Judge: Elaine Lu, Case: 21STCP00495, Date: 2023-04-28 Tentative Ruling





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other parties in the same email) no later than 7:30 am on
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tentative and elect not to appear at the hearing, the opposing party may
nevertheless appear at the hearing and argue the motion, and the Court may
decide not to adopt the tentative ruling.




2. 
For any motion where no parties submit to the tentative ruling in
advance, and no parties appear at the motion hearing, the Court may elect to
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4. IN ORDER TO IMPLEMENT
PHYSICAL DISTANCING GOING FORWARD AND UNTIL FURTHER NOTICE, THE COURT STRONGLY
ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR TELEPHONICALLY FOR NON-TRIAL
AND NON-EVIDENTIARY MATTERS.  Thus, until further
notice, Department 26 strongly encourages telephonic appearances for motion
hearings that do not require the presentation of live testimony.




 






Case Number: 21STCP00495    Hearing Date: April 28, 2023    Dept: 26

At the hearing on April 28, 2023, Plaintiff conceded that there has never been a summons issued for defendants Guadalupe Rosas and Cristina Rosas in this action, and accordingly, defendants Guadalupe Rosas and Cristina Rosas were never properly served with the operative First Amended Complaint and Summons.

 

At the outset of the hearing on April 28, 2023, the Court provided all parties notice in open court that it is inclined to: (1) take judicial notice on its own motion that there has never been a summons issued for defendants Guadalupe Rosas and Cristina Rosas in this action, and (2) treat Defendants Guadalupe Rosas and Cristina Rosas’s improperly labeled motions set for today as motions to (a) vacate Defendants Guadalupe Rosas and Cristina Rosas’s defaults, (b) quash service of the summons and First Amended Complaint on Guadalupe Rosas and Cristina Rosas, (c) vacate the January 20, 2023 order dismissing Plaintiff and discharging Plaintiff from liability, (d) dismiss for lack of timely service, and (e) for sanctions.  At the hearing on April 28, 2023, the Court offered Plaintiff a continuance to enable Plaintiff to file a supplemental opposition in light of the notice given today that the Court is inclined to address the merits of all of these forms of relief sought in Defendants’ improperly labeled motion.

 

 

At the hearing on April 28, 2023, Plaintiff waived further notice of the Court’s intention to address all of the issues above on the merits, and Plaintiff waived the offer of a continuance to file a supplemental opposition. 

 

At the hearing on April 28, 2023, Plaintiff stipulated to the Court entering an order: (a) vacating Defendants Guadalupe Rosas and Cristina Rosas’ defaults, (b) quashing service of the summons and First Amended Complaint on Guadalupe Rosas and Cristina Rosas, and (c) vacating the January 20, 2023 order dismissing Plaintiff and discharging Plaintiff from liability. 

 

 

The parties entered into these stipulations in open Court.  Prior to finalizing this minute order, the Court posted this minute order on the Court’s online tentative ruling website.  Plaintiff’s Counsel reviewed the draft minute order and agreed in open court to the accuracy of this minute order in reflecting Plaintiff’s stipulations.

 

 

Based on Plaintiff’s stipulation to this relief sought in Defendants Guadalupe Rosas and Cristina Rosas’s motions, the Court hereby orders that Defendants Guadalupe Rosas and Cristina Rosas’ defaults are hereby vacated, (b) the proof of service of the summons and First Amended Complaint on Guadalupe Rosas and Cristina Rosas is hereby quashed, and (c) the Court’s January 20, 2023 order dismissing Plaintiff and discharging Plaintiff from liability is hereby vacated.

 

Defendants Guadalupe Rosas and Cristina Rosas’s request to dismiss this action is DENIED.  The Court declines to dismiss the action at this juncture.  Mandatory dismissal is inapplicable because less than three years have elapsed since Plaintiff’s filing of the instant action.

 

 

Defendants Guadalupe Rosas and Cristina Rosas’s request for sanctions is DENIED.  Defendants have failed to cite any authority for the Court to award sanctions.  Moreover, the Court has not made any finding of wrongdoing or unethical conduct against Plaintiff’s counsel.

 

Based on the foregoing, Defendants Guadalupe Rosas’ and Cristina Rosas’ motions are GRANTED IN PART.

 

The Defaults entered against Defendants Guadalupe Rosas and Cristina Rosas on November 9, 2022 are VACATED AS VOID.

 

The Service of Summons on Defendants Guadalupe Rosas and Cristina Rosas filed on August 22, 2022 are VACATED AS VOID.

 

The January 20, 2023 order discharging Plaintiff Shemtoub from liability with regard to the interpleaded funds and dismissing Plaintiff Shemtoub is VACATED AS VOID.

 

Defendants Guadalupe Rosas and Cristina Rosas request for dismissal and request for sanctions are DENIED.

 

 

Plaintiff’s Counsel has failed to file proof of service of the Summons and Complaint as to all named defendants, including Defendants Guadalupe Rosas and Cristina Rosas.

 

6/1/23 at 8:30 am - OSC re sanctions for failure to file proof of service of the amended summons and First Amended Complaint on Defendants Guadalupe Rosas and Cristina Rosas.  Plaintiff’s Counsel is ordered to appear on 6/1/23 at 8:30 am and explain why sanctions (including monetary sanctions of at least $500 and/or dismissal) should not be imposed for failure to serve all named defendants, in compliance with California Rules of Court, Rule 3.720.  IN ORDER TO IMPLEMENT PHYSICAL DISTANCING AND UNTIL FURTHER NOTICE, THE COURT STRONGLY ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR REMOTELY FOR NON-TRIAL AND NON-EVIDENTIARY MATTERS, INCLUDING THE 6/1/23 OSC HEARING.  

 

If proof of service has not been filed at that time, then no later than five days before the OSC hearing, Plaintiff’s Counsel is also to file a declaration explaining the failure to file proofs of service of the summons and complaint as to all unserved defendants and explaining any and all efforts undertaken to attempt service of the summons and complaint on all named defendants, including Defendants Guadalupe Rosas and Cristina Rosas.

 

Plaintiff is personally ordered to appear on 6/1/23 at 8:30 am for a Case Management Conference.  No special appearance will be accepted for the CMCs going ahead.

 

Defendant to give notice.

 

The Court Clerk shall also give notice to Plaintiff.