Preview
Raymond Ghermezian (Bar Number 198777)
RAYMOND GHERMEZIAN, E-FILED
A PROFESSIONAL LAW CORPORATION 5/4/2020 8:00 AM
3435 Wilshire Boulevard, Suite 1800
Superior Court of California
Los Angeles, California 90010
County of Fresno
Tel: (323) 900-5800
Fax: (323) 900-5801 By: A. Ramos, Deputy
Attorneys for Plaintiff
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF FRESNO
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CARL MASON, CASE NO.: 18CECG03822
12 Plaintiff, PLAINTIFF'S REPLY TO
DEFENDANT'S OPPOSITION TO
13 vs. PLAINTIFF'S MOTION FOR RELIEF
PURSUANT TO CCP I[473:
14 FRESNO AREA EXPRESS, et al., MEMORANDUM OF POINTS AND
AUTHORITIES; [PROPOSED]
15 Defendants. SECOND AMENDED COMPLAINT
16 DATE: April 9, 2020
TIME: 3:30 P.M.
17 DEPT: 503
Action Filed: October 15, 2018
18 Trial Date: Not Applicable
TO THK COURT, TO ALL PARTIES HEREIN AND TO THEIR COUNSEL OF
20 RECORD:
21 PLEASE TAKE NOTICE THAT Plaintiff CARL MASON submits the following Reply
22 to Defendant CITY OF FRESNO's Opposition to Plaintiff s Motion for Relief pursuant to C.C.P.
23 [[473.
24 This Reply is based on the attached Memorandum of Points and Authorities, the attached
25 Proposed Second Amended Complaint, the pleadings and files in this matter, and such further
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PLAINTIFF'S REPLY TO DEFENDANT CITY OF FRESNO'S OPPOSITION TO
PLAINTIFFS MOTION FOR RELIEF
oral and written evidence as may be offered at or before the heari er.
DATED: April 2, 2020 RAYMOND GHERM ROPES SIONAL
LAW CORPORATI
BY
RAYMOND E IAN
Attorneys f Plaintiff
CARL SON
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PLAINTIFFS REPLY TO DEFENDANT CITY OF FRESNO'S OPPOSITION TO
PLAINTIFFS MOTION FOR RELIEF
MEMORANDUM OF POINTS AND AUTHORITIES
1. PlaintitPs Motion for Relief of the Involuntarv Dismissal of this Action Pursuant
to C.C.P. 8473(bl Is Proner.
The court may relieve a party or her legal representative from a judgment, dismissal,
order, or other proceeding taken against her through her mistake inadvertence, surprise or
excusable neglect. C.C.P. tj473(b). Because the law strongiy favors trial and disposition on the
merits, any doubts in applying C.C.P. tj473 must be resolved in favor of the party seeking relief.
Huh v. g'ang (2007) 158 Cal.App.4th 1406, 1419-1420.
2. PlaintifPs Counsel Has Submitted an "Affidavit of Fault" Pursuant to the
10 "Mandatorv" Provisions of C.C.P. 8 473(b1. Plaintiff Is Entitled to "Mandatorv" Relief
Settinu Aside the Dismissal of this Action.
In 1988, the Legislature added a "fourth sentence" to C.C.P. tj473(b) and provided that
13 when an application for relief is accompanied by an attorney affidavit of fault, the court shall
vacate a default or dismissal entered against the attorney's client. Senate Bill 1975, 1987-1988,
15 Regular Session; Historical and Statutory Notes for C.C.P. tj473. It is well-settled that when an
16 application for relief under C.C.P. tj473(b) is accompanied by an attorney's sworn affidavit
17 attesting to his or her mistake, inadvertence, surprise, or neglect, the court is required to grant
18 relief, in other words relief is mandatory. Beeman v. Burling (1990) 216 Cal.App.3d 1586, 1604-
19 1605 snd fn. 14; Billings v. Health Plan ofAmerica (1990) 225 Cal.App.3d 250, 256; Rogalski v.
