GARY ROBINSON
C/O
El Castillo
12000 Washington Blvd.
Culver City, CA 90232
Plaintiff in Pro Per
SUPERIOR COURT OF LIMITED JURISDICTION
COUNTY OF LOS ANGELES
West Los Angeles
1633 Purdue Avenue,
Los Angeles, CA 90025
Plaintiff, Vs. DANIEL LUCHASKY, Does one through ten inclusive, Defendants. _____________________________________
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Hearing: 8-12-02 8:30 AM Dept. No. 93 Notice of motion to set aside dismissal, POINTS AND AUTHORITIES AND DECLARION OF IN SUPPORT OF MOTION Date: August 12, 2002 Time: 8:30 A.M. Dept: 93
Action Filed: May 11, 2001
Trial Date: None set
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TO EACH PARTY AND TO THE ATTORNEY OF RECORD FOR EACH PARTY IN THIS ACTION:
Please take notice that on August 12, 2002 at 8:30 AM , or as soon thereafter as counsel may be heard in Department 93 of the above-entitled court located at 1633 Purdue Avenue, Los Angeles, California Plaintiff Gary Robinson will move this court for an order to set aside the dismissal of this case.
This motion is made on the grounds that the dismissal of the case occurred because of a court error resulting in the failure to notify plaintiff of two herrings and minute order dismissing the case.
Said motion will be based on this notice, the points and authorities set forth below, the attached declaration of Gary Robinson and the complete files and records in this action.
Dated: …………………………., 2002
_________________________________
Gary Robinson
GARY ROBINSON
C/O
El Castillo
12000 Washington Blvd.
Culver City, CA 90232
Plaintiff in Pro Per
SUPERIOR COURT OF LIMITED JURISDICTION
COUNTY OF LOS ANGELES
West Los Angeles
1633 Purdue Avenue,
Los Angeles, CA 90025
GARY ROBINSON, Plaintiff, Vs. DANIEL LUCHASKY, Does one through ten inclusive, Defendants. _____________________________________
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Case No.: 01T02053 Hearing: 8-12-02 8:30 AM Dept. No. 93 Notice of motion to set aside dismissal, POINTS AND AUTHORITIES AND DECLARION OF IN SUPPORT OF MOTION Date: August 12, 2002 Time: 8:30 A.M. Dept: 93
Action Filed: May 11, 2001
Trial Date: None set
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Plaintiff hereby moves that the dismissal of this case be set aside.
Wherefore, Plaintiff prays that this motion be sustained.
MEMORANDUM OF POINTS AND AUTHORITIES
I.
STATEMENT OF FACTS
This battery case was brought by Plaintiff, Gary Robinson against Defendant, Daniel Luchasky. The complaint was filed on May 11, 2001. Defendant filed served his answer on June 16, 2001.
At that time status hearing dates were not set at the time of filing of complaint. The parties were notified of the status hearing by mail. The court mailed notices of status hearing for September 26, 2001, on August 24, 2001. The case file contains proof of service for this notice shows that the plaintiff's notice was mailed to the following address (see exhibit):
Gary Robinson
12000 Washington Blvd.
Culver City, CA 9xxxx
The address on the complaint and on the proof of service of the Defendant's answer is the following.
Gary Robinson
C/o
El Castille
12000 Washington Blvd.
Culver City, CA 9xxxxx
The post office returned the notice undelivered with a stamp "Not Deliverable as Addressed Unable to Forward.". The returned notice with enveloped containing the return to sender stamp was placed in the file on September 4, 2001 (see exhibit). The address was not corrected. No notice was sent to the correct address. No phone call was received notifying the plaintiff of the upcoming status hearing. The Defendant was notified of the hearing and appeared at the hearing. Plaintiff was not notified and did not show up at the hearing.
Because of Plaintiff's failure to appear a hearing was set to show cause on October 01, 2001. The notice of this hearing was again sent to the same defective address and the post office again returned the notice undelivered on October 17, 2001 (see exhibit and file). Again the notice was put into the case file and no new notice mailed. Not having notice of the second hearing, Plaintiff again failed to appear.
Because of this, the case was dismissed without prejudice. The notice of the dismissal was again sent to the same defective address December 4, 2001 and returned by the post office undelivered on December 28, 2001. At that time the Plaintiff was unaware that any hearing had taken place and that the case had been dismissed.
