A MATTER WHICH IS BASED ON | THE MERITS OF THE CASE AT ISSUE The law favors, whenever possible, a hearing on the merits and disfavors a party who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his or her adversary. Thus, appellate courts are much more disposed to affirm an order if the result is to compel a trial on the merits than they are when the judgment by a form of default is allowed to stand and it appears that a substantial defense could be made. (Weitz v. Yankosky (1966) 63 Cal.2d 849, 854-855, 48 Cal.Rptr. 620); (Slusher v. Dunner (1977) 69 Cal.App.3d 747, 753, 183 Cal.Rptr. 265). In the present case, Plaintiff has substantially complied with the court requirement and no prejudice to the defendant has been created. 3. IN ORDER FOR AN ORDERTO BE SET ASIDE THE MOVING PARTY MUST SHOW REASONABLE DILIGENCE IN SEEKING RELIEF In Goya v. P.E.R.U. Enterprises, (1978) 87 Cal.App.3d 886, 151 Cal.Rptr. 258, the court held that reasonable diligence in seeking relief from a default or default judgment is demonstrated where the moving party adheres to the requirement of Code of Civil Procedure, §473.5(a), which provides as follows: "Such notice of motion will be served and filed within a reasonable time, but in no event exceeding the earlier of: (I) two years after entry of default judgment against him; or (ii) 180 days after service on him of written notice that such default or default judgment has been entered.” In the present case, the Court entered an order of dismissal on November 8, 2018. Plaintiff's current Motion to Set Aside Dismissal, is well within the 180 days necessary to make a timely motion. 5 NOTICE OF MOTION AND MOTION TO SET ASIDE DISMISSAL AND PLACE MATTER BACK ON ACTIVE CALENDAR; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF PLAINTIFF'S COUNSEL RONALD R. HEARD; [PROPOSED] ORDER ro LJ C.C.P. § 473 is a remedial measure to be liberally construed and any doubts existing as to the propriety of setting aside a default there under is to be resolved in favor of a hearing on the merits. Bergman v. Klassman (1971) 17 Cal.App. 3d 900, 910, 9 Cal.Rptr. 417. If the party opposing the motion makes no showing of prejudice due to any delay or of injustice that would result from a trial on the merits, only very slight evidence is required to justify a court in setting aside the default. Buckert v. Briggs (1971)15 Cal.App. 3d 296, 302-303, 93 Cal.Rptr. 61. In the present case, this motion has been promptly brought before the court. An equitable resolution of this matter is possible only if both parties have had the opportunity to assert their rights at an open forum. It is further submitted to the Court that the Defendant will in no manner be prejudiced by placing this matter back on active calendar. It is therefore respectfully requested that Plaintiff's counsel’s inadvertence and mistake be found to be deemed excusable and the Dismissal in this matter be set aside and the case be placed back on active calendar. DATED: December 3, 2018 Igor Fradkin, Esq. Ronald R. Heard, Esq. Attorneys for Plaintiffs, JESSICA LEA DOUBERLY PIERSON 6 NOTICE OF MOTION AND MOTION TO SET ASIDE DISMISSAL AND PLACE MATTER BACK ON ACTIVE CALENDAR: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF: DECLARATION OF PLAINTIFF'S COUNSEL RONALD R. HEARD: [PROPOSED] ORDER Oo 0 N N NN nn B R A W N N O N O N N N N O N D N D N m e e t mm e d e t e m e m e t e s ee 0 NN O N Wn RA W N D = O O OV N N N R W = O DECLARATION OF RONALD R. HEARD I, RONALD R. HEARD, declare: 1. I am an attorney at law duly licensed to practice before all the courts of the State of California. I am an associate at Downtown L.A. Law Group, counsel of record for Plaintiff JESSICA LEA DOUBERLY PIERSON (“Plaintiff”). The facts set forth in this Declaration are within my personal knowledge, except as to those facts set forth on information and belief, and if called as a witness, I would and could competently testify to the following. 