arrow left
arrow right
  • Martinez v. Miller, et al.civil document preview
  • Martinez v. Miller, et al.civil document preview
  • Martinez v. Miller, et al.civil document preview
  • Martinez v. Miller, et al.civil document preview
  • Martinez v. Miller, et al.civil document preview
  • Martinez v. Miller, et al.civil document preview
  • Martinez v. Miller, et al.civil document preview
  • Martinez v. Miller, et al.civil document preview
						
                                

Preview

E-FILED 12/27/2019 2:07 PM Superior Court of California Joel D. Winter 1060 Fulton St., Ste. 812 County of Fresno Fresno, CA 93721 By: L Peterson, Deputy (559) 790-5462 Attorney for Plaintiff, Edgar Martinez IN AND FOR THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF FRESNO Edgar Martinez, Case No.: 18CECG04153 10 Plaintiff, NOTICE OF MOTION AND MOTION TO 1 SET ASIDE DISMISSAL, VS. MEMORANDUM OF POINTS AND 12 AUTHORITIES, DECLARATION OF Louis M. Miller and Grant D. Cox, JOEL D. WINTER 13 14 Defendant. 15 16 17 18 TO EACH PARTY AND TO COUNSEL OF RECORD FOR EACH PARTY: 19 PLEASE TAKE NOTICE that on February 5, 2020_, at 3:30pm, in Department 403 of 20 the above entitled court, Edgar Martinez, plaintiff herein will move to set aside the dismissal 21 entered December 2, 2019 for failure of plaintiff's attorney to appear at a hearing for an Order to 22 Show Cause why defendant had not been served on November 14, 2019 at 3:30pm in 23 Department 402. 24 This motion is be made pursuant to CCP § 473 and is based on one or more of the 25 following grounds: 26 1 Mistake 27 2. Inadvertence 28 MOTION FOR REQUEST TO SET ASIDE DISMISSAL ~ | 3. Excusable Neglect 3 This motion is based on the Memorandum of Points and Authorities and the Declaration of Joel 4 D. Winter which follow, and on the pleadings, records, and files in this action. DATED: L2/22/19 43 ol Oe LZ of Joel Winter At ey for Plaintiff MEMORANDUM OF POINTS AND AUTHORITIES 10 Code of Civil Procedure Section 473 (b) states in relevant part: ll The court may, upon any terms as may be just, relieve a party of his or her legal representative from a judgment, dismissal, 12 order, or other proceeding taken against him taken against him or 13 her through his or her mistake, inadvertence, surprise or excusable neglect. Application for this relief shall be accompanied by a copy 14 of the answer or other pleading proposed to be filed therein, .. . and 15 shall be made within a reasonable time, in no case exceeding six months, after the judgment, order or proceeding was taken. 16 In the present case, plaintiff's attorney did not attend a hearing re an Order to Show 17 18 Cause why defendants had not been served, and or failure of plaintiff to timely serve 19 defendants. Attorney inadvertently calendared the OSC hearing for this case, 18CECG04153 20 with two other hearings, 18CECG04229 and 19CECG01379, which were set for November 27, 21 2019. This was a mistake. Attorney has only four cases before the court—the fourth is set for 22 trail in March—and being a new attorney to this area of practice had not yet created any 23 24 failsafe to double check calendars for hearing dates, and so attorney failed to double check his 25 calendar to make certain of when each of these hearings were set and missed the hearing. 26 Since the previous CMC, Attorney had not however been idle. All efforts to find and 27 serve Defendant Miller were being made. Two skip traces were performed, and once potential 28 MOTION FOR REQUEST TO SET ASIDE DISMISSAL ~ 2 residences had been identified, attempts to serve began immediately. When multiple attempts to serve failed, Attorney prepared and filed an Application and proposed Order to Publish on Friday, November 15, 2019 thinking these would be in preparation of a mistakenly calendared hearing for this case on November 27, 2019. Word came from the process server in Virginia Beach over that same weekend and the proof was filed Sunday, November 17, 2019. An answer was filed on November 20, 2019 Attorney, Joel D. Winter, did discover his error before the 27" when preparing CMC statements for his hearings set for November 27, 2019. Upon discovery of this error, Attorney 10 reviewed the online docket to see what action the court had taken after the hearing on the 14" ul but no minutes were recorded until December 2, 2019 several days after the November 27" 12 13 hearings. Attorney received notice from the court on December 5, 2019 of the dismissal. 