Judge: Gail Killefer, Case: 21STCV43057, Date: 2024-08-14 Tentative Ruling
Case Number: 21STCV43057 Hearing Date: August 14, 2024 Dept: 37
HEARING DATE: Wednesday, August 14, 2024
CASE NUMBER: 21STCV43057
CASE NAME: Bong Cho v. 943 Normandie LLC, et al.
MOVING PARTY: Defendants 943 Normandie LLC
and Jose Molina
OPPOSING PARTY: Plaintiff Bong aka Tina Cho
TRIAL DATE: Not set.
PROOF OF SERVICE: OK
PROCEEDING: Motion to Set Aside
Default and Default Judgment
OPPOSITION: 1 August 2024
REPLY: 7
August 2024
TENTATIVE: Defendants’ motion to set aside the default
and default judgment is denied. Defendant to give notice.
Background
This
action arises from the sale of 3200 San Marino Street, Los Angeles 90006 (the
“Property”). Plaintiff/Cross-Defendant Bong Cho aka Tina Cho, an individual
(“Cho”), filed this action on November 22, 2021, against
Defendants/Cross-Complainants 943 Normandie LLC, a California limited liability
company (the “LLC”), and Jose Molina aka Joe Molina, an individual (“Molina”).
The
Complaint alleged five causes of action: (1) breach of written contract; (2)
fraud in the inducement; (3) deceit based on intentional misrepresentation; (4)
promise without the intent to perform; and (5) unjust enrichment.
On
October 31, 2023, at the start of the bench trial, Defendant Molina, in pro
per, telephoned the court and requested that the court delay and call the
matter at 10:30 a.m. Defendant LLC was not represented by counsel and failed to
appear. The court called the matter on
second call at 10:40 a.m., but Molina did not appear. Instead, Defendant Molina had someone deliver
a Notice of Removal to the court. The Notice of Removal was untimely, and the
court continued with the trial.
As the
LLC was suspended by the California Secretary of State, the court struck the
Cross-Complaint filed by the LLC against Cho. (Cal. Rev. & Tax Code, §§
23301 & 23301.5.) The court dismissed the Cross-Complaint filed by Molina
against Cho without prejudice pursuant to CCP § 581(b)(5).
At trial,
Plaintiff dismissed the second, fourth, and fifth causes of action in the
Complaint. At the close of evidence, the court ruled in favor of Plaintiff Cho
and against Defendants Molina and 943 Normandie, LLC, jointly and severally.
The Court signed and filed the Judgment on December 4, 2023.
On
January 12, 2024, Plaintiff filed a Motion for Attorney Fees and noticed the
hearing for February 9, 2024. On
February 7, 2024, the Court sua sponte continued the hearing to March 1,
2024. On March 1, 2024, Defendant Molina
appeared and argued that he had not received the motion and wanted an
opportunity to respond. (Minute Order,
3/1/2024.) The Court noted that the
Proof of Service indicated that “Plaintiff’s counsel served both Mr. Molina and
the LLC by mail at two addresses each.”
(Id.) The Minute Order also
states that the Court was confident that Mr. Molina had notice of the March 1,
2024, hearing because on February 7, 2024, the court notified the parties telephonically
that the hearing was continued to March 1, 2024. (Id.) Nonetheless, the Court continued the hearing
to March 29, 2024.
On March
20, 2024, Plaintiff filed a proof of service showing service of Plaintiff’s
motion for attorney’s fees and costs by email and mail. On March 22, 2024,
Defendant Molina filed an ex parte requesting that the hearing on the
motion for attorney’s fees be continued. The court denied the ex parte and
Defendant Molina filed an opposition to the motion for attorney’s fees on March
25, 2024.
On March
28, 2024, a substitution of attorney form was filed, wherein Robert W. Hirsh
became Defendant Molina’s counsel of record. On March 29, 2024, the court
granted Plaintiff’s motion for attorney’s fees. On August 7, 2024, Robert W.
Hirsch filed a substitution of attorney for 943 Normandie LLC.
On June
3, 2024, Defendants filed this Motion to Set Aside Entry of Default and Default
Judgment against Defendant 943 Normandie, LLC and Joe Molina. Plaintiff opposes
the Motion. The matter is now before the court.
I. Legal Standard
“Section 473(b) provides for both
discretionary and mandatory relief.¿ [Citation.]”¿(Pagnini v. Union Bank,
N.A. (2018) 28 Cal.App.5th 298, 302.)¿ An application for relief under this
section must be made no more than six months after
entry of the judgment, dismissal, order, or other proceeding from which relief
is sought and must be accompanied by an affidavit of fault attesting to the
mistake, inadvertence, surprise or neglect of the moving party or its attorney.
