How to File a Substitute or Corrected Brief?

Useful Rulings on Motion to File Substitute or Corrected Brief

Recent Rulings on Motion to File Substitute or Corrected Brief

SCILABS NUTRACEUTIALS, INC. VS. LUBERSKI INC.

(Leader v. Health Industries of Am., Inc., 89 Cal. App. 4th 603, 615 (2001).) A court may grant discretionary relief upon the moving party’s showing of mistake, inadvertence, surprise or excusable neglect. (Id. at 615-616.) A court must grant mandatory relief upon a showing by an attorney declaration of mistake, inadvertence, surprise or neglect. (Id. at 616.) Cross-Complainant Luberski, Inc. filed three different motions for terminating sanctions.

  • Hearing

    Sep 28, 2020

ALETHA LUCILLE HILL VS RENEE MARIE COSS AKA RENEE MARIE JONES AKA RENEE MARIE ROBINSON

Leader v. Health Indus. of America, Inc. (2001) 89 Cal.App.4th 603, 611.) Cano v. Glover (2006) 143 Cal.App.4th 326, 328–332 provides: “Section 581, subdivision (f) provides: “The court may dismiss the complaint as to that defendant, when:..[¶] ..... [¶] (2).... after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend within the time allowed by the court and either party moves for dismissal.”

  • Hearing

    Sep 28, 2020

AZIZ ALAQUI VS YEVGENIY VAYNERMAN

Leader v. Health Industries of America Inc (2001) 89 Cal.App.4th 603, 620. “An attorney negligently fails to diligently prosecute an action. Code of Civil Procedure section 473 provides that upon a proper motion the court shall vacate a default judgment or dismissal entered because of an attorney's mistake, inadvertence, surprise, or neglect. Does that mean that a trial court may not dismiss an action for failure of the attorney to diligently prosecute the action under section 583.410? No.

  • Hearing

    Sep 25, 2020

EISNER, A PROFESSIONAL CORPORATION, A CALIFORNIA CORPORATION VS JOE SILVER , ET AL.

(Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612.) The Motion was filed less than six months after entry of default, making it timely under the mandatory provision. It is also accompanied by an attorney affidavit of fault that explains Defendants forwarded the Summons and Complaint to attorneys Dennis B. Ellman and Robert Marshall at Greenberg Glusker Fields Claman & Machtinger LLP (“Greenberg Gluckster”). (Motion, Silver Decl., ¶¶2-6.)

  • Hearing

    Sep 23, 2020

  • County

    Los Angeles County, CA

SARAY ROMERO VAZQUEZ ET AL VS HUNTER WAYNE LASSOS ET AL

(Leader v. Health Ind. of America, Inc. (2001) 89 Cal.App.4th 603, 613.) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend….” (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530.) Prejudice includes “delay in trial, loss of critical evidence, or added costs of preparation.” (Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448.)

  • Hearing

    Sep 21, 2020

  • Type

    Personal Injury/ Tort

  • Sub Type

    Auto

KIM D MIDDLETON ET AL VS HOLLYWOOD HEALTH CENTER INC ET AL

Leader v. Health Ind. of America, Inc., 89 Cal. App. 4th 603, 613 (2001). “The power to permit amendments is interpreted very liberally as long as the plaintiff does not attempt to state facts which give rise to a wholly distinct and different legal obligation against the defendant.” Herrera v. Superior Court, 158 Cal. App. 3d 255, 259 (1984). II. Analysis A.

  • Hearing

    Sep 18, 2020

MHJ GROUP INC ET AL VS JI LI ET AL

Leader v. Health Ind. of America, Inc., 89 Cal. App. 4th 603, 613 (2001). “The power to permit amendments is interpreted very liberally as long as the plaintiff does not attempt to state facts which give rise to a wholly distinct and different legal obligation against the defendant.” Herrera v. Superior Court, 158 Cal. App. 3d 255, 259 (1984).

  • Hearing

    Sep 17, 2020

GOLDEN WEST PATIO HOMES OWNERS ASSOCIATION V. KIM

(Leader v. Health Industries of Am., Inc. (2001) 89 Cal. App. 4th 603, 615.) On 5/6/19, the Court granted the petition by Petitioner Golden West Patio Homes Owners Association (the “Association”) against Respondents, including moving party, for summary removal pursuant to Civil Code § 4785. Thereafter, the Court awarded attorney fees on 12/2/19 to Petitioner. The Judgment for attorney fees and costs was signed on 1/2/20, and notice of entry of judgment thereafter was served on 1/3/20.