20 Nabers Cadillac (1992) 11 CaLApp.4th 816, 821,
21 The purpose of this law imposing mandatory relief is to relieve the innocent client of the
22 burden of the attorney's fault, to impose the burden on the erring attorney, and to avoid
23 precipitating more litigation in the form of malpractice suits. Berman, 216 Cal.App.3d at 1605,
24 fn. 14. Where an "attorney affidavit of fault" is filed, there is no requirement that the attorney's
25 mistake, inadvertence, etc. be excusable, i.e. relief must be granted even if resulting from
26 inexcusable neglect. Standard Microsystetns Corp. v. Winbond E1ectronics Corp. (2009) 179
27 Cal.App.4th 868, 897. The court is not concerned with the reasons for the attorney's wrongful
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PLAINTIFFS REPLY TO DEFENDANT CITY OF FRESNO'S OPPOSITION TO
PLAINTIFF'S MOTION FOR RELIEF
conduct. Billings, 225 Cal.App.3d at 256.
An attorney is responsible for supervising the work of legal assistants. The error of a
support person is the "fault" of the attorney for purposes of C.C.P. $ 473(b) and relief is
mandatory. Hu v. Fang (2002) 104 Cal.App.4th 61, 64. Here, Mr. Ghermezian has averred that
he is responsible for supervising the work of his assistant. {Declaration Ghermezian, $ 14.) Mr.
Ghermezian has also averred that his declaration is an "attorney declaration of fault."
{Declaration Ghermezian, $ 15.)
Plaintiff has met all of the criteria necessary for mandatory relief under C.C.P. tj473{b).
3. Defendant's Assertion that Plaintiff is Not Entitled to Relief Pursuant to C.C.P.
10 8473th) Is Without Merit.
Defendant's claim that Plaintiff is not entitled, pursuant to C.C.P.tj473(b), to mandatory
12 relief from the involuntary dismissal of this case is predicated on just three cited cases: Huens v.
13 Tatum {1997) 52 Cal.App.4th 259 ("Huens "), Graham v. Beers (1994) 30 Cal.App.4th 1656
14 ("Graham") and Williams v. Los Angeles Unified School District (1994) 23 Cal.App.4th 84
15 (" Williams".)
16 Cases can be distinguishable due to different facts. People v. Thompson (2006) 38 Cal.
17 4'" 811, 820. Juxtaposition of the facts with this case with those in the foregoing three cases
18 demonstrates that none of the authority cited by Defendant supports its claim that PlaintifFs
19 Motion for Relief was, in any manner, improper.
20 Under the facts of this case, Defendant's reliance on Huens v. Tatum (1997) 52
21 Cal.App.4th 259 is improper. In Huens, the Court's decision began with one sentence which
22 shows it is not applicable here:
23 "In this case we hold that the 1992 amendment to Code of Civil Procedure section
473 (further unspecified statutory references are to this Code), which provides for
24 mandatory relief from 'dismissal'esulting from attorney mistake, neglect or
inadvertence, does not apply to a voluntary dismissal entered pursuant to a settlement
25 agreement." Huens, 52 Cal.App.4th at 261.
26 In Huens, shortly after the settlement was executed and the defendants dismissed,
27 plaintifFs attorney discovered he had miscalculated the amount of insurance that was available.
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PLAINTIFF'S REPLY TO DEFENDANT CITY OF FRESNO'S OPPOSITION TO
PLAINTIFF'S MOTION FOR RELIEF
PlaintifFs counsel moved to vacate the dismissal under C.C.P. tj473 motion to vacate the
dismissal based on this "mistake". In affirming the denial of the motion for relief, the reviewing
Court wrote:
"A voluntary dismissal which typically follows a personal injury settlement is
particularly unamenable to section 473 relief for another compelling reason. Settlements
are contracts. To set them aside, one must present contractual grounds for
rescission—fraud, mutual mistake, coercion, etc. Applying section 473 in the manner
suggested here would constitute a serious intrusion into conuact law by allowing a party
to escape the consequences of his agreement upon the mere affidavit of his attorney that
he had made an inexcusable error concerning the applicable facts or law. It would also
undermine our strong public policy in favor of settlements. We believe the Legislature
did not intend such drastic consequences to flow from such a
'noncontroversial'mendment."
Kuens, 52 Cal.App.4th at 264-265 (Citations omitted.)
10 Kuens does not support Defendant's position here. The dismissal from which Plaintiff
seeks relief here was an involuntary dismissal, not a voluntary dismissal.
