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
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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
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Defendant.
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TO EACH PARTY AND TO COUNSEL OF RECORD FOR EACH PARTY:
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PLEASE TAKE NOTICE that on February 5, 2020_, at 3:30pm, in Department 403 of
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the above entitled court, Edgar Martinez, plaintiff herein will move to set aside the dismissal
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entered December 2, 2019 for failure of plaintiff's attorney to appear at a hearing for an Order to
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Show Cause why defendant had not been served on November 14, 2019 at 3:30pm in
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Department 402.
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This motion is be made pursuant to CCP § 473 and is based on one or more of the
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following grounds:
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1 Mistake
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2. Inadvertence
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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,
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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.
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In the present case, plaintiff's attorney did not attend a hearing re an Order to Show
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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
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with two other hearings, 18CECG04229 and 19CECG01379, which were set for November 27,
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2019. This was a mistake. Attorney has only four cases before the court—the fourth is set for
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trail in March—and being a new attorney to this area of practice had not yet created any
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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.
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Since the previous CMC, Attorney had not however been idle. All efforts to find and
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serve Defendant Miller were being made. Two skip traces were performed, and once potential
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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
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reviewed the online docket to see what action the court had taken after the hearing on the 14"
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but no minutes were recorded until December 2, 2019 several days after the November 27"
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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
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could be submitted to the court as a stipulation. Whereupon, Attorney called opposing counsel
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to suggest such coordinated action. A week later, via regular mail, opposing counsel informed
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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,
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prepared, and filed.
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Though liability has not been admitted by defendant or his insurers, liability regarding
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the cause of the injuries suffered by Plaintiff have not been at issue in the negotiations for
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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
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$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.
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“The policy of the law is to have every case tried on its merits and that policy views
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with disfavor a party who, regardless of the merits, attempts to take advantage of the mistake,
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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
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(1985) 38 Cal.3d 227, 233; Slusher v. Durrer (1977) 69 Cal.App. 3d 747, 753. “An order
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denying relief runs counter to the law's policy encouraging trial and disposition on the merits.
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It is subject to closer appellate scrutiny than one granting relief, and doubts will be resolved in
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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.)
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The facts in the present case are not unfamiliar. In the case of Hagenkamp v. Equitable Life
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Assurance Society, 29 Cal.App. 713, 156 P. 520 “the attorney mistakenly entered a trial date
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on his calendar as August 8 instead of August 7 and missed the trial.” In that case the motion to
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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.
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However, the appeals court opinion went on to say, “Where an attorney states that he was
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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
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Los Angeles, 249 Cal.App.2d 976, Plaintiffs’ counsel stated that because his office was
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shorthanded, the request for admissions "became misplaced and [he] did not become aware of
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[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."
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Prior to receiving notice of dismissal, negotiations had resumed with counsel for the
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defense. Plaintiff believes that a settlement can be reached, obviating a need for trial. For the
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reasons stated in this Memorandum and in the attached Declaration, the court should set aside
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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
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court consider some form of discipline or sanction for attorney for wasting the court’s time and
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resources rather than deny Plaintiffs request to set aside the dismissal.
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25 DECLARATION OF ATTORNEY, JOEL D. WINTER
26 I, Joel D. Winter, declare:
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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
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27, 2019 instead of two for the 27" and one for the 14". The cause of these all being entered
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for the same day on my calendar is unclear as I am a staff of one. I do not recall the
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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
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only know that I was directing all of my attention to preparing for the hearing in this case as if
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it was set for November 27, 2019. I describe those activities below. For this reason I did not
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appear when required by the court to explain why service on defendants had not yet been
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19 accomplished.
20 Thad not yet served the defendant Louis M. Miller for the following reasons:
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Many attempts had been made to serve defendant Miller in Fresno. A final attempt here left the
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lawsuit with defendant’s mother. At that time she stated that her son had left the state. Proof of
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that service was filed and challenged and ultimately quashed. I ordered a skip trace to be
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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
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turned up two possible addresses. After ] engaged the services of a local process server, they
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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.
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After doing some preliminary investigation and research on the matter, | spoke with
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Law and Motion calendaring on December 15, 2019 and then spoke with opposing counsel,
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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
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week of the Christmas holiday, and filed it on December 27, 2019.
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19 J declare under penalty of perjury under the laws of the State of California that the foregoing is
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22 DATED: (aJa2hy4
Joel
cl Apt
inter
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