Judge Mark E. Windham, Case 21STLC04322 2023-01-18 Tentative Ruling

If you desire to submit on the tentative ruling, you may do so by e-mailing Dept. 26 at the Spring Street Courthouse until the morning of the motion hearing.

The e-mail address is SSCdept26@lacourt.org

The heading on your e-mail should contain the case name, number, hearing date, and that you submit. The message should indicate your name, contact information, and the party you represent. Please note, the above e-mail address is to inform the court of your submission on the tentative ruling. All other inquiries will not receive a response.

If there are no appearances by either side and no submission on the Court's tentative ruling, the matter will be placed OFF CALENDAR.

Due to overcrowding concerns of COVID-19, all parties shall make every effort to schedule a remote appearance via LACourtConnect (https://my.lacourt.org/laccwelcome) for their next hearing. The parties shall register with LACourtConnect at least 2 hours prior to their scheduled hearing time.

Plaintiff William Doyle dba Collection Network’s Motion to Vacate Dismissal of Appeal is PLACED OFF CALENDAR.

On June 6, 2021, Plaintiff William Doyle dba Collection Network (“Plaintiff”) filed the Complaint in this action against Defendants Zachary Kim Eschrich dba K M Engineering Construction, Kime Engineering Construction, Inc., Katie Stahl and Moet Fawaz aka Mohammed Moet Fawaz (“Defendant Fawaz”).

On October 28, 2021, the Court granted Defendant Fawaz’s Motion to Quash Service. (Minute Order, 10/28/21.) On February 1, 2022, Plaintiff filed Proof of Substituted Service and a Request for Entry of Default against Defendant Fawaz. Default was entered against Defendant Fawaz on the same date.

On March 25, 2022, the parties stipulated to vacate the default and to allow Defendant Fawaz to file a responsive pleading. (Stip and Order, filed 03/25/22.) On April 19, 2022, Defendant Fawaz filed a Demurrer to the Complaint. The Court sustained the Demurrer to the Complaint without leave to amend as to the first, second and third causes of action, and with leave to amend as to the fourth cause of action. (Minute Order, 05/16/22.)

Plaintiff filed the First Amended Complaint on May 23, 2022. On July 19, 2022, the Court sustained Defendant Fawaz’s Demurrer to the First Amended Complaint without leave to amend. (Minute Order, 07/19/22.) On August 23, 2022, Plaintiff filed a Notice of Appeal, which was designated Case No. BV033872. A default was issued for the Appeal on September 22, 2022. (Notice of Default, 09/22/22.) The Appeal was dismissed on November 16, 2022 for Plaintiff’s failure to cure the default. (Appellate Order Dismissing Appeal, 11/16/22.)

Judgment was entered in Defendant Fawaz’s favor in the trial court on December 5, 2022. (Judgment, 12/05/22.) Plaintiff filed the instant Motion to Vacate Dismissal of Appeal on December 22, 2022. Defendant filed an opposition on December 27, 2022.

Plaintiff moves for relief from the dismissal of the Appeal pursuant to Code of Civil Procedure section 473, subdivisivion (b). As Defendant points out, however, motions pertaining to an appeals court are not properly brought to the trial court. (See Cal. Rules of Court, rule 8.54.) The request for relief must be made to the reviewing court. Accordingly, Plaintiff’s Motion to Vacate Dismissal of Appeal is PLACED OFF CALENDAR.