Judge: Joel L. Lofton, Case: 22AHCV00335, Date: 2022-12-15 Tentative Ruling

Case Number: 22AHCV00335    Hearing Date: December 15, 2022    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:     December 15, 2022                             TRIAL DATE: No date set.

CASE:                         MINGWEI CHIU and MARGARET CHAO CHIU, individually and as Trustee of the Chiu Family Trust v. FRANCES WEN-CHING TSENG also known as FRANCES TSENG, an individual; ALL PERSONS UNKNOWN, CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN, OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO PLAINTIFF’S TITLE, OR ANY CLOUD UPON PLAINTIFFS’ TITLE THERETO and DOES 1 through 50, inclusive.

CASE NO.:                 22AHCV00335

MOTION TO SET ASIDE

MOVING PARTY:               Defendant Frances Wen-Ching Tseng

RESPONDING PARTY:      Plaintiffs Mingwei Chiu and Margaret Chao Chiu

SERVICE:                              Filed November 16, 2022

OPPOSITION:                       Filed November 30, 2022

REPLY:                                   Filed December 8, 2022

RELIEF REQUESTED

             Defendant moves to set aside the default entered against her.

BACKGROUND

             This case arises out a dispute involving property located at 927 S. San Gabriel Boulevard, San Gabriel, 91776 (“Subject Property”). Plaintiffs Mingwei Chiu and Margaret Chao Chiu (“Plaintiffs”) allege that Defendant Frances Wen-Ching Tseng (“Defendant”) was a former employee of an escrow company owned and operated by Plaintiffs named Sincere Escrow, Inc. (“Sincere”). Plaintiffs alleged that Frances represented to Plaintiffs that she would carry on the operations of Sincere after Plaintiffs’ retirement and induced them to transfer a 25% interest in the subject property to her. Plaintiffs allege that Defendant improperly induced Plaintiffs to pay her a higher salary and improperly authorized a down payment and monthly payments for Defendant’s sister’s car. Plaintiffs allege Defendant quit Sincere in 2006.

            Plaintiffs filed this complaint on June 7, 2022, alleging three causes of action for (1) undue influence, (2) promissory fraud, and (3) quiet title.

TENTATIVE RULING

            Defendant’s motion to set aside default is GRANTED.

            Defendant’s demurrer is deemed filed as of the date of this hearing.

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.)  The discretionary relief provisions of Code of Civil Procedure section 473, subd. (b) provide in relevant part: “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. 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.” 

DISCUSSION

            This case was filed on June 7, 2022. Plaintiffs provide that Defendant was personally served on August 5, 2022. On September 21, 2022, after Plaintiffs’ request, default was entered against Defendant. Defendant provides that she did not understand the consequences of the documents she was served and did not seek legal help until October 2022, after default was already entered. (Tseng Decl. ¶ 2.) Defendant filed this instant motion on November 16, 2022.

            Defendant has shown that she failed to respond to the summons on the complaint based on mistake or inadvertence. Plaintiffs oppose this motion, citing Hearn v. Howard (2009) 177 Cal.App.4th 1193. In Hearn, the Court held “[t]he inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief.” (Id. at p. 1206.) Defendant’s failure to timely respond to the summons, while not completely justified, is also not wholly inexcusable. Defendant did delay in seeking legal counsel, but she did consult and retain an attorney roughly two months after being served the summons on the complaint. She then moved to set aside the default. Defendant has demonstrated inadvertence or mistake.

CONCLUSION

            Defendant’s motion to set aside default is GRANTED.

            Defendant’s demurrer is deemed filed as of the date of this hearing.

            Plaintiff is awarded sanctions in the amount of $600

Demurrer and Case Management Conference is scheduled to be heard on Feb 8, 2023, at 8:30 am

            Moving party to give notice.

Dated:   December 15, 2022                           ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit.  Parties intending to appear are strongly encouraged to appear remotely.  alhdeptx@lacourt.org