Judge: Katherine Chilton, Case: 20STLC02682, Date: 2022-09-20 Tentative Ruling

Case Number: 20STLC02682     Hearing Date: September 20, 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 Jee Song Kuriel’s Name is 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 September 19, 2022.                     [   ] Late                      [X] None

REPLY:                     None filed as of September 19, 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 February 22, 2021, Plaintiff filed a Request for Entry of Default/Judgment; default was entered 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).  Neither party appeared at the hearing, so the Court dismissed the Complaint without prejudice.  (3-7-22 Minute Order.)

On May 3, 2022, Plaintiff filed the instant Motion to Reinstate Complaint and Correct Defendant Jee Song Kuriel’s Name (the “Motion”).

On August 1, 2022, the Court noted that Plaintiff had failed to serve and file a notice of motion and, on its own motion, continued the hearing to September 6, 2022, to provide Plaintiff with additional time to file a notice.  (8-1-22 Minute Order.)

On September 6, 2022, pursuant to Plaintiff’s request, the hearing on the Motion was once again continued and Plaintiff was ordered to serve and file a notice of motion prior to the next hearing.  (9-6-22 Minute Order.)

To date, no additional documents have been filed with the Court.

No opposition has been 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.”

            On August 1, 2022, the Court noted that Plaintiff had 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).  (8-1-22 Minute Order.)  Plaintiff was ordered to file and serve notice in compliance with the rules stated above prior to the next hearing date on September 6, 2022.  (Ibid.)  On September 6, 2022, pursuant to Plaintiff’s request, the Court once against continued the hearing and ordered Plaintiff to file and serve a notice of motion by the following hearing date.  (9-6-22 Minute Order.)

            To date, Plaintiff has not filed any supplemental papers.  Thus, Plaintiff’s Motion is DENIED.

III.            Conclusion & Order

For the foregoing reasons, Plaintiff’s Motion to Reinstate Complaint and Correct Jee Song Kuriel’s Name is DENIED.

Moving party is ordered to give notice.