Judge: Randall J. Sherman, Case: 2018-01009750, Date: 2022-12-16 Tentative Ruling

Plaintiffs’ Motion to Set Aside Judgment of Dismissal Entered on March 18, 2022 as to Defendants Motel 6 Wholly Owned by Blackstone Property Group, LLC, and P.D. Transport Inc. DBA Southside Towing is denied.

Consistent with California Rules of Court, Rule 3.728(8), on April 16, 2021 this court set an OSC re Dismissal of unserved, undefaulted defendants for August 20, 2021, continued it to November 18, 2021, and continued it again to March 18, 2022, before finally dismissing five defendants.  Plaintiffs never filed any response to the OSC for any of the three hearings.  By the time the court dismissed these defendants, the case was over 3.5 years old, justifying dismissal on the additional grounds that plaintiffs failed to serve these defendants within three years (plus a six-month COVID extension) pursuant to Code of Civil Procedure §§583.210(a), 583.250(a)(2) and 583.420(a)(1), and that plaintiffs failed to bring this case to trial within three years (plus a six-month COVID extension) pursuant to Code of Civil Procedure §§583.360(a) and 583.420(a)(2)(A).

Plaintiffs now seek to set aside the dismissals of defendants Motel 6 and P.D. Transport, arguing pursuant to CCP §473(b) that their former attorney Victor Luke (who is also one of the four plaintiffs) inadvertently failed to file Proofs of Service for those two defendants, because he “had and still has a moderate to severe short-term memory and memory processing problem, assumed that all proof of service were filed when in fact were not filed to the court or simply forgot to file them to the court”.  Plaintiffs contend that when they received the case file in September 2022 they saw the Proofs of Service in there.  The two unfiled Proofs of Service are attached to the moving papers as Attachment C.

These Proofs of Service are actual smoking guns, suggesting that this motion was falsely brought.  Both Proofs of Service, purportedly signed on November 29 and 30, 2018, have the four plaintiffs listed at the top of the documents, in pro per.  But attorney Victor Luke was plaintiffs’ counsel of record from the filing of this case on August 3, 2018 until at least September 5, 2019, before one of his multiple suspensions by the State Bar.  If these Proofs of Service were actually prepared in late 2018, they would have had Victor Luke’s name and address listed at the top, but instead they have plaintiffs’ names in pro per, a more recent development.  Thus, it appears that plaintiffs recently prepared these Proofs of Service for purposes of this motion.  Indeed, if these defendants actually had been served in late 2018, presumably they would have responded to the Complaint or reached out to plaintiffs’ counsel, not ignore the legal process.  Interestingly, none of plaintiffs’ three supporting declarations mentions these Proofs of Service, presumably to avoid perjury.  Thus, this court finds plaintiffs’ allegations of defendants Motel 6 and P.D. Transport having been served in 2018 not credible, and denies this motion.

The clerk is directed to serve notice of the ruling.