12 Similarly, Graham is readily distinguishable from this case. Therein, plaintiffs brought
13 an action for personal injuries which were caused by a vehicular accident. The case lay dormant
14 for three and one-half years until March 2, 1993, when the trial court issued and served an order
15 to show cause regarding the dismissal on its own motion pursuant to C.C.P.tj 583.410. The court
16 set the matter for hearing on March 26, 1993. On March 10, 1993, the Grahams filed an at-issue
17 memorandum. Graham, 30 Cal.App.4th at 1658.
18 Ultimately, the trial court ruled that "... the plaintiffs in this case have been inattentive to
19 this case for an unreasonable period of time, and the motion to dismiss is granted." The grounds
20 for the trial court's ruling included not only the lack of activity on the matter but also concessions
21 from plaintiff s counsel that "[he] assumed the matter would settle and made a conscious
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22 decision to relegate it to the 'back burner.' Graham, 30 Cal.App.4th at 1658-1659.
23 The ulal court also denied the Orahams'otion for relief pursuant to C.C.P. tj473 as well
as their motion for reconsideration again asserting that the fundamental basis for its ruling was
25 that "plaintiffs'ounsel assumed the matter would settle and made a conscious decision to
26 relegate it to the 'back burner.' Graham, 30 Cal.App.4th at 1659-1660.
27 Here, there has been no such concession by plaintiffs counsel. Rather, Mr. Ghermezian
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PLAINTIFF'S REPLY TO DEFENDANT CITY OF FRESNO'S OPPOSITION TO
PLAINTIFFS MOTION FOR RELIEF
has thoroughly explained what has happened and what lead to the dismissal of this action:
turmoil in his personal life including the final, lengthy illness and death of his mother as well as
certain members of his office staff who failed miserably in their duties.
Lastly, 8'iiliams offers no succor for Defendant's position here. Like Gmham and unlike
the present case, the judgment of dismissal in Williams was entered pursuant to C.C.P. 1)583.420:
failure to serve the summons and complaint in two years. Having reviewed the facts of that
matter and measuring them against the then criteria for dismissal for failure to prosecute an
action pursuant to then California Rule of Court 373(e), the reviewing court ruled:
"Under these circumstances, there was sufficient basis for the court to conclude
that Williams's counsel was ordy interested in settling the case with minimal effort and
10 that their claim that they had to transfer the case to superior court before serving process
was a pretext and 'afterthought alibi'f the type criticized by Putnam and Yao."
IYilliams, 23 Cal.App.4th at 99.
12 Williams contended that her motion for relief from default should have been granted as a
13 matter of law under the 1992 amendment to C.C.P.tj473 that became effective January 1, 1993.
This amendment included dismissals among the category of orders that a court was required to
15 vacate if an attorney submitted a sworn a6idavit of fault. Williams contends that the trial court
16 erred by applying the 'excusable neglect'tandard that was applicable prior to January 1, 1993,
17 and should have determined that relief was mandatory under the new statute. Williams, 23
18 Cal.App.4th at 104.
19 Rejecting Williams'rgument, the reviewing court noted:
20 "Unfortunately for Williams, the 1992 amendment to section 473 is not
retroactive and does not apply to dismissals entered prior to its effective date. In Beeman
21 v. Burling (1990) 216 Cal.App.3d 1586, 1604-1607, the court held that the 1988
amendment to section 473, which required the court to vacate judgments caused by
22 attorney mistake, did not apply retroactively to defaults entered prior to the effective date
of the statute. The court held that retroactive application would substantially affect the
23 rights of the parties and was impermissible under Aetna Cas. & Surety Co. v. Ind. Acc.
Com. (1947) 30 Cal.2d 388 [182 P.2d 159]. The same principle applies to the 1992
24 amendment and precludes application of the amended statute to the instant dismissal.
Therefore, the trial court properly applied the 'excusable neglect'tandard to the instant
25 case." g'i1liams, 23 Cal.App.4th at 104-105.
