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1 CHRISTINA M. DENNING, ESQ. (Bar No. 211137)
denningc@denningmoores.com
2 AARON L. STEIGERWALT, ESQ. (Bar No. 323231)
steigerwalta@denningmoores.com
3 DENNING MOORES, APC
12526 High Bluff Drive, Ste. 300
4 San Diego, CA 92130
Tel: (858) 356-5610
5 Fax: (858) 356-5508
6 Attorneys for Plaintiff,
SUSANNA VADAS
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SANTA BARBARA
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11 SUSANNA VADAS, an individual Case No.: 23CV02583
12 Plaintiff, MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
13 v. PLAINTIFF’S EX PARTE
APPLICATION FOR AN ORDER FOR
14 BRENT J. KOVACS, M.D. and DOES 1-5, RELIEF FROM DISMISSAL, OR IN THE
Inclusive. ALTERNATIVE, FOR AN ORDER
15 SHORTENING TIME ON A NOTICED
Defendants. MOTION REGARDING SAME
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Date: January 2, 2024
17 Time: 8:15 a.m.
18 Judge: Hon. Thomas P. Anderle
Dept.: 3
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Complaint Filed: June 15, 2023
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21 I. INTRODUCTION
22 Plaintiff, Susanna Vadas, seeks an order for relief from dismissal, or in the alternative,
23 for an order shortening time on a noticed motion regarding same.
24 II. PERTINENT FACTS
25 Denning Moores APC was recently retained by Plaintiff in the captioned litigation.
26 (Declaration of Christina Denning (“Denning Dec.”), ¶ 2.) Plaintiff filed a substitution of
27 attorney on December 4, 2023. (Denning Dec., ¶ 2.) Plaintiff’s counsel then took immediate
28 steps to serve Defendant Brent J. Kovacs, M.D., who was personally served on December 8,
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S EX
PARTE APPLICATION
1 2023. (Denning Dec., ¶ 3.) Plaintiff filed a Proof of Personal Service (“POS”) on December
2 20, 2023. A true and correct copy of the POS is attached to Ms. Denning’s declaration as Exhibit
3 “1.” (Denning Dec., ¶ 3.)
4 Ms. Denning spoke with defense counsel, Dana Garber, Esq., on December 20, 2023,
5 who informed Ms. Denning she was hired to represent Defendant. (Denning Dec., ¶ 4.) At
6 defense counsel’s request, Ms. Denning granted a 30-day extension for Defendant to file a
7 responsive pleading, which is now due on January 19, 2024. (Denning Dec., ¶ 4.)
8 Plaintiff’s counsel was unaware there was a hearing on December 20, 2023, regarding
9 dismissal of the case for failure to serve Defendant. (Denning Dec., ¶ 5.)
10 An order for relief from dismissal will not prejudice Defendant, as Defendant was just
11 recently served and has counsel who intends to file a responsive pleading on or before January
12 19, 2024. (Denning Dec., ¶ 6.)
13 Before 10:00 a.m. on December 29, 2023, Plaintiff’s counsel notified opposing counsel
14 of the date, time, manner and location of the ex parte hearing set for January 2, 2024 at 8:15 a.m.
15 A true and correct copy of the email giving notice of the ex parte is attached to Ms. Denning’s
16 Declaration as Exhibit “2.” (Denning Dec., ¶ 7.) Given Ms. Denning’s recent conversation with
17 Ms. Garber, she does not anticipate an opposition to this application. (Denning Dec., ¶ 7.)
18 III. THE COURT HAS AUTHORITY TO GRANT THE REQUESTED RELIEF
19 An applicant must make an affirmative factual showing in a declaration containing
20 competent testimony based on personal knowledge of irreparable harm, immediate danger, or
21 any other statutory basis (here, Code of Civil Procedure section 473, subdivision (b)) for
22 granting relief ex parte. (California Rules of Court, rule 3.1202(c).) Code of Civil Procedure
23 section 1005 provides that "[t]he court, or a judge thereof, may prescribe a shorter time" than
24 otherwise prescribed in Section 1005.
25 “The court may, upon any terms as may be just, relieve a party or his or her legal
26 representative from a judgment, dismissal, order, or other proceeding taken against him or her
27 through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this
28 relief shall be accompanied by a copy of the…pleading proposed to be filed therein…, and shall
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S EX
PARTE APPLICATION
1 be made within a reasonable time, in no case exceeding six months, after the judgment,
2 dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subdivision (b).)
