Judge: Katherine Chilton, Case: 20STLC02682, Date: 2022-08-01 Tentative Ruling

Case Number: 20STLC02682     Hearing Date: August 1, 2022    Dept: 25

PROCEEDINGS:      MOTION TO REINSTATE COMPLAINT; CORRECT DEFENDANT’S NAME

MOVING PARTY:   Plaintiff Toby Lee Jones

RESP. PARTY:         None

MOTION TO REINSTATE COMPLAINT; CORRECT NAME

(CCP § 473)

TENTATIVE RULING:

Plaintiff Toby Lee Jones’s Motion to Reinstate Complaint and Correct Defendant’s Name is CONTINUED TO September 6, 2022 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE.  At least 16 court days before the continued hearing, Plaintiff must file and serve supplemental papers as requested herein.  Failure to do so will result in the Motion being placed off calendar or denied.

SERVICE: 

[   ] Proof of Service Timely Filed (CRC, rule 3.1300)                 YES

[   ] Correct Address (CCP §§ 1013, 1013a)                                                 YES

[   ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     YES

OPPOSITION:          None filed as of July 28, 2022.               [   ] Late                      [X] None

REPLY:                     None filed as of July 28, 2022.               [   ] Late                      [X] None

ANALYSIS:

I.                Background

On March 18, 2020, Plaintiff Toby Lee Jones (“Plaintiff”) filed an action against Maya Kim Kuriel, Yaacov Kuriel, and Jee Kuriel (collectively “Defendants”) for negligence per se.  The action arose out of an alleged motor vehicle accident on April 16, 2019.  (Compl. ¶ 9.)

On January 28, 2021, Plaintiff filed a Request for Entry of Default/Judgment; default was entered on February 2, 2021 as to all three Defendants.  On March 7, 2022, the Court held a hearing for Order to Show Cause Re: Entry of Default Judgment/Dismissal and why sanctions should not be imposed for Plaintiff’s failure to comply with California Rules of Court, rule 3.110 (h).  Plaintiff did not appear at the hearing, so the Court dismissed the Complaint without prejudice.

On May 3, 2022, Plaintiff filed the instant Motion to Reinstate Complaint and Correct Defendant Jee Song Kuriel’s Name (the “Motion”).  No opposition was filed.

II.              Legal Standard & Discussion

Discretionary relief is available under Code of Civil Procedure § 473(b) as “the court may, upon any terms as may be just, relieve a party or his or her legal representative from judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”  Alternatively, mandatory relief is available when “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.”  (Ibid.)  Under this statute, an application for discretionary or mandatory relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought.  (Code Civ. Proc., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

Code of Civil Procedure § 473(a)(1) provides that, “the court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer.”

The Court notes that Plaintiff has failed to file and serve a notice of the motion in violation of Code of Civil Procedure § 1010 and California Rules of Court, rule 3.110(a).  The Notice must state the time and place of hearing, nature of order sought and grounds for such order, and accompanying supporting papers listed by caption.  (Code of Civ. Proc. § 1010; Cal. Rules of Court, rule 3.110(b).)  Plaintiff is ordered to file and serve a notice of the Motion in compliance with the rules stated above.

III.            Conclusion & Order

For the foregoing reasons, Plaintiff Toby Lee Jones’s Motion to Reinstate Complaint and Correct Defendant’s Name is CONTINUED TO September 6, 2022 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE.  At least 16 court days before the continued hearing, Plaintiff must file and serve supplemental papers as requested herein.  Failure to do so will result in the Motion being placed off calendar or denied.

Moving party is ordered to give notice.