26 Additionally, Williams has waived the right to argue that the 1992 amendment governs
27 these proceedings by failing to raise it in the trial court. The motion before the trial court was
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PLAINTIFF'S REPLY TO DEFENDANT CITY OF FRESNO'S OPPOSITION TO
PLAINTIFFS MOTION FOR RELIEF
expressly based upon the "excusable neglect" standard and the amended statute was never
brought to the attention of the trial court. Williams, 23 Cal.App.4th at 105.
Unlike Williams, the dismissal in this matter was predicated on C.C.P.it581(f)(2), not
4 C.C.P.ti583.420.
4. Althouah the Court Has Forbidden Plaintiff From Filius a Second Amended
Comnlaint Without Meeting and Conferrinu With Defense CounseL a Pronosed Second
Amended Comnlaint Is Attached Hereto.
This court ruled that Plaintiff could not file an amended pleading until PlaintifF s counsel
met and conferred with defense counsel. Thus, although Plaintiff had the ability to amend his
10 complaint (specific additional facts to be included in an amended pleading: that when Plaintiff
was waiting to get on the bus, the bus driver had lowered the handicap ramp for another
12 passenger and had struck Plaintiff s knees), he was unable to do so because neither he nor his
13 associated attorney Bahman Mehdizadeh met and conferred with defense counsel. That is the
14 only reason that an amended pleading was not been filed with PlaintifF s initial papers.
15 Although the Plaintiff has been forbidden by the Court from filing a Second Amended
16 Complaint, Plaintiff has attached a Proposed Second Amended Complaint here.
17 5. Conclusion.
18 Plaintiff Defendant's Motion for Sanctions must be de
19 DATED: April 2, 2020 RAYMOND GH A PROFESSIONAL
LAW CORPORA
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21 BY
RAYMO G EZIAN
22 Attorne for Plaint
CA SON
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PLAINTIFF'S REPLY TO DEFENDANT CITY OF FRESNO'S OPPOSITION TO
PLAINTIFF'S MOTION FOR RELIEF
PROOF OF SERVICE
STATE OF CALIFORNIA )
) ss.
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: 3435 Wilshire Boulevard, Suite
41800, Los Angeles, CA 90010
On Anril 2. 2020, I served the foregoing documents described as
PLAINTIFF'S REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION
FOR RELIEF PURSUANT TO CCP tt473: MEMORANDUM OF POINTS AND
AUTHORITIKS; [PROPOSEDj SECOND AMENDED COMPLAINT on all parties in this
action by placing a true copy thereof enclosed in sealed envelopes addressed as follows:
10 SEK ATTACHED MAILING LIST
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BY MAIL. I deposited such envelope(s) in the mail at Los Angeles, California.
12 The envelopes were mailed with postage thereon fully prepaid. I am "readily
familiar" with the firm's practice of collection and processing correspondence for
13 mailing. Under that practice it would be deposited with U.S. Postal Service on the
same day in the ordinary course of business. I am aware on motion of the party
14 served, service is presumed invalid if postal cancellation date or postage meter
date is more than one day after the date of deposit for mailing in affidavit.
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BY PERSONAL SERVICE. I caused such envelope(s) to be delivered by
16 hand to the oIIIces of the addressee(s).
17 (X) BY ELECTRONIC TRANSFER I caused all of the pages of the above
entitled document to be sent to the recipients noted on the attached service list via
18 electronic transfer (E-mail) at the respective E-mail: travis.stokes(Rfresno.aov
19 0 BY FKDEX NEXT DAY AIR MAIL:As follows" I am "readily familiar"
with the firm's practice of collection and processing correspondence by FEDEX
20 NEXT DAY AIR MAIL mailing. Under that practice it was deposited with the
FEDEX NEXT DAY AIR MAIL service on that same day with proper postage
21 thereon fully prepaid at Los Angeles, California in the ordinary course of
business.
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Executed on April 2, 2020 at Los Angeles, California.
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I declare under penalty of perjury under the laws of ornia that the above
24 is true and correct.
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26 atnpler
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MAILING LIST
MASON v. FRESNO AREA EXPRESS. et al.