2. This declaration is offered in support of Plaintiff’s Motion yo Set Aside Dismissal. 3. This lawsuit arises out of a personal injury action that occurred on May 13, 2017 and was filed on April 10, 2018. 4, On October 11, 2018 a Case Management Conference was held in Department C20 at which time I appeared via Court Call for the Plaintiff. No other appearances were made. 5. The case management conference was continued. It was my understanding that the Case Management Conference was continued until November 15, 2018 and I served Notice that same day. A true and correct copy of said notice is attached hereto and identified as Exhibit 11. 6. Apparently, the Court continued the Case Management Conference to November 8, 2018. 7 On November 8, 2018, none of the parties to the case appeared and the Court dismissed the case. 8. Plaintiff’s counsel’s failure to appear was due to my inadvertence and making the mistake regarding calendaring the correct date for the continued CMC. im " 7 NOTICE OF MOTION AND MOTION TO SET ASIDE DISMISSAL AND PLACE MATTER BACK ON ACTIVE CALENDAR; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF PLAINTIFF'S COUNSEL RONALD R. HEARD; [PROPOSED] ORDER OO 0 NN O N Un BA W O N I Y P D m = ee e t e t e d p e d e d e d e k pe —_ O O N O 0 N N O N Un B R E W NN = OO 9. Placing the matter back on active calendar will not in any manner prejudice the Defendant. I declare under penalty of perjury of the laws of the State of California that the foregoing is true and correct. Executed this 3rd day of a . in Angeles, California. 7 rm t 4 € Ba RONALD R. HEARD, ESQ. 8 NOTICE OF MOTION AND MOTION TO SET ASIDE DISMISSAL AND PLACE MATTER BACK ON ACTIVE CALENDAR: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF: DECLARATION OF PLAINTIFF'S COUNSEL RONALD R. HEARD: [PROPOSED] ORDER EXHIBIT *1” D o w n t o w n L. A. La w Gr ou p 34 60 Wi ls hi re Bl vd ., Su it e, 95 0 L o s A ng el es , CA 90 01 0 DO 00 NN ON Wn Ah W N = P d p m b p o m d d m d be nd p m b S N R U R Y P [ P R R B s s I a a r p = 8s IGOR FRADKIN, ESQ.; State Bar No. 299491 FARID YAGHOUBTIL, ESQ., State Bar No. 282476 DOWNTOWN L.A. LAW GROUP 3460 Wilshire Blvd., Suite 950 Los Angeles, CA 90010 Tel: (213) 389-3765 Fax: (877) 389-2775 Email: Igor@downtownlalaw.com Attorneys for Plaintiffs, Jessica Lea Douberly Pierson SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE JESSICA LEA DOUBERLY PIERSON, an individual, Plaintiffs, V. LACEY HILL, an individual; and DOES 1-25, inclusive, Defendants. TO ALL PARTIES HEREIN AND TO THEIR ATTORNEYS OF RECORD: NOTICE IS HEREBY GIVEN that, on October 11, 2018 at approximately 8:30 a.m., in Department “C20” before the Honorable Judge David R. Chaffee presiding, of the above captioned Court, located 700 Civic Center Drive West, Santa Ana, CA 92701, the ORDER TO SHOW CAUSE came for regular hearing before the Court. 1 ELECTRONICALLY FILED Superior Court of California, County of Orange 10/11/2018 at 02:26:00 PM Clerk of the Superior Court By e Clerk, Deputy Clerk Case No.: 30-2018-00985101 NOTICE OF RULING AND NOTICE OF CASE MANAGEMENT CONFERENCE NOTICE OF RULING D o w n t o w n L. A. La w Gr ou p 34 60 Wi ls hi re Bl vd ., Su it e, 95 0 Lo s An ge le s, C A 90 01 0 OW 0 NN O N Bn Ah W N N o P t p d pe nd fe md pe nd ee d fe ed ® I R V R E B T S T 3 a a d 2 6 8 8 = 3 Counsel Ronald Heard appeared for Plaintiff Jessica Lea Douberly Pierson and no other appearances were made. The COURT ISSUED THE FOLLOWING RULINGS: 1. Case Management Conference continued to November 15, 2018 at 8:30 a.m. in Department C20. 