14 Attorney was further delayed in filing of this request to set aside the dismissal when 15 upon calling the Law in Motion calendaring clerk, it was suggested that perhaps this action 16 could be submitted to the court as a stipulation. Whereupon, Attorney called opposing counsel 17 to suggest such coordinated action. A week later, via regular mail, opposing counsel informed 18 19 Attorney by letter that such action on her part would not be in her client’s best interest. 20 As soon therefore as possible, given the holiday press, this motion was researched, 21 prepared, and filed. 22 Though liability has not been admitted by defendant or his insurers, liability regarding 23 the cause of the injuries suffered by Plaintiff have not been at issue in the negotiations for 24 25 settlement of Plaintiff's claim. Prior to filing suit an offer of $40,000 had been extended and 26 rejected, and that after Plaintiff agreed to accept $46,000, if offered, on medical bills of over 27 28 MOTION FOR REQUEST TO SET ASIDE DISMISSAL - 3 $22,000. Only the cost of medical services relative to the injuries has been the point of contention during these negotiations. Attorney Joel D. Winter acknowledges his mistake of inadvertently entering the wrong date for the OSC hearing and neglect in not better managing his case calendar or periodically reviewing his calendar for accuracy. The case was dismissed without prejudice seeming to indicate a willingness to allow this case to proceed if the defect in service could be resolved. But, the statute of limitations in this case expired on December 12, 2018, so refiling is not an option. 10 “The policy of the law is to have every case tried on its merits and that policy views 11 with disfavor a party who, regardless of the merits, attempts to take advantage of the mistake, 12 13 inadvertence, or neglect of his adversary. This policy is so strong that “any doubts in applying 14 section 473 must be resolved in favor of the party seeking relief...” Elston v. City of Turlock 15 (1985) 38 Cal.3d 227, 233; Slusher v. Durrer (1977) 69 Cal.App. 3d 747, 753. “An order 16 denying relief runs counter to the law's policy encouraging trial and disposition on the merits. 17 It is subject to closer appellate scrutiny than one granting relief, and doubts will be resolved in 18 19 favor of the party attempting to get to trial.” (Daley v. County of Butte, 227 Cal.App.2d 380, 20 389, 38 Cal.Rptr. 693, 699.) 21 The facts in the present case are not unfamiliar. In the case of Hagenkamp v. Equitable Life 22 Assurance Society, 29 Cal.App. 713, 156 P. 520 “the attorney mistakenly entered a trial date 23 on his calendar as August 8 instead of August 7 and missed the trial.” In that case the motion to 24 25 set aside a default was denied by the trial court judge and then overturned by the appellate 26 court. In that case as in this one it was the attorney’s own mistake rather than an employee. 27 However, the appeals court opinion went on to say, “Where an attorney states that he was 28 MOTION FOR REQUEST TO SET ASIDE DISMISSAL - 4 unaware of his duty to appear or answer because his employees misplaced papers or misinformed him as to the relevant date, relief is routinely granted.” (See, e.g., Downing v. Klondike Min. etc. Co. (1913) 165 Cal. 786, 788 [134 P. 970]; Toon v. Pickwick Stages, Inc. (1924) 66 Cal.App. 450, 452-455 [226 P. 628]. It seems the operative language that is applicable here is “unaware of his duty to appear”, even though the original error was committed by the attorney rather than a staff member. My neglect in establishing a calendaring procedure which would have caught timely this error has also been considered by the courts. As cited in the opinion for Nilsson v. City of 10 Los Angeles, 249 Cal.App.2d 976, Plaintiffs’ counsel stated that because his office was 11 shorthanded, the request for admissions "became misplaced and [he] did not become aware of 12 13 [it] until [it was] overdue." Although counsel's affidavit could have been more explicit, his 14 "failure to show an established office calendaring procedure was not a critical omission." 