On November 2, 2020, Plaintiff Maria Jose Paredes-Leon (“Plaintiff”) filed a complaint against Defendants Seth J. Rose (“Defendant”) and Does 1 through 100, alleging a cause of action for negligence. The complaint arises from an alleged automobile accident that occurred on November 7, 2018.

On December 10, 2020, the Court issued an order setting the Final Status Conference date of April 18. 2022; the Trial date of May 2, 2022; and an OSC re Dismissal pursuant to CCP 583.210.  There is a certificate of mailing to the address on file for Plaintiff's attorney.

On April 18, 2022, the Court issued a minute order concerning the Final Status Conference (“FSC”). The Court’s minute order states that the matter was not called for hearing and, given that there were no appearances by either side, the FSC was placed off-calendar. The Court’s April 18, 2022 minute order provides that “[t]he trial date of May 2, 2022 at 8:30 a.m. in Department 30 of the Spring Street Courthouse remains on calendar as currently set.” The Court further stated that “[n]o further notice is required, counsel/parties were given notice of the trial date and Final Status Conference date at the time of filing of the complaint, or at the time of either the filing of a stipulation and order to continue, or a motion ruling by the court.” The Court indicated that if there was no appearance at the trial, the Court would consider dismissing the case pursuant to CCP Section 581(b)(3). (April 18, 2022 Minute Order.)

On May 2, 2022, the Court issued a minute order as to non-jury trial. The Court’s minute order states that the matter was not called for hearing and there were no appearances by or for either side or any communication with the Court as to the lack of appearances. The Court therefore dismissed the complaint without prejudice pursuant to California Code of Civil Procedure, Section 581(b)(3). (May 2, 2022 Minute Order.) The minute order was mailed to Plaintiff's attorney the same day. On May 4, 2022, the Court entered its order of dismissal which dismissed the entire action without prejudice.

On April 4, 2023, Plaintiff filed a motion to set aside the Court’s May 2, 2022 dismissal of this action under CCP 473(b). The motion was beyond the six months and the Court continued the motion so that Plaintiff could add equitable grounds to the motion. There was no proof of service filed as to the motion. On May 22, 2023, the Court issued a minute order which continued the hearing on Plaintiff’s motion from May 2, 2023 to July 20, 2023.

On June 26, 2023, Plaintiff filed a second motion to set aside the Court’s May 22, 2022 dismissal of this action (the “Motion”) pursuant to PC 473(d). No proof of service was filed as to the Motion. The caption of the Motion sets forth a hearing date of July 20, 2023 and states that the hearing was continued from May 22, 2023. 

On July 20, 2023, the Court issued a minute order stating that the hearing on the Motion was continued for 90 days “so that moving party can serve both opposing party and opposing counsel. Proof of service of all pleadings must be filed 30 days prior to next hearing date.” The Court’s rationale for continuing the hearing date for service to be properly effectuated was that: (1) whereas Plaintiff’s first motion was brought on statutory grounds, the Motion was brought on equitable grounds for relief; (2) the moving papers were not served on the defense; (3) setting aside dismissal on equitable grounds takes into account prejudice to the opposing party; and (4) due process requires that the opposing party have notice and an opportunity to be heard.

On September 21, 2023, Plaintiff filed pleadings entitled "proof of service" along with declarations from Plaintiff’s counsel, Denise H. Sze (“Sze”) and Kristina Perry (“Perry”), as to the service of Defendant. As explained below, no service has been effectuated.

Legal Standard

“The court may, upon motion of the injured party, or its own motion, correct clerical mistakes, in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc. § 473(d).)

Discussion

A. Plaintiff’s Failure to Comply with the Court’s July 20, 2023 Minute Order

“[F]or purposes of due process, actual notice does not require actual receipt or actual knowledge; notice by mail or other means reasonably calculated to provide actual notice is sufficient.” (In re. Emily R. (2000) 80 Cal.App.4th 1344, 1353.) “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections.” (Id. at p. 1351.)