  • Hearing

    Sep 14, 2020

PETER RUSSELL VS DOMINICK OLIVERI, ET AL.

(Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612.) The Motion was filed less than six months after entry of default, making it timely under the mandatory provision. It is also accompanied by an attorney affidavit of fault that explains Cross-Defendant’s counsel failed to calendar the date by which to answer the Cross-Complaint. (Motion, Nielsen Decl., ¶3.) The Motion is also accompanied by a copy of Cross-Defendant’s proposed Answer to the Cross-Complaint. (Id. at Exh. 2.)

  • Hearing

    Sep 14, 2020

  • County

    Los Angeles County, CA

CLARK VS. CLARK

(Leader v. Health Industries of Am., Inc., 89 Cal. App. 4th 603, 615 (2001).) A court may grant discretionary relief upon the moving party’s showing of mistake, inadvertence, surprise or excusable neglect. (Id. at 615-616.) A court must grant mandatory relief upon a showing by an attorney declaration of mistake, inadvertence, surprise or neglect. (Id. at 616.) Here, Defendant’s counsel has made a showing of inadvertence on the part of defense counsel warranting mandatory relief.

  • Hearing

    Sep 14, 2020

KAREN R. AVILES VS FCA US LLC

(Leader v. Health Indus. of America, Inc. (2001) 89 Cal.App.4th 603, 613.) This is because a trial court possesses “authority to strike pleadings ‘not filed in conformity with its prior ruling.’” (Id [quoting Richard v. Grobstein, Goldman, Stevenson, Siegel, LeVine & Mangel (1992) 6 Cal.App.4th 157, 162].)

  • Hearing

    Sep 11, 2020

TOVELLA VS. MEGARIT

(Leader v. Health Industries of Am., Inc. (2001) 89 Cal.App.4th 603, 615-616 (“Leader”).) Discretionary relief authorizes the court, “upon any terms as may be just, [to] relieve a party ... from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (CCP § 473, subd. (b); Leader, supra, 89 Cal.App.4th at p. 615-616.)

  • Hearing

    Sep 10, 2020

JHON DORIA VS MANOUCHER SHIRBACHEH ET AL

Leader v. Health Industries of America Inc (2001) 89 Cal.App.4th 603, 620. “An attorney negligently fails to diligently prosecute an action. Code of Civil Procedure section 473 provides that upon a proper motion the court shall vacate a default judgment or dismissal entered because of an attorney's mistake, inadvertence, surprise, or neglect. Does that mean that a trial court may not dismiss an action for failure of the attorney to diligently prosecute the action under section 583.410? No.

  • Hearing

    Sep 04, 2020

SOUTH COAST RESTORATION, INC. VS. YASBEK

(Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613-614.) Here, on February 6, 2020, the Court sustained Defendants’ demurrer to Plaintiff’s First Amended Complaint, with 20 days leave to amend. The Court’s February 6, 2020, Minute Order states, “Clerk to give notice to Defendants and Defendants to give notice to all other parties.”

  • Hearing

    Sep 03, 2020

S B VS MARSHAL P FICHMAN MD ET AL

Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613. Plaintiff’s motion for leave to amend is also properly denied because of the likely prejudice to Defendant. Plaintiff’s case has been pending for nearly four years. All discovery has been completed. All trial documents have been exchanged and filed. The only reason the trial did not commence last March was because of the Covid-19 pandemic that led to the stay of all trials.

  • Hearing

    Sep 01, 2020

  • Judge

    H. Jay Ford

  • County

    Los Angeles County, CA

OMOTOSHO VS. KINGSMEAD ASSET

. § 472; see also Leader v. Health Indus. of Am., Inc. (2001) 89 Cal. App. 4th 603, 612-13.) Where the Court’s order sustains a demurrer with leave to amend, “the plaintiff may amend his or her complaint only as authorized by the court’s order.” (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal. App. 4th 1018, 1023.)