3 “Notwithstanding any other requirements of this section, the court shall, whenever an
4 application for relief is made no more than six months after entry of judgment, is in proper form,
5 and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence,
6 surprise, or neglect, vacate any…resulting default judgment or dismissal entered against his or
7 her client, unless the court finds that the default or dismissal was not in fact caused by the
8 attorney’s mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc., § 473, subdivision (b).)
9 In considering mistake, surprise or excusable neglect, the court has broad discretion
10 under section 473 and such discretion is liberally construed so that lawsuits would be determined
11 upon their merits, and so as to prevent one party from taking advantage of the other’s excusable
12 mistakes or errors. (Riskin v. Towers (1944) 24 Cal.2d 274.)
13 To obtain mandatory relief under Section 473, plaintiff’s counsel need not show that the
14 mistake, inadvertence, surprise or neglect was excusable—in fact, no reason need be given for
15 the existence of these circumstances, mere attestation that such a circumstance did exist is
16 sufficient to obtain relief. (Graham v. Beers (1994) 30 Cal.App.4th 1656, 1660.)
17 Defendant was served on December 8, 2023. Attached as Exhibit “1” to the Declaration
18 of Christina Denning is a copy of the proof of service filed on December 20, 2023. The alleged
19 failure to serve defendant was the basis for this Court’s dismissal of this action on December
20 20, 2023. Had Ms. Denning been aware of the hearing on December 20, 2023, she would have
21 appeared and represented to this Court that Defendant had been served and a POS was filed.
22 Pursuant to Code of Civil Procedure section 473, subdivision (b), and as set forth in the
23 Declaration of Christina Denning, the granting of ex parte relief from dismissal is necessary.
24 In the alternative, Plaintiff requests an order shortening time on a motion for relief from
25 dismissal. California Rules of Court, rule 3.1300(b) states, [t]he court, on its own motion or on
26 application for an order shortening time supported by a declaration showing good cause, may
27 prescribe shorter times for the filing and service of papers than the time specified in Code of
28 Civil Procedure section 1005.” As stated in the Notice and Declaration of Christina Denning
3
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S EX
PARTE APPLICATION
1 good cause exists to shorten time for the hearing of Plaintiff's Motion, as Code of Civil Procedure
2 section 473 requires the motion to be “made within a reasonable time, in no case exceeding six
3 months, after the judgment, dismissal, order, or proceeding was taken.” (Code of Civil Procedure
4 section 473.)
5 V. COUNSEL HAS FULLY COMPLIED WITH CALIFORNIA RULES OF
6 COURT, RULES 3.1203 AND 3.1204
7 A party seeking an ex parte order must notify all parties no later than 10:00 a.m. the court
8 day before the ex parte appearance, absent a showing of exceptional circumstances that justify
9 a shorter time for notice. (California Rules of Court, rule 3.1203(a).)
10 An ex parte application must be accompanied by a declaration regarding notice stating:
11 (1) The notice given, including the date, time, manner, and name of the party
12 informed, the relief sought, any response, and whether opposition is expected and
13 that, within the applicable time under rule 3.1203, the applicant informed the
14 opposing party where and when the application would be made;
15 (2) That the applicant in good faith attempted to inform the opposing party but was
16 unable to do so, specifying the efforts made to inform the opposing party; or
17 (3) That, for reasons specified, the applicant should not be required to inform the
18 opposing party.
19 California Rules of Court, rule 3.1204(b).
20 As stated in the Declaration of Christina M. Denning and as set forth in Exhibit “2” to
21 the Declaration, counsel has duly complied with the notice requirements of California Rules of
22 Court, rule 3.1203(a) and California Rules of Court, rule 3.1204(b).
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S EX
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1 VI. CONCLUSION
2 Based upon the foregoing, Plaintiff respectfully requests an order for relief from
3 dismissal. In the alternative, Plaintiff requests an order shortening time on a motion for relief
4 from dismissal.
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6 DATED: December 29, 2023 DENNING MOORES, APC
7
By: ________________________________
8 Christina M. Denning, Esq.
Aaron L. Steigerwalt, Esq.
