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  • Julie Schmidt-Akins vs Levi Overacker Auto Unlimited (22)  document preview
  • Julie Schmidt-Akins vs Levi Overacker Auto Unlimited (22)  document preview
  • Julie Schmidt-Akins vs Levi Overacker Auto Unlimited (22)  document preview
  • Julie Schmidt-Akins vs Levi Overacker Auto Unlimited (22)  document preview
  • Julie Schmidt-Akins vs Levi Overacker Auto Unlimited (22)  document preview
  • Julie Schmidt-Akins vs Levi Overacker Auto Unlimited (22)  document preview
  • Julie Schmidt-Akins vs Levi Overacker Auto Unlimited (22)  document preview
  • Julie Schmidt-Akins vs Levi Overacker Auto Unlimited (22)  document preview
						
                                

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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 17 TO THE COURT: 18 PLEASE TAKE NOTICE THAT on March 3, 2020 at 9:00 a.m. in Department 21 of the above 19 entitled court located at 161 N. First Street, San Jose, CA 95113 before the Honorable Thang N. Barrett, 20 Plaintiff will move the Court for an order setting aside the dismissal of this action for failure to timely 21 serve the defendant with the summons entered on April 22, 2019. The grounds for the motion are that 22 dismissal was premature under California Code of Civil Procedure section 583.420(a)(1). Section 23 583.420(a)(1) prohibits the Court from entering a dismissal for failure to serve the defendant until two 24 years after action is commenced. Here, plaintiff commenced her action against defendant on November 25 6, 2017. Moreover, plaintiff recently discovered that defendant moved to the State of Washington and 26 filed for bankruptcy protection when a Notice of Discharge was filed with the Court on July 16, 2019, 27 nearly three months after the Court dismissed this case. Plaintiff now intends only to pursue the limits 28 ae 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. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- 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. 10 4 My office has recently (within the last 30 days or so as of the date of filing of this 11 motion) been in contact with the auto insurance carrier for defendant who advised that they will consider 12 settling this claim only if the case is reinstated. 13 5 Plaintiff is asking the Court to set aside the dismissal because California Code of Civil 14 Procedure section 583.420(a)(1) prohibits the Court from dismissing an action for delay in prosecution 15 for failure to serve the defendant unless service is not made within two years after the action is 16 commenced against the defendant. 17 6 In this case the action was commenced against the defendant on November 6, 2017 and 18 dismissed by the Court on April 22, 2019, less than two years. The plaintiff did not know that the 19 defendant re-located to the State of Washington before the case was dismissed and therefore should be 20 allowed to pursue to claim upon this recently discovered evidence. 21 I declare the forgoing is true and correct under penalty of perjury under the laws of the State of 22 23 California. Executed this 17th day of December 2019. MG NGO 7 Camarena OOM SNS A Ignascio G. Camarena II, Esq. 24 25 26 27 28 -3- 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 10 policy and my policy’s uninsured/underinsured coverage. 11 I declare the forgoing is true and correct under penalty of perjury under the laws of the State of 12 California. Executed this 17 day of December 2019. 13 a 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- 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 10 respectfully requests that the Court set aside the dismissal to allow her to pursue the available insurance 11 policy proceeds. 12 Dated: December 17, 2019 Respectfully submitted, 13 CAMARENA LAW OFFICE, A.P.C. 14 15 By: Ignascio G. Camarena II, Esq. 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- NOTICE OF MOTION AND MOTION FOR ORDER SETTING ASIDE DISMISSAL FOR FAILURE TO SERVE