(CCP, § 473, subd. (b); English v. IKON Business Solutions (2001) 94
Cal.App.4th 130, 143.)
The mandatory provision states in
the pertinent part:¿¿¿
¿¿
[T]he¿ court shall, whenever an application for relief is
made no more than six months after entry of judgment, is in proper form, and is
accompanied by an attorney’s sworn affidavit attesting to his or her mistake,
inadvertence, surprise, or neglect, vacate any (1) resulting default entered by
the clerk against his or her client, and which will result in entry of a
default judgment, or (2) resulting default judgment or dismissal entered
against his or her client, unless the court finds that the default or dismissal
was not in fact caused by the attorney’s mistake, inadvertence, surprise, or
neglect.¿
(CCP § 437(b).)¿¿
¿¿
“The purpose of this mandatory
relief provision is to alleviate the hardship on parties who lose their day in
court due to an inexcusable failure to act by their attorneys.” (Rodriguez
v. Brill (2015) 234 Cal.App.4th 715, 723.) Whenever relief is granted based
on an attorney’s affidavit of fault, the court shall direct the attorney to pay
reasonable compensatory legal fees and costs to the opposing party. (CCP §
473(b)).¿¿
II. Request for Judicial Notice
The court may take judicial notice
of “official acts of the legislative, executive, and judicial departments of
the United States and of any state of the United States,” “[r]ecords of (1) any
court of this state or (2) any court of record of the United States or of any
state of the United States,” and “[f]acts and propositions that are not
reasonably subject to dispute and are capable of immediate and accurate
determination by resort to sources of reasonably indisputable accuracy.” (Evid.
Code, § 452, subds. (c), (d), and (h).) “Taking judicial notice of a
document is not the same as accepting the truth of its contents or accepting a
particular interpretation of its meaning.” (Joslin v. H.A.S. Ins. Brokerage (1986)
184 Cal.App.3d 369, 374.)
Defendants request judicial notice
of Exhibits 1 through 5 but the exhibits are labeled Exhibits A to D and are
the only exhibits attached to the request for judicial notice.
1)
Exhibit A: Defendant Joe Molina’s Ex
Parte Application For Order To View And Copy Plaintiff Bong Cho’s Trial
Exhibits Used On October 31, 2023 And To Continue Hearing Date On Plaintiff
Bong Cho’s Motion For Attorney’s Fees By Seven Days filed on March 27, 2024.
2)
Exhibit B: Defendant Joe Molina’s Request
For Judicial Notice [Filed Concurrently With Defendant Joe Molina’s Ex Parte
Application For Order To View And Copy Plaintiff Bong Cho’s Trial Exhibits Used
On October 31, 2023, And To Continue Hearing Date On Plaintiff Bong Cho’s
Motion For Attorney’s Fees By Seven Days].
3)
Exhibit C: Notice of Ruling dated March
29, 2024.
4)
Exhibit D: October 31, 2023, Certified
Trial Transcript.
The court grants Defendants’
request for judicial notice as to Exhibits A, C, and D but not Exhibit B as
Defendants fail to show that Exhibit B contains a list of exhibits subject to
dispute and are not the appropriate subject for judicial notice.
Plaintiff requests judicial notice
of the following:
1)
Minute Order entered on October 31, 2023, in the
case entitled Bong Cho aka Tina Cho v. 943 Normandie, LLC, et al., LASC
Case Number 21STCV43057 (the “Lawsuit”). A true and correct copy of the Minute Order
entered on October 31, 2023 is attached hereto as Exhibit “1” and is
incorporated herein by this reference.
2)
Judgment entered on December 4, 2023, in the
Lawsuit. A true and correct copy of the Judgment is attached hereto as Exhibit “2”
and is incorporated herein by this reference.
3)
Minute Order entered on October 30, 2023, in the
Lawsuit. A true and correct copy of the Minute Order entered on October 30, 2023,
is attached hereto as Exhibit “3” and is incorporated herein by this reference.
Plaintiff’s request for judicial
notice is granted.
III. Discussion
Defendants move to
have the default and default judgment vacated and set aside pursuant to CCP § 473(b).
First, relief is only
available under the discretionary provision of CCP § 473(b). The California Supreme
Court has made it clear that the mandatory provision of section 437(b)
“narrowly covers only default judgments and defaults that will result in the
entry of judgments.” (Even Zohar Construction & Remodeling, Inc. v.
Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 838.) “[T]he mandatory
provision of section 473(b) does not apply to a judgment entered after an
uncontested trial in a defendant's absence because such a judgment is neither a
‘default,’ a ‘default judgment’ nor a
dismissal’ within the meaning of section 473(b).” (Vandermoon v. Sanwong
(2006) 142 Cal.App.4th 315, 317.)