Fresno County Superior Court
Case No.: 18CECG03822
Travis R. Stokes, Esq. Attorneys for Defendant,
CITY OP FRESNO CITY OF FRESNO
2600 Fresno Street
Fresno, CA, 93721
Telephone: {559) 621-7500
Facsimile: (559) 488-1084
Email: travis.stokes& fresno.aov
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Preview
Raymond Ghermezian (Bar Number 198777) RAYMOND GHERMEZIAN, E-FILED A PROFESSIONAL LAW CORPORATION 5/4/2020 8:00 AM 3435 Wilshire Boulevard, Suite 1800 Superior Court of California Los Angeles, California 90010 County of Fresno Tel: (323) 900-5800 Fax: (323) 900-5801 By: A. Ramos, Deputy Attorneys for Plaintiff SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF FRESNO 10 CARL MASON, CASE NO.: 18CECG03822 12 Plaintiff, PLAINTIFF'S REPLY TO DEFENDANT'S OPPOSITION TO 13 vs. PLAINTIFF'S MOTION FOR RELIEF PURSUANT TO CCP I[473: 14 FRESNO AREA EXPRESS, et al., MEMORANDUM OF POINTS AND AUTHORITIES; [PROPOSED] 15 Defendants. SECOND AMENDED COMPLAINT 16 DATE: April 9, 2020 TIME: 3:30 P.M. 17 DEPT: 503 Action Filed: October 15, 2018 18 Trial Date: Not Applicable TO THK COURT, TO ALL PARTIES HEREIN AND TO THEIR COUNSEL OF 20 RECORD: 21 PLEASE TAKE NOTICE THAT Plaintiff CARL MASON submits the following Reply 22 to Defendant CITY OF FRESNO's Opposition to Plaintiff s Motion for Relief pursuant to C.C.P. 23 [[473. 24 This Reply is based on the attached Memorandum of Points and Authorities, the attached 25 Proposed Second Amended Complaint, the pleadings and files in this matter, and such further 28 1 PLAINTIFF'S REPLY TO DEFENDANT CITY OF FRESNO'S OPPOSITION TO PLAINTIFFS MOTION FOR RELIEF oral and written evidence as may be offered at or before the heari er. DATED: April 2, 2020 RAYMOND GHERM ROPES SIONAL LAW CORPORATI BY RAYMOND E IAN Attorneys f Plaintiff CARL SON 10 12 13 14 15 16 17 18 20 21 22 23 24 25 26 27 28 2 PLAINTIFFS REPLY TO DEFENDANT CITY OF FRESNO'S OPPOSITION TO PLAINTIFFS MOTION FOR RELIEF MEMORANDUM OF POINTS AND AUTHORITIES 1. PlaintitPs Motion for Relief of the Involuntarv Dismissal of this Action Pursuant to C.C.P. 8473(bl Is Proner. The court may relieve a party or her legal representative from a judgment, dismissal, order, or other proceeding taken against her through her mistake inadvertence, surprise or excusable neglect. C.C.P. tj473(b). Because the law strongiy favors trial and disposition on the merits, any doubts in applying C.C.P. tj473 must be resolved in favor of the party seeking relief. Huh v. g'ang (2007) 158 Cal.App.4th 1406, 1419-1420. 2. PlaintifPs Counsel Has Submitted an "Affidavit of Fault" Pursuant to the 10 "Mandatorv" Provisions of C.C.P. 8 473(b1. Plaintiff Is Entitled to "Mandatorv" Relief Settinu Aside the Dismissal of this Action. In 1988, the Legislature added a "fourth sentence" to C.C.P. tj473(b) and provided that 13 when an application for relief is accompanied by an attorney affidavit of fault, the court shall vacate a default or dismissal entered against the attorney's client. Senate Bill 1975, 1987-1988, 15 Regular Session; Historical and Statutory Notes for C.C.P. tj473. It is well-settled that when an 16 application for relief under C.C.P. tj473(b) is accompanied by an attorney's sworn affidavit 17 attesting to his or her mistake, inadvertence, surprise, or neglect, the court is required to grant 18 relief, in other words relief is mandatory. Beeman v. Burling (1990) 216 Cal.App.3d 1586, 1604- 19 1605 snd fn. 14; Billings v. Health Plan ofAmerica (1990) 225 Cal.App.3d 250, 256; Rogalski v. 20 Nabers Cadillac (1992) 11 CaLApp.4th 816, 821, 21 The purpose of this law imposing mandatory relief is to relieve the innocent client of the 22 burden of the attorney's fault, to impose the burden on the erring attorney, and to avoid 23 precipitating more litigation in the form of malpractice suits. Berman, 216 Cal.App.3d at 1605, 24 fn. 14. Where an "attorney affidavit of fault" is filed, there is no requirement that the attorney's 25 mistake, inadvertence, etc. be excusable, i.e. relief must be granted even if resulting from 26 inexcusable