9 Attorneys for Plaintiff
SUSANNA VADAS
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S EX
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1 CHRISTINA M. DENNING, ESQ. (Bar No. 211137) denningc@denningmoores.com 2 AARON L. STEIGERWALT, ESQ. (Bar No. 323231) steigerwalta@denningmoores.com 3 DENNING MOORES, APC 12526 High Bluff Drive, Ste. 300 4 San Diego, CA 92130 Tel: (858) 356-5610 5 Fax: (858) 356-5508 6 Attorneys for Plaintiff, SUSANNA VADAS 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SANTA BARBARA 10 11 SUSANNA VADAS, an individual Case No.: 23CV02583 12 Plaintiff, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 13 v. PLAINTIFF’S EX PARTE APPLICATION FOR AN ORDER FOR 14 BRENT J. KOVACS, M.D. and DOES 1-5, RELIEF FROM DISMISSAL, OR IN THE Inclusive. ALTERNATIVE, FOR AN ORDER 15 SHORTENING TIME ON A NOTICED Defendants. MOTION REGARDING SAME 16 Date: January 2, 2024 17 Time: 8:15 a.m. 18 Judge: Hon. Thomas P. Anderle Dept.: 3 19 Complaint Filed: June 15, 2023 20 21 I. INTRODUCTION 22 Plaintiff, Susanna Vadas, seeks an order for relief from dismissal, or in the alternative, 23 for an order shortening time on a noticed motion regarding same. 24 II. PERTINENT FACTS 25 Denning Moores APC was recently retained by Plaintiff in the captioned litigation. 26 (Declaration of Christina Denning (“Denning Dec.”), ¶ 2.) Plaintiff filed a substitution of 27 attorney on December 4, 2023. (Denning Dec., ¶ 2.) Plaintiff’s counsel then took immediate 28 steps to serve Defendant Brent J. Kovacs, M.D., who was personally served on December 8, 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S EX PARTE APPLICATION 1 2023. (Denning Dec., ¶ 3.) Plaintiff filed a Proof of Personal Service (“POS”) on December 2 20, 2023. A true and correct copy of the POS is attached to Ms. Denning’s declaration as Exhibit 3 “1.” (Denning Dec., ¶ 3.) 4 Ms. Denning spoke with defense counsel, Dana Garber, Esq., on December 20, 2023, 5 who informed Ms. Denning she was hired to represent Defendant. (Denning Dec., ¶ 4.) At 6 defense counsel’s request, Ms. Denning granted a 30-day extension for Defendant to file a 7 responsive pleading, which is now due on January 19, 2024. (Denning Dec., ¶ 4.) 8 Plaintiff’s counsel was unaware there was a hearing on December 20, 2023, regarding 9 dismissal of the case for failure to serve Defendant. (Denning Dec., ¶ 5.) 10 An order for relief from dismissal will not prejudice Defendant, as Defendant was just 11 recently served and has counsel who intends to file a responsive pleading on or before January 12 19, 2024. (Denning Dec., ¶ 6.) 13 Before 10:00 a.m. on December 29, 2023, Plaintiff’s counsel notified opposing counsel 14 of the date, time, manner and location of the ex parte hearing set for January 2, 2024 at 8:15 a.m. 15 A true and correct copy of the email giving notice of the ex parte is attached to Ms. Denning’s 16 Declaration as Exhibit “2.” (Denning Dec., ¶ 7.) Given Ms. Denning’s recent conversation with 17 Ms. Garber, she does not anticipate an opposition to this application. (Denning Dec., ¶ 7.) 18 III. THE COURT HAS AUTHORITY TO GRANT THE REQUESTED RELIEF 19 An applicant must make an affirmative factual showing in a declaration containing 20 competent testimony based on personal knowledge of irreparable harm, immediate danger, or 21 any other statutory basis (here, Code of Civil Procedure section 473, subdivision (b)) for 22 granting relief ex parte. (California Rules of Court, rule 3.1202(c).) Code of Civil Procedure 23 section 1005 provides that "[t]he court, or a judge thereof, may prescribe a shorter time" than 24 otherwise prescribed in Section 1005. 25 “The court may, upon any terms as may be just, relieve a party or his or her legal 26 representative from a judgment, dismissal, order, or other proceeding taken against him or her 27 through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this 28 relief shall be accompanied by a copy of the…pleading proposed to be filed therein…, and shall 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S EX PARTE APPLICATION 1 be made within a reasonable time, in no case exceeding six months, after the judgment, 2 dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subdivision (b).) 