How to File a Substitute or Corrected Brief?

Useful Rulings on Motion to File Substitute or Corrected Brief

Recent Rulings on Motion to File Substitute or Corrected Brief

JOE RELEFORD VS POSTMATES INC, ET AL.

(See Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613; see also Cal. Rules of Court, rule 3.1320, subd. (i).) Defendant Postmates has not filed a motion to strike. Defendant Postmates has not provided authority upon which the Court may sustain the demurrer on the ground that the FAC was untimely filed. California Code of Civil Procedure section 430.10 does not provide the Court with such authority.

  • Hearing

JOE RELEFORD VS POSTMATES INC, ET AL.

(See Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613; see also Cal. Rules of Court, rule 3.1320, subd. (i).) Defendant Postmates has not filed a motion to strike. Defendant Postmates has not provided authority upon which the Court may sustain the demurrer on the ground that the FAC was untimely filed. California Code of Civil Procedure section 430.10 does not provide the Court with such authority.

  • Hearing

JAMES REED VS ROBERT LAFLEUR

Leader v. Health Industries of America Inc (2001) 89 Cal.App.4th 603, 620. “An attorney negligently fails to diligently prosecute an action. Code of Civil Procedure section 473 provides that upon a proper motion the court shall vacate a default judgment or dismissal entered because of an attorney's mistake, inadvertence, surprise, or neglect. Does that mean that a trial court may not dismiss an action for failure of the attorney to diligently prosecute the action under section 583.410? No.

  • Hearing

BALBOA CAPITAL CORPORATION V. GALAXY OUTDOOR LLC

(Leader v. Health Industries of Am., Inc. (2001) 89 Cal.App.4th 603, 615-616.) Defendant carries the burden of establishing inadvertence, surprise, mistake or excusable neglect by a preponderance of the evidence. (Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275, 279.) Defendant’s motion is timely. Defendant submitted a copy of its proposed answer. (ROA No. 43.)

  • Hearing

AZADEH EGHTERAFI VS MALLORY SEPLERKING ET AL

Leader v. Health Industries of America Inc (2001) 89 Cal.App.4th 603, 620. “An attorney negligently fails to diligently prosecute an action. Code of Civil Procedure section 473 provides that upon a proper motion the court shall vacate a default judgment or dismissal entered because of an attorney's mistake, inadvertence, surprise, or neglect. Does that mean that a trial court may not dismiss an action for failure of the attorney to diligently prosecute the action under section 583.410? No.

  • Hearing

DANIEL KANG VS VOLVO CARS OF NORTH AMERICA, LLC, ET AL.

(Leader v. Health Ind. Of America, Inc. (2001) 89 Cal.App.4th 603, 613.) Absent prejudice, trial delay alone is not grounds to deny a motion for leave to amend. (See Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 563-65.)

  • Hearing

JOE RELEFORD VS POSTMATES INC, ET AL.

(See Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613; see also Cal. Rules of Court, rule 3.1320, subd. (i).) Plaintiff had until August 10, 2020 to file a first amended complaint after the Court granted Defendant Kim’s motion to strike on July 21, 2020. Plaintiff waited until August 12, 2020 to file the FAC. Thus, Plaintiff’s FAC is untimely. However, there is no evidence Defendant Kim gave notice of the Court’s July 21, 2020 order to Plaintiff.

  • Hearing

DANIEL KANG VS VOLVO CARS OF NORTH AMERICA, LLC, ET AL.

(Leader v. Health Ind. Of America, Inc. (2001) 89 Cal.App.4th 603, 613.) Absent prejudice, trial delay alone is not grounds to deny a motion for leave to amend. (See Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 563-65.)

  • Hearing

ALEJANDRA ARTEAGA, ET AL. VS FCA US, LLC, ET AL.

(Leader v. Health Ind. of America, Inc. (2001) 89 Cal.App.4th 603, 613.) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend….” (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530.) Prejudice includes “delay in trial, loss of critical evidence, or added costs of preparation.” (Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448.)

  • Hearing

TYLER WESTBROOK VS CHRISTINE KOHLER EKSTRAND, M.D.

