Judge: Jon R. Takasugi, Case: 23STCV01106, Date: 2024-11-07 Tentative Ruling

Case Number: 23STCV01106    Hearing Date: November 7, 2024    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Plaintiff’s motion to vacate this Court’s order of dismissal is GRANTED.

            On January 18, 2023, Plaintiff Minji Jo (“Plaintiff”) filed a Complaint against Defendants NSEW GA, Inc.; NSEW Holding NA Corp.; NSEW North America, LLC; Paul Kwak; and Michelle Kwak; and Does 1 through 50, inclusive, alleging causes of action for (1) breach of oral contract, (2) intentional misrepresentation, and (3) conversion.

            On November 27, 2023, pursuant to this Court’s Order to Show Cause re: Failure to File Proof of Service, Plaintiff filed proof of personal service on Defendant Paul Kwak. This proof of service indicates that Leroy Richardson, who is not a registered California process server, personally served Defendant on August 14, 2023. Plaintiff has not filed any other proof of service indicating service on any other named Defendant.

            Also on November 27, 2023, Plaintiff filed a Request for Entry of Default / Default Judgment as to Defendant.

            At the hearing on November 29, 2023, this Court set a hearing on the Order to Show Cause re: Default Judgment for March 13, 2024. The Court ordered Plaintiff to file its default judgment prove-up package with the Court on or before February 13, 2024.

            On February 13, 2024, this Court continued the hearing on the Order to Show Cause re: Default Judgment until June 5, 2024.

            The Plaintiff’s counsel failed to prepare and file the default judgment packet and failed to make an appearance at the June 5, 2024 hearing. Accordingly, at the June 5, 2024 hearing, this Court ordered Plaintiff’s Complaint dismissed without prejudice.

            Plaintiff now moves to vacate this Court’s Order of Dismissal.

Legal Standard

            The court has broad discretion to vacate the entry of default, default judgment or a dismissal, but that discretion can be exercised only if the defendant establishes a proper ground for relief, by the proper procedure and within the set time limits.¿Pursuant to Code of Civil Procedure §473(b), a motion to set aside/vacate cannot be brought more than six (6) months after the entry of default or dismissal and must be made within a “reasonable time” if discretionary relief is sought.

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 of fault attesting to his/her mistake, inadvertence, surprise or neglect, the court “shall” vacate the resulting default, default judgment or dismissal. (Code Civ. Proc. § 473(b).) The only limitation is that the court may deny relief if it finds that the default, default judgment or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise or neglect, but that the attorney is attempting to “cover up” for his/her client. (Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816.) If the attorney is willing to take the blame and pay the costs, the court must set aside the entry of default, default judgment or dismissal.   

Discussion

            First, the motion is timely made within six (6) months. The Court entered its order dismissing Plaintiff’s Complaint on June 5, 2024. Plaintiff filed the instant motion to vacate the Court’s order of dismissal less than two (2) months later, on August 1, 2024.

            Further, Plaintiff’s Counsel, Jisoo Hwang, filed a declaration in support of Plaintiff’s motion that accepts full responsibility for the mistake or inadvertence that caused this Court to dismiss Plaintiff’s Complaint. (Hwang Decl., ¶ 5.) Plaintiff’s Counsel states that he failed to appear for the Order to Show Cause hearing set for June 5, 2024 because of a calendaring mistake. (Hwang Decl., ¶ 3.) Plaintiff’s Counsel also states that he “further failed to file default judgment packet [sic] against two defendants, PAUL KWAK and MICHELLE KWAK.” (Id., ¶ 4.) Plaintiff’s counsel requests the Court to vacate the order of dismissal and allow Plaintiff to file a proposed default judgment packet. (Id., ¶ 7.)

            The Court finds that Plaintiff’s Counsel’s declaration is sufficient to warrant mandatory relief under 473(b). Accordingly, the Court GRANTS Plaintiff’s motion vacate the Court’s order to dismiss Plaintiff’s Complaint.

It is so ordered.

Dated: November     , 2024

   Hon. Jon R. Takasugi
   Judge of the Superior Court