neglect. Standard Microsystetns Corp. v. Winbond E1ectronics Corp. (2009) 179 27 Cal.App.4th 868, 897. The court is not concerned with the reasons for the attorney's wrongful 28 3 PLAINTIFFS REPLY TO DEFENDANT CITY OF FRESNO'S OPPOSITION TO PLAINTIFF'S MOTION FOR RELIEF conduct. Billings, 225 Cal.App.3d at 256. An attorney is responsible for supervising the work of legal assistants. The error of a support person is the "fault" of the attorney for purposes of C.C.P. $ 473(b) and relief is mandatory. Hu v. Fang (2002) 104 Cal.App.4th 61, 64. Here, Mr. Ghermezian has averred that he is responsible for supervising the work of his assistant. {Declaration Ghermezian, $ 14.) Mr. Ghermezian has also averred that his declaration is an "attorney declaration of fault." {Declaration Ghermezian, $ 15.) Plaintiff has met all of the criteria necessary for mandatory relief under C.C.P. tj473{b). 3. Defendant's Assertion that Plaintiff is Not Entitled to Relief Pursuant to C.C.P. 10 8473th) Is Without Merit. Defendant's claim that Plaintiff is not entitled, pursuant to C.C.P.tj473(b), to mandatory 12 relief from the involuntary dismissal of this case is predicated on just three cited cases: Huens v. 13 Tatum {1997) 52 Cal.App.4th 259 ("Huens "), Graham v. Beers (1994) 30 Cal.App.4th 1656 14 ("Graham") and Williams v. Los Angeles Unified School District (1994) 23 Cal.App.4th 84 15 (" Williams".) 16 Cases can be distinguishable due to different facts. People v. Thompson (2006) 38 Cal. 17 4'" 811, 820. Juxtaposition of the facts with this case with those in the foregoing three cases 18 demonstrates that none of the authority cited by Defendant supports its claim that PlaintifFs 19 Motion for Relief was, in any manner, improper. 20 Under the facts of this case, Defendant's reliance on Huens v. Tatum (1997) 52 21 Cal.App.4th 259 is improper. In Huens, the Court's decision began with one sentence which 22 shows it is not applicable here: 23 "In this case we hold that the 1992 amendment to Code of Civil Procedure section 473 (further unspecified statutory references are to this Code), which provides for 24 mandatory relief from 'dismissal'esulting from attorney mistake, neglect or inadvertence, does not apply to a voluntary dismissal entered pursuant to a settlement 25 agreement." Huens, 52 Cal.App.4th at 261. 26 In Huens, shortly after the settlement was executed and the defendants dismissed, 27 plaintifFs attorney discovered he had miscalculated the amount of insurance that was available. 28 4 PLAINTIFF'S REPLY TO DEFENDANT CITY OF FRESNO'S OPPOSITION TO PLAINTIFF'S MOTION FOR RELIEF PlaintifFs counsel moved to vacate the dismissal under C.C.P. tj473 motion to vacate the dismissal based on this "mistake". In affirming the denial of the motion for relief, the reviewing Court wrote: "A voluntary dismissal which typically follows a personal injury settlement is particularly unamenable to section 473 relief for another compelling reason. Settlements are contracts. To set them aside, one must present contractual grounds for rescission—fraud, mutual mistake, coercion, etc. Applying section 473 in the manner suggested here would constitute a serious intrusion into conuact law by allowing a party to escape the consequences of his agreement upon the mere affidavit of his attorney that he had made an inexcusable error concerning the applicable facts or law. It would also undermine our strong public policy in favor of settlements. We believe the Legislature did not intend such drastic consequences to flow from such a 'noncontroversial'mendment." Kuens, 52 Cal.App.4th at 264-265 (Citations omitted.) 10 Kuens does not support Defendant's position here. The dismissal from which Plaintiff seeks relief here was an involuntary dismissal, not a voluntary dismissal. 