Pursuant to Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 618, a § 473(b) motion can only be used to vacate a dismissal that is the “procedural equivalent of a default.” Pursuant to Gotschall v. Daley (2002) 96 Cal.App.4th 479, 483-484, § 473(b) was never intended to be a catch-all remedy for every case of poor judgment on the part of counsel that results in dismissal of an action. Pursuant to English v.

  • Hearing

SCILABS NUTRACEUTIALS, INC VS. LUBERSKI

(Leader v. Health Industries of Am., Inc., 89 Cal. App. 4th 603, 615 (2001).) A court may grant discretionary relief upon the moving party’s showing of mistake, inadvertence, surprise or excusable neglect. (Id. at 615-616.) A court must grant mandatory relief upon a showing by an attorney declaration of mistake, inadvertence, surprise or neglect. (Id. at 616.) Cross-Complainant Luberski, Inc. filed three different motions for terminating sanctions.

  • Hearing

AMAZON PRODUCE NETWORK OF CALIFORNIA, LLC, A LIMITED LIABILITY COMPANY VS QUANTUM TRANSPORTATION, LP, A LIMITED PARTNERSHIP, ET AL.

(Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612.) Defendant timely seeks to set aside the default entered on February 24, 2020 due to Plaintiff’s counsel’s misconduct, or alternatively, pursuant to Section 473, subdivision (b)’s mandatory provision.

  • Hearing

SCILABS NUTRACEUTIALS, INC. VS. LUBERSKI INC.

(Leader v. Health Industries of Am., Inc., 89 Cal. App. 4th 603, 615 (2001).) A court may grant discretionary relief upon the moving party’s showing of mistake, inadvertence, surprise or excusable neglect. (Id. at 615-616.) A court must grant mandatory relief upon a showing by an attorney declaration of mistake, inadvertence, surprise or neglect. (Id. at 616.) Cross-Complainant Luberski, Inc. filed three different motions for terminating sanctions.

  • Hearing

ALETHA LUCILLE HILL VS RENEE MARIE COSS AKA RENEE MARIE JONES AKA RENEE MARIE ROBINSON

Leader v. Health Indus. of America, Inc. (2001) 89 Cal.App.4th 603, 611.) Cano v. Glover (2006) 143 Cal.App.4th 326, 328–332 provides: “Section 581, subdivision (f) provides: “The court may dismiss the complaint as to that defendant, when:..[¶] ..... [¶] (2).... after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend within the time allowed by the court and either party moves for dismissal.”

  • Hearing

AZIZ ALAQUI VS YEVGENIY VAYNERMAN

Leader v. Health Industries of America Inc (2001) 89 Cal.App.4th 603, 620. “An attorney negligently fails to diligently prosecute an action. Code of Civil Procedure section 473 provides that upon a proper motion the court shall vacate a default judgment or dismissal entered because of an attorney's mistake, inadvertence, surprise, or neglect. Does that mean that a trial court may not dismiss an action for failure of the attorney to diligently prosecute the action under section 583.410? No.

  • Hearing

EISNER, A PROFESSIONAL CORPORATION, A CALIFORNIA CORPORATION VS JOE SILVER , ET AL.

(Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612.) The Motion was filed less than six months after entry of default, making it timely under the mandatory provision. It is also accompanied by an attorney affidavit of fault that explains Defendants forwarded the Summons and Complaint to attorneys Dennis B. Ellman and Robert Marshall at Greenberg Glusker Fields Claman & Machtinger LLP (“Greenberg Gluckster”). (Motion, Silver Decl., ¶¶2-6.)

  • Hearing

  • County

    Los Angeles County, CA

SARAY ROMERO VAZQUEZ ET AL VS HUNTER WAYNE LASSOS ET AL

(Leader v. Health Ind. of America, Inc. (2001) 89 Cal.App.4th 603, 613.) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend….” (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530.) Prejudice includes “delay in trial, loss of critical evidence, or added costs of preparation.” (Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448.)