15 Prior to receiving notice of dismissal, negotiations had resumed with counsel for the 16 defense. Plaintiff believes that a settlement can be reached, obviating a need for trial. For the 17 reasons stated in this Memorandum and in the attached Declaration, the court should set aside 18 19 the dismissal and allow the parties to continue their negotiations and or proceed to trial. If the 20 court finds that some failure by counsel in this case needs to be addressed, he asks that the 21 court consider some form of discipline or sanction for attorney for wasting the court’s time and 22 resources rather than deny Plaintiffs request to set aside the dismissal. 23 24 25 DECLARATION OF ATTORNEY, JOEL D. WINTER 26 I, Joel D. Winter, declare: 27 28 MOTION FOR REQUEST TO SET ASIDE DISMISSAL ~ 5 I am the plaintiff's attorney. I have personal knowledge of the matters discussed below and, if called as a witness, I could competently testify to them. I did not appear at the Order to Show Cause re Failure to Serve Defendant hearing on November 14, 2019 for the following reasons: Jam still relatively new at the practice of personal injury law and had only four cases filed at the time the hearing for this case as set. One case is set for trial in March. Two of those hearings, 18CECG04229 and 19CECG01379, were set for November 27, 2019 in department 402 at 3:30pm. I entered those two cases and the present case on my calendar for November 10 27, 2019 instead of two for the 27" and one for the 14". The cause of these all being entered i for the same day on my calendar is unclear as I am a staff of one. I do not recall the 12 13 circumstances of entering these hearings in my calendar, but I do remember that hearings for 14 these three cases have been on the same day or within days of each other in the past year. I 15 only know that I was directing all of my attention to preparing for the hearing in this case as if 16 it was set for November 27, 2019. I describe those activities below. For this reason I did not 17 appear when required by the court to explain why service on defendants had not yet been 18 19 accomplished. 20 Thad not yet served the defendant Louis M. Miller for the following reasons: 21 Many attempts had been made to serve defendant Miller in Fresno. A final attempt here left the 22 lawsuit with defendant’s mother. At that time she stated that her son had left the state. Proof of 23 that service was filed and challenged and ultimately quashed. I ordered a skip trace to be 24 25 performed for the Virginia Beach area where defendant was purported to have set up residence. 26 That skip trace turned up negative. Two months or so later, I ordered another skip trace which 27 turned up two possible addresses. After ] engaged the services of a local process server, they 28 MOTION FOR REQUEST TO SET ASIDE DISMISSAL - 6 made multiple attempts over several weeks at different times of day with no success. Consequently, on Friday, November 15, 2019, I prepared and filed an Application and proposed Order to Publish, thinking these would be in preparation of an assumed hearing for this case on the 27". Over that same weekend word came via email that service had been effected. I filed the Proof of Service immediately on Sunday, November 17, 2019. Defendant Miller filed an answer on November 20, 2019. Action taken since discovery of the mistake: I received notice of the dismissal by regular mail on December 7, 2019. 10 After doing some preliminary investigation and research on the matter, | spoke with I Law and Motion calendaring on December 15, 2019 and then spoke with opposing counsel, 12 13 Kristina Garabedian, on December 16, 2019 regarding the possibility of stipulation and 14 received her letter on December 19 or 20, 2019. 15 I researched the law prepared this motion off and on as time permitted through the 16 week of the Christmas holiday, and filed it on December 27, 2019. 17 18 19 J declare under penalty of perjury under the laws of the State of California that the foregoing is 20 true and correct. 21 22 DATED: (aJa2hy4 Joel cl Apt inter 23 24 25 26 27 28 MOTION FOR REQUEST TO SET ASIDE DISMISSAL - 7