  • Hearing

    Aug 20, 2020

DO WOO KIM VS JOON CHUL PARK

(Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613 [“After expiration of the time in which a pleading can be amended as a matter of course, the pleading can only be amended by obtaining the permission of the court”].) Despite not having court approval, Plaintiffs filed their SAC, the subject of Demurring Defendants’ demurrer.

  • Hearing

    Aug 19, 2020

  • Type

    Business

  • Sub Type

    Intellectual Property

DO WOO KIM VS JOON CHUL PARK

(Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613 [“After expiration of the time in which a pleading can be amended as a matter of course, the pleading can only be amended by obtaining the permission of the court”].) Despite not having court approval, Plaintiffs filed their SAC, the subject of Demurring Defendants’ demurrer.

  • Hearing

    Aug 19, 2020

  • Type

    Business

  • Sub Type

    Intellectual Property

TYCO VS. CENTURY FURNITURE

(Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612.). However, this court notes that CCP §473(b) also requires that a defendant seeking to vacate a default must serve his client’s proposed answer with his motion. In this case, the Defendant’s original answer was improperly filed on behalf of the corporation and was ordered stricken. At the court proceeding on April 18, 2019, counsel for Defendant was directly ordered to file an amended answer for the Defendant. He failed to do so.

  • Hearing

    Aug 17, 2020

  • Judge

    Burch

  • County

    Contra Costa County, CA

JUAN OCAMPO VS KIA MOTORS AMERICA, INC.

(Leader v. Health Ind. of America, Inc. (2001) 89 Cal.App.4th 603, 613.) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend….” (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530.) Prejudice includes “delay in trial, loss of critical evidence, or added costs of preparation.” (Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448.)

  • Hearing

    Aug 14, 2020

PATRICE CLARK VS CHARLES OCONNOR ET AL

Leader v. Health Industries of America Inc (2001) 89 Cal.App.4th 603, 620. “An attorney negligently fails to diligently prosecute an action. Code of Civil Procedure section 473 provides that upon a proper motion the court shall vacate a default judgment or dismissal entered because of an attorney's mistake, inadvertence, surprise, or neglect. Does that mean that a trial court may not dismiss an action for failure of the attorney to diligently prosecute the action under section 583.410? No.

  • Hearing

    Aug 13, 2020

KORMELUK VS. DEL VALLE

(Leader v. Health Industries of Am., Inc., 89 Cal. App. 4th 603, 615 (2001).) A court may grant discretionary relief upon the moving party’s showing of mistake, inadvertence, surprise or excusable neglect. (Id. at 615-616.) A court must grant mandatory relief upon a showing by an attorney declaration of mistake, inadvertence, surprise or neglect. (Id. at 616.) Here, Plaintiff’s counsel has made a showing sufficient to warrant mandatory relief.

  • Hearing

    Aug 10, 2020

KORMELUK VS. DEL VALLE

(Leader v. Health Industries of Am., Inc., 89 Cal. App. 4th 603, 615 (2001).) A court may grant discretionary relief upon the moving party’s showing of mistake, inadvertence, surprise or excusable neglect. (Id. at 615-616.) A court must grant mandatory relief upon a showing by an attorney declaration of mistake, inadvertence, surprise or neglect. (Id. at 616.) Here, Plaintiff’s counsel has made a showing sufficient to warrant mandatory relief.

  • Hearing

    Aug 10, 2020

VIVIAN S LEE VS DONG JIN KIM ET AL

(Leader v. Health Ind. of America, Inc. (2001) 89 Cal.App.4th 603, 613.) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend….” (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530.) Prejudice includes “delay in trial, loss of critical evidence, or added costs of preparation.” (Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448.)

  • Hearing

    Aug 10, 2020

  • Type

    Personal Injury/ Tort

  • Sub Type

    Fraud

SU YANG, ET AL. VS JDW ASSOCIATION, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY;, ET AL.

(Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612 citing Gautier v. General Tel. Co. (1965) 234 Cal.App.2d 302, 310.) Here, Plaintiffs have not previously amended their pleading without leave of the Court. Accordingly, the Court allows Plaintiffs’ filing of the First Amended Complaint in lieu of filing an opposition to the instant demurrer. Defendants have filed answers, thereby waiving their right to demur to the omplaint.

  • Hearing

    Aug 10, 2020

  • Type

    Real Property

  • Sub Type

    Landlord Tenant

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