  • Hearing

  • Type

    Personal Injury/ Tort

  • Sub Type

    Auto

KIM D MIDDLETON ET AL VS HOLLYWOOD HEALTH CENTER INC ET AL

Leader v. Health Ind. of America, Inc., 89 Cal. App. 4th 603, 613 (2001). “The power to permit amendments is interpreted very liberally as long as the plaintiff does not attempt to state facts which give rise to a wholly distinct and different legal obligation against the defendant.” Herrera v. Superior Court, 158 Cal. App. 3d 255, 259 (1984). II. Analysis A.

  • Hearing

MHJ GROUP INC ET AL VS JI LI ET AL

Leader v. Health Ind. of America, Inc., 89 Cal. App. 4th 603, 613 (2001). “The power to permit amendments is interpreted very liberally as long as the plaintiff does not attempt to state facts which give rise to a wholly distinct and different legal obligation against the defendant.” Herrera v. Superior Court, 158 Cal. App. 3d 255, 259 (1984).

  • Hearing

GOLDEN WEST PATIO HOMES OWNERS ASSOCIATION V. KIM

(Leader v. Health Industries of Am., Inc. (2001) 89 Cal. App. 4th 603, 615.) On 5/6/19, the Court granted the petition by Petitioner Golden West Patio Homes Owners Association (the “Association”) against Respondents, including moving party, for summary removal pursuant to Civil Code § 4785. Thereafter, the Court awarded attorney fees on 12/2/19 to Petitioner. The Judgment for attorney fees and costs was signed on 1/2/20, and notice of entry of judgment thereafter was served on 1/3/20.

  • Hearing

PETER RUSSELL VS DOMINICK OLIVERI, ET AL.

(Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612.) The Motion was filed less than six months after entry of default, making it timely under the mandatory provision. It is also accompanied by an attorney affidavit of fault that explains Cross-Defendant’s counsel failed to calendar the date by which to answer the Cross-Complaint. (Motion, Nielsen Decl., ¶3.) The Motion is also accompanied by a copy of Cross-Defendant’s proposed Answer to the Cross-Complaint. (Id. at Exh. 2.)

  • Hearing

  • County

    Los Angeles County, CA

CLARK VS. CLARK

(Leader v. Health Industries of Am., Inc., 89 Cal. App. 4th 603, 615 (2001).) A court may grant discretionary relief upon the moving party’s showing of mistake, inadvertence, surprise or excusable neglect. (Id. at 615-616.) A court must grant mandatory relief upon a showing by an attorney declaration of mistake, inadvertence, surprise or neglect. (Id. at 616.) Here, Defendant’s counsel has made a showing of inadvertence on the part of defense counsel warranting mandatory relief.

  • Hearing

KAREN R. AVILES VS FCA US LLC

(Leader v. Health Indus. of America, Inc. (2001) 89 Cal.App.4th 603, 613.) This is because a trial court possesses “authority to strike pleadings ‘not filed in conformity with its prior ruling.’” (Id [quoting Richard v. Grobstein, Goldman, Stevenson, Siegel, LeVine & Mangel (1992) 6 Cal.App.4th 157, 162].)

  • Hearing

TOVELLA VS. MEGARIT

(Leader v. Health Industries of Am., Inc. (2001) 89 Cal.App.4th 603, 615-616 (“Leader”).) Discretionary relief authorizes the court, “upon any terms as may be just, [to] relieve a party ... from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (CCP § 473, subd. (b); Leader, supra, 89 Cal.App.4th at p. 615-616.)

  • Hearing

JHON DORIA VS MANOUCHER SHIRBACHEH ET AL

Leader v. Health Industries of America Inc (2001) 89 Cal.App.4th 603, 620. “An attorney negligently fails to diligently prosecute an action. Code of Civil Procedure section 473 provides that upon a proper motion the court shall vacate a default judgment or dismissal entered because of an attorney's mistake, inadvertence, surprise, or neglect. Does that mean that a trial court may not dismiss an action for failure of the attorney to diligently prosecute the action under section 583.410? No.

  • Hearing

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