Believing that the case was still open Plaintiff served Defendant with a Request for Admissions on January 21, 2002. Knowing that the case had been dismissed, the Defendant did not answer the request.
Plaintiff filed a motion for an Order Establishing Admissions. Despite the fact that the case had been dismissed the clerk of the court accepted the filing and a hearing date was assigned. On March 20, 2002, Defendant filed an opposition to the motion, arguing that it should be denied because of the fact that the case had been dismissed. An exhibit in his papers contained a copy of the proof of service showing the dismissal. This was the first time that the Plaintiff was aware that the case had been dismissed.
The plaintiff contacted the court clerk to verify the dismissal. The plaintiff was told that the case had been dismissed without prejudice, and that the Plaintiff could not file an amended complaint because of the dismissal. The Plaintiff was told that he would have to file a new complaint with a new case number.
On April 21, 2002, Plaintiff filed to new complain for the identical cause of action (Case # 02T01924). On June 7, 2002, Defendant demurred to the complaint asserting that the statute of limitations had expired. In the demur the facts stated that two hearing had taken place for which the Plaintiff did not show. This was the first time that Plaintiff was aware that the hearings had taken place.
The plaintiff asked the court clerk to see the file and at that time discovered that the three notices had been sent to the defective address and returned by the post office undelivered.
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II
SUMMARY OF ARGUMENT
Plaintiff's case was dismissed and he was denied a chance to have his case judged on it's merits, due to some clerical errors on the part of the court staff. The court staff responsible for sending out notices copied the Plaintiff's address incorrectly. Because of this error, the post office could not deliver the notice and it was returned to the court. The court staff member who received the returned notice, apparently did not check to see if the address on the notice matched the address on the complaint. If he or she had the address on the notice could have been corrected and the notice could have been re-mailed and the Plaintiff would have been able to attend the hearings. Plaintiff's complaint contains his phone number. Plaintiff is unaware of any attempt by court staff to contact him by phone to either notify him of the hearings or resolve the problem of the undelivered notices. Note that Plaintiff received all of the Defendant's correspondence at the correct address.
Because this error went uncorrected, Plaintiff was denied notice of the second hearing where he could have explained why he missed the first hearing. Because of Plaintiff's failure to attend the first two hearings, the court dismissed the case for failure to prosecute. The court may have concluded that because the Plaintiff failed to attend these hearing, because he was no longer intended to prosecute the case.
Because the error was again not corrected, Plaintiff never received the notice of dismissal. He was not aware of the dismissal until after Plaintiff's motion for an Order Establishing Admissions discovery request and motion resulting from Defendant's opposition to Plaintiff's Motion. If Plaintiff had been notified properly of the dismissal, he could have requested a setting aside of the dismissal shortly after it was made under CCP §473.
This motion to set aside the dismissal is abased on the following grounds: (1) plaintiff's lack of notice and hearing deprived plaintiff of due process; (2) it is within the equitable powers to do so and justice demands it ;(3) plaintiff's request should be sustained under § 473 since it has been less than six months since the discovery of the dismissal and because the dismissal occurred by the mistake of others.
III
PLAINTIFF'S REQUEST SHOULD BE SUSTAINED
PLAINTIFF'S LACK OF NOTICE AND HEARING DEPRIVED
PLAINTIFF OF DUE PROCESS
If the court intends to dismiss an action on its own motion, rule 372 of the California Rules of Court requires the clerk to set a hearing on the dismissal and mail notice at least 20 days before the hearing date.
"At a minimum, [procedural requirements that precede any dismissal for lack of prosecution] include notice to the plaintiff of a motion or intent to dismiss and an opportunity for plaintiff to be heard. ( citations omitted)" (Reid v. Balter (1993) 14 Cal.App.4th 1186, 1193.)
In Reid v. Balter, supra, this division held "... plaintiffs were not given notice that their case would be dismissed if they failed to appear for the status conference.... Therefore, dismissal was a clear violation of plaintiffs' due process rights (ibid.) and the order of dismissal is void (Lovato v. Sante Fe Internat. Corp. (1984) 151 Cal.App.3d 549 [])." fn. 3 (14 Cal.App.4th at p. 1193.)
Roman v. Usary Tire & Service Center (1994) 29 Cal.App.4th 1422, 1428-1429.