12 Similarly, Graham is readily distinguishable from this case. Therein, plaintiffs brought 13 an action for personal injuries which were caused by a vehicular accident. The case lay dormant 14 for three and one-half years until March 2, 1993, when the trial court issued and served an order 15 to show cause regarding the dismissal on its own motion pursuant to C.C.P.tj 583.410. The court 16 set the matter for hearing on March 26, 1993. On March 10, 1993, the Grahams filed an at-issue 17 memorandum. Graham, 30 Cal.App.4th at 1658. 18 Ultimately, the trial court ruled that "... the plaintiffs in this case have been inattentive to 19 this case for an unreasonable period of time, and the motion to dismiss is granted." The grounds 20 for the trial court's ruling included not only the lack of activity on the matter but also concessions 21 from plaintiff s counsel that "[he] assumed the matter would settle and made a conscious I 22 decision to relegate it to the 'back burner.' Graham, 30 Cal.App.4th at 1658-1659. 23 The ulal court also denied the Orahams'otion for relief pursuant to C.C.P. tj473 as well as their motion for reconsideration again asserting that the fundamental basis for its ruling was 25 that "plaintiffs'ounsel assumed the matter would settle and made a conscious decision to 26 relegate it to the 'back burner.' Graham, 30 Cal.App.4th at 1659-1660. 27 Here, there has been no such concession by plaintiffs counsel. Rather, Mr. Ghermezian 28 5 PLAINTIFF'S REPLY TO DEFENDANT CITY OF FRESNO'S OPPOSITION TO PLAINTIFFS MOTION FOR RELIEF has thoroughly explained what has happened and what lead to the dismissal of this action: turmoil in his personal life including the final, lengthy illness and death of his mother as well as certain members of his office staff who failed miserably in their duties. Lastly, 8'iiliams offers no succor for Defendant's position here. Like Gmham and unlike the present case, the judgment of dismissal in Williams was entered pursuant to C.C.P. 1)583.420: failure to serve the summons and complaint in two years. Having reviewed the facts of that matter and measuring them against the then criteria for dismissal for failure to prosecute an action pursuant to then California Rule of Court 373(e), the reviewing court ruled: "Under these circumstances, there was sufficient basis for the court to conclude that Williams's counsel was ordy interested in settling the case with minimal effort and 10 that their claim that they had to transfer the case to superior court before serving process was a pretext and 'afterthought alibi'f the type criticized by Putnam and Yao." IYilliams, 23 Cal.App.4th at 99. 12 Williams contended that her motion for relief from default should have been granted as a 13 matter of law under the 1992 amendment to C.C.P.tj473 that became effective January 1, 1993. This amendment included dismissals among the category of orders that a court was required to 15 vacate if an attorney submitted a sworn a6idavit of fault. Williams contends that the trial court 16 erred by applying the 'excusable neglect'tandard that was applicable prior to January 1, 1993, 17 and should have determined that relief was mandatory under the new statute. Williams, 23 18 Cal.App.4th at 104. 19 Rejecting Williams'rgument, the reviewing court noted: 20 "Unfortunately for Williams, the 1992 amendment to section 473 is not retroactive and does not apply to dismissals entered prior to its effective date. In Beeman 21 v. Burling (1990) 216 Cal.App.3d 1586, 1604-1607, the court held that the 1988 amendment to section 473, which required the court to vacate judgments caused by 22 attorney mistake, did not apply retroactively to defaults entered prior to the effective date of the statute. The court held that retroactive application would substantially affect the 23 rights of the parties and was impermissible under Aetna Cas. & Surety Co. v. Ind. Acc. Com. (1947) 30 Cal.2d 388 [182 P.2d 159]. The same principle applies to the 1992 24 amendment and precludes application of the amended statute to the instant dismissal. Therefore, the trial court properly applied the 'excusable neglect'tandard to the instant 25 case." g'i1liams, 23 Cal.App.4th at 104-105. 