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Zapata v. The Superior Court (2019)

May 29, 2019

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Horvitz & Levy obtained a “Palma notice” from the Court of Appeal in response to a petition for writ of mandate, which resulted in the trial court vacating its order denying the defendant’s motion to quash service of the complaint. The Court of Appeal’s ruling effectively forced the trial court to reconsider the merits of defendant’s motion to quash service of the complaint and thus granted the defendant a second chance to obtain a complete dismissal of the lawsuit on statute of limitations grounds.

Plaintiff Jerry Aragon was injured in a four-car automobile accident and sued one of the other drivers, Paul Zapata (our client), and his employer, HRD Aero Systems, Inc. Because Aragon added Zapata and HRD as “Doe” defendants after the expiration of the statute of limitations, Aragon was required to show he was ignorant of their identities when the complaint was initially filed. Zapata and HRD moved to quash service of the amended complaint, which the court granted, finding that Aragon was not ignorant of HRD when he filed the complaint and had not properly served Zapata. The trial court also found that Zapata failed to prove Aragon knew Zapata’s identity when the complaint was filed. After Aragon properly served Zapata with the complaint, Zapata filed a second motion to quash, arguing again that Aragon was not ignorant of Zapata’s identity when the complaint was filed and adding additional evidence that Aragon and his wife had seen Zapata’s driver’s license and received Zapata’s business card at the scene of the accident. The trial court refused to consider the additional evidence and denied the second motion to quash, finding it was an improper motion for reconsideration of an issue already determined by the trial court.

Horvitz & Levy filed a petition for writ of mandate on Zapata’s behalf in the Court of Appeal, arguing the trial court erred in ruling that the motion for reconsideration procedure applied to Zapata because he had never been a properly served party when the first motion was decided. The Court of Appeal (Second District, Division Three) agreed and informed the trial court that it intended to issue a writ of mandate if the trial court did not vacate its order and reconsider Zapata’s motion on the merits. In response, the trial court vacated its order denying the motion to quash, held another hearing after further briefing, then denied the motion to quash. Zapata intends to pursue discovery on the relevant issues and seek summary judgment on its statute of limitations defense.