Judge Holly J. Fujie, Case 22STCV03159 2022-08-04 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

MOVING PARTY: Defendants Cargo Union, Co., Ltd. (“Cargo”) and Byong J. Ahn (“Ahn”) (collectively, “Moving Defendants”)

The Court has considered the moving papers. No opposition papers were filed. Any opposition papers were required to have been filed and served at least nine court days before the hearing under California Code of Civil Procedure (“CCP”) section 1005, subdivision (b).

Plaintiffs initiated this action by filing their complaint (the “Complaint”) on January 26, 2022. Moving Defendants failed to answer the Complaint and default was entered against them on April 20, 2022. On June 15, 2022, Moving Defendants filed a motion to set aside the entry of default pursuant to CCP section 473, subdivision (b) (the “Motion”).

The court may, upon any terms as may be just, relieve a party or his or her legal representative 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).) Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. (Id.)

The law favors a trial on the merits and courts therefore liberally construe section 473. (Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1477.) Doubts in applying section 473 are resolved in favor of the party seeking relief from default. (Id. at 1478.)

In support of the Motion, Ahn declares that when he was served with the Complaint on behalf of himself and Cargo, the company he owns and operates, he was busy with operating his company. (Declaration of Byong J. Ahn (“Ahn Decl.”) ¶¶ 2-3.) Because he was distracted by work, he put the documents in a file so that he would not misplace them, but subsequently forgot about them. (Ahn Decl. ¶ 3.) When he received the Request for Entry of Default in the mail, Ahn realized his error and retained an attorney. (Ahn Decl. ¶ 4.)

The Court finds that Moving Defendants have set forth circumstances warranting relief under CCP section 473, subdivision (b). The Court therefore GRANTS the Motion. The Court notes that Moving Defendants filed their proposed answer (the “Answer”) to the Complaint, rather than including it with the Motion. As Plaintiffs filed a first amended complaint (the “FAC”) on July 18, 2022, the Complaint is no longer the operative pleading and the proposed Answer is moot. Moving Defendants are ordered to file an answer to the FAC within 30 days of being served with the FAC.

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court