Second, Defendant 943
Normandie LLC has failed to submit evidence that it is no longer a suspended
corporation and has regained the capacity to sue and defend this action. (See Reed
v. Normand (1957) 48 Cal.2nd 328, 343.) A lawyer who knowingly represents a
suspended corporation and conceals the fact from the court may be subject to
sanctions. (Palm Valley Homeowners Ass'n., Inc. v. Design MTC (2000) 85
Cal.App.4th 553, 563.)
Third,
Defendant Molina represents that he was not provided with the trial exhibits,
preventing him from going to court and preparing a defense. (Molina Decl., ¶
20.) “In this case, the failure to turn over trial exhibits over to me
constitutes excusable neglect and a basis for setting aside the default
judgment.” (Id, ¶ 56.) On reply, for the first time Defendants represent
that they had mistakenly believed that the case had been removed to federal
court and this was why they failed to appear at trial. (Reply, at p. 1:20-24.) This
motion is not accompanied by an affidavit of fault attesting to the fact that
Defendants failed to appear because they wrongfully believed the case had been
removed to federal court. (CCP § 473(b).)
The
record of this proceeding establishes that Defendant Molina called the court on
the day of trial not to request a continuance but to request that the matter be
called at 10:30 a.m. Defendant Molina failed to appear after second call at
10:40 a.m. and, instead, had a Notice of Removal delivered. Moreover, after the bench trial, Defendants
delayed in obtaining counsel and delayed in filing this motion, filing this
motion only one day before the six-month statute of limitations barred this
Motion. The facts above reflect that
Defendants lacked diligence in seeking to set aside the Judgment.
A
party seeking relief under section 473 must be diligent. (See Benjamin
v. Dalmo Mfg. Co. (1948) 31 Cal.2d 5270528.) “ ‘The moving party has a
double burden: He must show a satisfactory excuse for his default, and he must
show diligence in making the motion after discovery of the default.’ ” (Id. at
p. 625.)
According to Benjamin, “the
proper procedure” for motions under section 473(b) first contemplates the
moving party's “presentation of some explanation, by affidavit or testimony, of
any extended delay, and the court then determines whether such explanation may
be deemed sufficient to justify the granting of
the relief sought.” [Citation] While six months—the longest time
allowable—represents the outside limit “of the court's jurisdiction to
grant relief in any event, the ‘reasonable time’ test stands as an
independent consideration and in any given situation, its determination, within
the maximum six-month period, ‘depends upon the circumstances of that
particular case.’ ” [Citation.] For that reason, “there must be some
showing—some evidence—” of the relevant circumstances. [Citation.] Here,
appellant offered no evidence explaining the delay in seeking relief.
Given the absolute failure of proof on this point, there is no basis for
granting relief. . . “To hold otherwise—that in the absence of any
explanation a delay of more than three months in undertaking to open a default
can be excused—would empower the trial court to dispense with the ‘reasonable
time’ requirement of the statute.” [Citation.]
(Huh
v. Wang (2007) 158 Cal.App.4th 1406, 1422.)
Here,
Defendants fail to explain why they waited almost six months to bring this
Motion. The court fails to find that Defendants made this Motion within a
reasonable time as required by section 473(b).
Defendants
also fail to present evidence to show that they sought to vacate the Judgment
within a reasonable time as required by section 473(b).
“Relief
on grounds of mistake, inadvertence, surprise or excusable neglect is available
only on a showing that the claimant's failure to timely present a claim was
reasonable when tested by the objective ‘reasonably prudent person’ standard.”
(Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th
1288, 1293.) “The party seeking relief based on a claim of mistake must
establish he was diligent in investigating and pursuing the claim [citation]
and must establish the necessary elements justifying relief by the
preponderance of the evidence. [Citation.]” (Ibid) “A showing of
reasonable diligence is required to establish that the petitioner acted as a
reasonably prudent person.” (N.G. v. County of San Diego (2020) 59
Cal.App.5th 63, 74.)
Defendants
fail to establish that they acted with reasonable diligence in seeking to set
aside the Judgment. Defendants fail to show that a reasonably prudent person
would have not appeared for the October 31, 2023, bench trial – after calling
the court to request the matter be continued for 30 minutes to accommodate
Defendants. Instead, Defendants had a
Notice of Removal delivered by a messenger.
Defendants also failed to establish that they were reasonably prudent in
seeking legal counsel.
For
the reasons set forth above, the Court denies Defendants’ Motion.
Conclusion
Defendants’ motion to set aside
the default and default judgment is denied. Defendants to give notice.