3 “Notwithstanding any other requirements of this section, the court shall, whenever an 4 application for relief is made no more than six months after entry of judgment, is in proper form, 5 and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, 6 surprise, or neglect, vacate any…resulting default judgment or dismissal entered against his or 7 her client, unless the court finds that the default or dismissal was not in fact caused by the 8 attorney’s mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc., § 473, subdivision (b).) 9 In considering mistake, surprise or excusable neglect, the court has broad discretion 10 under section 473 and such discretion is liberally construed so that lawsuits would be determined 11 upon their merits, and so as to prevent one party from taking advantage of the other’s excusable 12 mistakes or errors. (Riskin v. Towers (1944) 24 Cal.2d 274.) 13 To obtain mandatory relief under Section 473, plaintiff’s counsel need not show that the 14 mistake, inadvertence, surprise or neglect was excusable—in fact, no reason need be given for 15 the existence of these circumstances, mere attestation that such a circumstance did exist is 16 sufficient to obtain relief. (Graham v. Beers (1994) 30 Cal.App.4th 1656, 1660.) 17 Defendant was served on December 8, 2023. Attached as Exhibit “1” to the Declaration 18 of Christina Denning is a copy of the proof of service filed on December 20, 2023. The alleged 19 failure to serve defendant was the basis for this Court’s dismissal of this action on December 20 20, 2023. Had Ms. Denning been aware of the hearing on December 20, 2023, she would have 21 appeared and represented to this Court that Defendant had been served and a POS was filed. 22 Pursuant to Code of Civil Procedure section 473, subdivision (b), and as set forth in the 23 Declaration of Christina Denning, the granting of ex parte relief from dismissal is necessary. 24 In the alternative, Plaintiff requests an order shortening time on a motion for relief from 25 dismissal. California Rules of Court, rule 3.1300(b) states, [t]he court, on its own motion or on 26 application for an order shortening time supported by a declaration showing good cause, may 27 prescribe shorter times for the filing and service of papers than the time specified in Code of 28 Civil Procedure section 1005.” As stated in the Notice and Declaration of Christina Denning 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S EX PARTE APPLICATION 1 good cause exists to shorten time for the hearing of Plaintiff's Motion, as Code of Civil Procedure 2 section 473 requires the motion to be “made within a reasonable time, in no case exceeding six 3 months, after the judgment, dismissal, order, or proceeding was taken.” (Code of Civil Procedure 4 section 473.) 5 V. COUNSEL HAS FULLY COMPLIED WITH CALIFORNIA RULES OF 6 COURT, RULES 3.1203 AND 3.1204 7 A party seeking an ex parte order must notify all parties no later than 10:00 a.m. the court 8 day before the ex parte appearance, absent a showing of exceptional circumstances that justify 9 a shorter time for notice. (California Rules of Court, rule 3.1203(a).) 10 An ex parte application must be accompanied by a declaration regarding notice stating: 11 (1) The notice given, including the date, time, manner, and name of the party 12 informed, the relief sought, any response, and whether opposition is expected and 13 that, within the applicable time under rule 3.1203, the applicant informed the 14 opposing party where and when the application would be made; 15 (2) That the applicant in good faith attempted to inform the opposing party but was 16 unable to do so, specifying the efforts made to inform the opposing party; or 17 (3) That, for reasons specified, the applicant should not be required to inform the 18 opposing party. 19 California Rules of Court, rule 3.1204(b). 20 As stated in the Declaration of Christina M. Denning and as set forth in Exhibit “2” to 21 the Declaration, counsel has duly complied with the notice requirements of California Rules of 22 Court, rule 3.1203(a) and California Rules of Court, rule 3.1204(b). 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S EX PARTE APPLICATION 1 VI. CONCLUSION 2 Based upon the foregoing, Plaintiff respectfully requests an order for relief from 3 dismissal. In the alternative, Plaintiff requests an order shortening time on a motion for relief 4 from dismissal. 5 6 DATED: December 29, 2023 DENNING MOORES, APC 7 By: ________________________________ 8 Christina M. Denning, Esq. Aaron L. Steigerwalt, Esq. 9 Attorneys for Plaintiff SUSANNA VADAS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S EX PARTE APPLICATION