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Ignascio G. Camarena II (SBN 220582)
CAMARENA LAW OFFICE, A.P.C.
111 N. Market Street, Suite 300 Electronically Filed
San Jose, California 95113 by Superior Court of CA,
O: (408) 418-7180 County of Santa Clara,
F: (408) 516-9635
igc@camarenalawoffice.com
on 12/17/2019 1:43 PM
Reviewed By: J. Duong
Case #17CV318718
Attorneys for Plaintiff Envelope: 3782184
JULIE SCHMIDT-AKINS
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
10 JULIE SCHMIDT-AKINS,
Case No. 17CV318718
11 Plaintiff,
NOTICE OF MOTION AND MOTION
12 Vv. TO SET ASIDE DISMISSAL FOR
FAILURE TO SERVE; DECLARATION
13 LEVI OVERACKER, et al OF COUNSEL; MEMORANDUM OF
POINTS AND AUTHORITIES;
14 Defendants. PROPOSED ORDER
15 Hrg Date: March 3, 2020 at 9:00 a.m.
Dept. No.: 21
16 Hon. Thang N. Barrett
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TO THE COURT:
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PLEASE TAKE NOTICE THAT on March 3, 2020 at 9:00 a.m. in Department 21 of the above
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entitled court located at 161 N. First Street, San Jose, CA 95113 before the Honorable Thang N. Barrett,
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Plaintiff will move the Court for an order setting aside the dismissal of this action for failure to timely
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serve the defendant with the summons entered on April 22, 2019. The grounds for the motion are that
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dismissal was premature under California Code of Civil Procedure section 583.420(a)(1). Section
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583.420(a)(1) prohibits the Court from entering a dismissal for failure to serve the defendant until two
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years after action is commenced. Here, plaintiff commenced her action against defendant on November
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6, 2017. Moreover, plaintiff recently discovered that defendant moved to the State of Washington and
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filed for bankruptcy protection when a Notice of Discharge was filed with the Court on July 16, 2019,
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nearly three months after the Court dismissed this case. Plaintiff now intends only to pursue the limits
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NOTICE OF MOTION AND MOTION FOR ORDER SETTING ASIDE DISMISSAL FOR FAILURE TO SERVE
of defendant’s auto liability policy and the uninsured/underinsured motorist coverage on her own policy
if the case is re-opened.
This motion is based on the following declaration of counsel, declaration of plaintiff,
memorandum of points and authorities, and the Court’s records, evidence to be presented at the hearing,
if any, and oral argument
DATED: December 17, 2019 CAMARENA LAW OFFICE, A.P.C.
By: Ignascio G. Camarena II, Esq.
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NOTICE OF MOTION AND MOTION FOR ORDER SETTING ASIDE DISMISSAL FOR FAILURE TO SERVE
DECLARATION OF COUNSEL
I, Ignascio G. Camarena II, declare:
1 Tam an attorney duly licensed to practice law by the State of California and have been
retained to assist Plaintiff with seeking an order to set aside the dismissal for failure to serve defendant
entered by the Court on April 22, 2019.
2. Plaintiff learned of Defendant’s relocation to the State of Washington when she was
advised that a Notice of Discharge through Bankruptcy was filed by defendant on July 16, 2019.
3 Plaintiff retained new counsel shortly thereafter to assist her with this matter based on
this newly discovered evidence.
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4 My office has recently (within the last 30 days or so as of the date of filing of this
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motion) been in contact with the auto insurance carrier for defendant who advised that they will consider
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settling this claim only if the case is reinstated.
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5 Plaintiff is asking the Court to set aside the dismissal because California Code of Civil
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Procedure section 583.420(a)(1) prohibits the Court from dismissing an action for delay in prosecution
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for failure to serve the defendant unless service is not made within two years after the action is
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commenced against the defendant.
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6 In this case the action was commenced against the defendant on November 6, 2017 and
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dismissed by the Court on April 22, 2019, less than two years. The plaintiff did not know that the
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defendant re-located to the State of Washington before the case was dismissed and therefore should be
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allowed to pursue to claim upon this recently discovered evidence.
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I declare the forgoing is true and correct under penalty of perjury under the laws of the State of
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California. Executed this 17th day of December 2019.
MG
NGO
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Camarena
OOM SNS A
Ignascio G. Camarena II, Esq.
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NOTICE OF MOTION AND MOTION FOR ORDER SETTING ASIDE DISMISSAL FOR FAILURE TO SERVE
DECLARATION OF PLAINTIFF
I, Julie Schmidt, declare:
1 I am plaintiff in this action, formerly known as Julie Schmidt-Akins.
2. I learned of Defendant’s relocation to the State of Washington when I was advised that a
Notice of Discharge through Bankruptcy was filed in this case by defendant after July 16, 2019.
3 It is readily apparent that my former counsel did not do much, if anything, to attempt to
locate defendant in this case before the case was dismissed.
4 T retained new counsel recently to assist me with this matter one I found out where
defendant was living to assist me in solely pursuing the insurance proceeds available under defendant’s
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policy and my policy’s uninsured/underinsured coverage.
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I declare the forgoing is true and correct under penalty of perjury under the laws of the State of
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California. Executed this 17 day of December 2019.
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NOTICE OF MOTION AND MOTION FOR ORDER SETTING ASIDE DISMISSAL FOR FAILURE TO SERVE
MEMORANDUM OF POINTS AND AUTHORITIES
California Code of Civil Procedure section 583.420(a)(1) only allows the Court to dismiss an
action for failure to serve the defendant if plaintiff has not served the defendant within two years after
the action was commenced against the defendant. Cf. Williams v. Los Angeles Unified School District
(1994) 23 Cal. App.4in 84, 92 (holding that if the court dismisses a case for failure to serve after two
years from the date the action is commence, the dismissal may set aside the dismissal only on a showing
of abuse of discretion).
In this case, plaintiff commenced her action on November 6, 2017 and the Court dismissed the
case for failure to serve defendant on April 22, 2019, less than two years later. Therefore, the plaintiff
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respectfully requests that the Court set aside the dismissal to allow her to pursue the available insurance
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policy proceeds.
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Dated: December 17, 2019 Respectfully submitted,
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CAMARENA LAW OFFICE, A.P.C.
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By: Ignascio G. Camarena II, Esq.
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NOTICE OF MOTION AND MOTION FOR ORDER SETTING ASIDE DISMISSAL FOR FAILURE TO SERVE