26 Additionally, Williams has waived the right to argue that the 1992 amendment governs 27 these proceedings by failing to raise it in the trial court. The motion before the trial court was 28 6 PLAINTIFF'S REPLY TO DEFENDANT CITY OF FRESNO'S OPPOSITION TO PLAINTIFFS MOTION FOR RELIEF expressly based upon the "excusable neglect" standard and the amended statute was never brought to the attention of the trial court. Williams, 23 Cal.App.4th at 105. Unlike Williams, the dismissal in this matter was predicated on C.C.P.it581(f)(2), not 4 C.C.P.ti583.420. 4. Althouah the Court Has Forbidden Plaintiff From Filius a Second Amended Comnlaint Without Meeting and Conferrinu With Defense CounseL a Pronosed Second Amended Comnlaint Is Attached Hereto. This court ruled that Plaintiff could not file an amended pleading until PlaintifF s counsel met and conferred with defense counsel. Thus, although Plaintiff had the ability to amend his 10 complaint (specific additional facts to be included in an amended pleading: that when Plaintiff was waiting to get on the bus, the bus driver had lowered the handicap ramp for another 12 passenger and had struck Plaintiff s knees), he was unable to do so because neither he nor his 13 associated attorney Bahman Mehdizadeh met and conferred with defense counsel. That is the 14 only reason that an amended pleading was not been filed with PlaintifF s initial papers. 15 Although the Plaintiff has been forbidden by the Court from filing a Second Amended 16 Complaint, Plaintiff has attached a Proposed Second Amended Complaint here. 17 5. Conclusion. 18 Plaintiff Defendant's Motion for Sanctions must be de 19 DATED: April 2, 2020 RAYMOND GH A PROFESSIONAL LAW CORPORA 20 21 BY RAYMO G EZIAN 22 Attorne for Plaint CA SON 23 24 25 27 28 7 PLAINTIFF'S REPLY TO DEFENDANT CITY OF FRESNO'S OPPOSITION TO PLAINTIFF'S MOTION FOR RELIEF PROOF OF SERVICE STATE OF CALIFORNIA ) ) ss. 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: 3435 Wilshire Boulevard, Suite 41800, Los Angeles, CA 90010 On Anril 2. 2020, I served the foregoing documents described as PLAINTIFF'S REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR RELIEF PURSUANT TO CCP tt473: MEMORANDUM OF POINTS AND AUTHORITIKS; [PROPOSEDj SECOND AMENDED COMPLAINT on all parties in this action by placing a true copy thereof enclosed in sealed envelopes addressed as follows: 10 SEK ATTACHED MAILING LIST 11 BY MAIL. I deposited such envelope(s) in the mail at Los Angeles, California. 12 The envelopes were mailed with postage thereon fully prepaid. I am "readily familiar" with the firm's practice of collection and processing correspondence for 13 mailing. Under that practice it would be deposited with U.S. Postal Service on the same day in the ordinary course of business. I am aware on motion of the party 14 served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in affidavit. 15 BY PERSONAL SERVICE. I caused such envelope(s) to be delivered by 16 hand to the oIIIces of the addressee(s). 17 (X) BY ELECTRONIC TRANSFER I caused all of the pages of the above entitled document to be sent to the recipients noted on the attached service list via 18 electronic transfer (E-mail) at the respective E-mail: travis.stokes(Rfresno.aov 19 0 BY FKDEX NEXT DAY AIR MAIL:As follows" I am "readily familiar" with the firm's practice of collection and processing correspondence by FEDEX 20 NEXT DAY AIR MAIL mailing. Under that practice it was deposited with the FEDEX NEXT DAY AIR MAIL service on that same day with proper postage 21 thereon fully prepaid at Los Angeles, California in the ordinary course of business. 22 Executed on April 2, 2020 at Los Angeles, California. 23 I declare under penalty of perjury under the laws of ornia that the above 24 is true and correct. 25 26 atnpler 27 28 MAILING LIST MASON v. FRESNO AREA EXPRESS. et al. Fresno County Superior Court Case No.: 18CECG03822 Travis R. Stokes, Esq. Attorneys for Defendant, CITY OP FRESNO CITY OF FRESNO 2600 Fresno Street Fresno, CA, 93721 Telephone: {559) 621-7500 Facsimile: (559) 488-1084 Email: travis.stokes& fresno.aov 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28