1. Declarations as to Service

Plaintiff’s counsel, Denise H. Sze (“Sze”), declares that the claims adjuster who is handling Defendant’s claim was served with a Notice of Continued Motion, the Motion to Vacate Dismissal, Notice of E-Filing, and Proposed Order. (Sze Decl., ¶¶, 4, 6 and Exhibit A.) Sze declares that an attempt to serve Defendant at his last known address listed on his driver’s license, which is located on Martin Luther King Jr. Boulevard, was unsuccessful. (Id.) A skip trace was unable to find a viable address for Defendant as there were no known addresses beyond 2019 found for him. (Id., ¶ 5.) Progressive Insurance, who is Defendant’s insurance carrier, was served with the Notice of Continued Motion, Motion to Vacate Dismissal, Notice of E-Filing, and Proposed Order in an attempt to comply with all service and notice provisions. (Id., ¶ 7.) Counsel declares that Defendant has notice—through his insurance carrier—of this lawsuit and the motion. (Id.) Sze declares that Defendant’s insurance carrier would be the company obliged to appear on Defendant’s behalf since the matter is already tendered to his insurance company. (Id., ¶ 8.)

Kristina Perry (“Perry”) declares that she is a professional searcher of public record information and received an assignment from Sze to locate Defendant for the purposes of conducting an address search. (Perry Decl., ¶¶ 1- 2.) Defendant’s residence address was shown as 4565 W. Martin Luther King Jr. Blvd., Apt 255, Los Angeles, CA 90016 from May 2014 thorough November 2019. (Id., ¶ 6.) Perry found a most current address for Defendant, which is located in Lancaster, CA. (Id., ¶ 7.) Perry states that she called the numbers that came back to confirm the Lancaster address, however, the numbers were either disconnected or no one answered. (Id., ¶ 8.)

2. Analysis

The Court finds that Plaintiff has failed to serve the defendant with the motion pursuant to the Court’s July 20, 2023 minute order. Further, Plaintiff did not file the declaration of its attempt at proof of service of all pleadings 30 days prior to the hearing date. Moreover, the Court ordered Plaintiff to serve all pleadings, which by implication includes the complaint. There is no indication from either of the proofs of service filed on September 21, 2023 that the complaint was ever served. 

While the declaration of Sze states that Progressive Insurance is Defendant’s insurance carrier, the Court did not order Plaintiff to serve Progressive Insurance. There is no indication from the court file that Progressive Insurance is counsel for Defendant. The Court ordered Plaintiff to serve Defendant’s counsel and Defendant. Moreover, the declaration of Perry states that she found a current address for Defendant in Lancaster, CA; however, the declaration of Sze does not state if a service attempt was effectuated at such address.  Service on Defendant’s insurance carrier does not comport with due process. Progressive Insurance was never a party to this action. Sze opines that Defendant has notice of this lawsuit through his insurance carrier; however no evidence has been presented on such contention. Due process requires that Defendant have the opportunity to oppose the motion to vacate dismissal. 

Nevertheless, the Court will address the merits. The court dismissed Plaintiff’s action on May 2, 2022. The six-month deadline of Code of Civ. Proc. section 473(b) passed on November 2, 2022. Thus, relief under Code Civ. Proc., section 473(b) is no longer available. The Court therefore allowed Plaintiff to move the Court under equitable grounds to grant the relief.  Plaintiff filed a motion under CCP 473(d)(clerical mistake). The mailing address on the certificate of mailing filed on May 2, 2022 shows that the minute order was mailed to Denise Sze of the Onyx Law Group at P.O. Box 64191, Los Angeles, CA 90064. The address matches Plaintiff’s counsel’s address.  Court finds notice was properly served by the Court. There has been no clerical mistake.  Further, Plaintiff's counsel advances no other reason to grant the relief. The Court also notes that the emails attached to the declaration shows that the insurance company has been trying to reach counsel for a status of the case.  They do not show that Counsel has been in touch with the insurance company, as averred by Counsel. Finally, the three year mandatory dismissal for failure to serve plaintiff elapses on October 30, 2023. Counsel's declaration shows that she is not prepared to proceed on this case even if the Court did grant the relief sought.

For the foregoing reasons, the motion to set aside / vacate the dismissal is denied.