2. Plaintiff was ordered to give notice. DATED: October 11, 2018 2 DOWNTOWN L.A. LAW GROUP Li 9 R FRADKIN, Esq. orneys for Plaintiff Sesick LEA DOUBERLY PIERSON NOTICE OF RULING D o w n t o w n L. A. La w Gr ou p 34 60 Wi ls hi re Bl vd ., Su it e, 95 0 Lo s An ge le s, CA 90 01 0 NO 00 NN O N n n RB W N | I E C LS OS CS E E 0 NN O N nn BA L O N D = O O V W ® N N O D N D N N B E E W N N —- Oo PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES. [ am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 3460 Wilshire Blvd., Suite 950, Los Angeles, California 90010. On October 11, 2018, I served the foregoing document described as: NOTICE OF RULING on said parties in this action as follows: Lacey Hill 15248 Spectrum Irvine, CA 92618 ™ BY MAIL: Iam familiar with this firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. [ am aware that on motion of the party, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [ declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on October 11, 2018, at Los Angeles, California. Dbl Nhe Elizabeth Sanchez 3 NOTICE OF RULING OC 0 NN O N Wn A W N po d p d pu b pu m pe d p m b p m b p m b um d p m b OO 0 NN Oo n n BH WwW N = oO 20 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES. I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 3460 Wilshire Blvd., Suite 950, Los Angeles, California 90010. On December 3. 2018, I served the foregoing document described as: NOTICE OF MOTION AND MOTION TO SET ASIDE DISMISSAL AND PLACE MATTER BACK ON ACTIVE CALENDAR; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF PLAINTIFF'S COUNSEL RONALD R. HEARD; [PROPOSED] ORDER on said parties in this action as follows: Lacey Hill 15248 Spectrum Irvine, CA 92618 M BY MAIL: I am familiar with this firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. | am aware that on motion of the party. service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [ declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on December 2 2018, at Los Angeles, California. Hi hth So be, Elizabetlf Sanchez/ 9 NOTICE OF MOTION AND MOTION TO SET ASIDE DISMISSAL AND PLACE MATTER BACK ON ACTIVE CALENDAR: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF: DECLARATION OF PLAINTIFF'S COUNSEL RONALD R. HEARD: [PROPOSED] ORDER 12/3/2018 Mail - Esanchez@downtownlalaw.com Superior Court of Orange County - Motion Reservation Request - CONFIRMATION donotreply@occourts.org Mon 12/3/2018 12:11 PM To: Elizabeth Sanchez ; Superior Court of California, County of Orange RESERVE A MOTION DATE Your reservation request has been CONFIRMED by the Superior Court. The hearing date and time below has been reserved. You will be asked to provide your reservation number to the court at a later date. MOVING PAPERS MUST BE E-FILED WITHIN 24 HOURS AFTER COMPLETING THE ON-LINE RESERVATION. Failure to submit your moving papers within 24 hours will result in the automatic CANCELLATION of the reservation. NOTE: To EXPEDITE your MOTION filing place the appropriate Court Reservation number (e.g. 7ZXXXXXXX) on each Motion being submitted. Please do not reply to this email. Reservation Number: 72939725 Hearing Date: December 28, 2018 Hearing Time: 9:30 AM Department: C20 Motion Type: Motion to Set Aside/Vacate Dismissal Case Number: 30-2018-00985101-CU-PA-CIC Case Title: Pierson vs. Hill Judicial Officer: Hon. David Chaffee Email: esanchez@downtownlalaw.com Date of Request: December 3, 2018 Time of Request: 12:10 PM Transaction Number: 889018151 Superior Court of California = County of Orange https://outlook.office.com/owa/?realm=downtownlalaw.com&exsvurl=1&ll-cc=1033&modurl=0&path=/mail/inbox 7”