V.
PLAINTIFF'S REQUEST SHOULD BE SUSTAINED
BECAUSE IT IS WITHIN THE EQUITABLE POWERS TO DO SO
AND JUSTICE DEMANDS IT
The principles governing exercise of trial court discretion in granting equitable relief from judgment are set forth in the Restatement of Judgments, chapter 5, section 120. In general, such relief may be granted to an injured party "if in the action he had no reasonable opportunity to have determined impartially a meritorious claim or defense which he had." (Rest., Judgments, supra, § 118.) And more particularly, an aggrieved person may have equitable relief "if, without fault, he did not know of the action" and this was due to the "error of the court or of its officers." (Rest., Judgments, supra, § 120, subd. (b).) This principle has been applied in California in the circumstances where ground for relief is not based so much upon fraud or other misconduct of the defendant as it is in the excusable neglect of the plaintiff to appear and present his claim or defense. If such neglect results in an unjust judgment without a fair adversary hearing, the basis for equitable relief is present and is often called extrinsic mistake. (citations omitted) [3] Such authority does not derive from statute but "[t]he power to set aside judgments obtained through extrinsic fraud and mistake is within the equity jurisdiction of a court." (Bloniarz v. Roloson, supra, at p. 147.) . . .
The doctrine of relief in equity from mistake has applied where the mistake is that of the clerk of the court. (See 46 Am.Jur.2d, Judgments, § 811, p. 968; Oliver v. Pray (1829) 4 Ohio 175.) In 49 Corpus Juris Secundum, Judgments, section 365, page 724, the authors recognize "[r]elief is sometimes granted for mistake made by officers of the court, at least when the mistake is of a ministerial rather than a judicial character." (See cases cited; fns. omitted.) . . . In Restatement of Judgments, section 120, subdivision (b), illustration 9, page 585, it is said: "A brings an action against B who appears and answers. By error the clerk of the court did not give B the customary notice of trial, as a result of which B justifiably does not appear and is defaulted. When it is too late for him to take further proceedings in the action, B learns the facts. Equitable relief will be granted."
BASKE v. BURKE , 125 Cal.App.3d 38, 43-45.
After six months from entry of default, a trial court may still vacate a default on equitable grounds even if statutory relief is unavailable. (citations omitted) . . .
One ground for equitable relief is extrinsic mistake-a term broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits. (citations omitted)
Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.
IV.
PLAINTIFF'S REQUEST SHOULD BE SUSTAINED
UNDER §473 SINCE IT HAS BEEN LESS THAN SIX MONTHS SINCE THE DISCOVERY OF THE DISMISSAL AND BECAUSE THE DISMISSAL OCCURRED BY THE MISTAKE OF OTHERS
In J. Baxter's dissent, he disagreed with the granting of equitable relief, but none-the-less conceded that.. . .
The Legislature has established the time within which relief on grounds of mistake may be sought by a party who is aware of the mistake. The failure to seek that relief on a timely basis necessarily forecloses the availability of equitable relief unless time of discovery of the mistake or fraud or other circumstances made it impossible for the party to make a timely motion under section 473.
Rappleyea v. Campbell (1994) 8 Cal.4th 975, 990.(emphasis added)
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V.
CONSLUSION
For the reasons set forth above. Plaintiff's motion to set aside the dismissal should be granted as requested.
Dated _______________
_________________________________
Gary Robinson
GARY ROBINSON
C/O
El Castillo
12000 Washington Blvd.
Culver City, CA 90232
Plaintiff in Pro Per
SUPERIOR COURT OF LIMITED JURISDICTION
COUNTY OF LOS ANGELES
West Los Angeles
1633 Purdue Avenue,
Los Angeles, CA 90025
GARY ROBINSON, Plaintiff, Vs. DANIEL LUCHASKY, Does one through ten inclusive, Defendants. _____________________________________
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Case No.: 01T02053 Hearing: 8-12-02 8:30 AM Dept. No. 93 DECLARION OF Gary Robinson IN SUPPORT OF MOTION to set aside dismissal Date: August 12, 2002 Time: 8:30 A.M. Dept: 93
Action Filed: May 11, 2001
Trial Date: None set
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I, Gary Robinson do hereby declare and state as follows:
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.,
Dated _______________
_________________________________
Gary Robinson