Judge: Michael E. Whitaker, Case: 24SMCV02509, Date: 2025-04-02 Tentative Ruling

Case Number: 24SMCV02509    Hearing Date: April 2, 2025    Dept: 207

TENTATIVE RULING

 

DEPARTMENT          207

HEARING DATE       April 2, 2025

CASE NUMBER        24SMCV02509

MOTION                    Vacate Default

MOVING PARTY      Defendant Sungchil Baek

OPPOSING PARTY   Plaintiff Ceragem International, Inc.

 

MOTION

 

This case arises over an employment dispute.  On May 28, 2024, Plaintiff Ceragem International, Inc. (“Plaintiff”) brought suit against Defendants Sungchil Baek (“Baek”) and Hong Min Kim (“Min”) alleging four causes of action for (1) breach of contract; (2) fraud and deceit; (3) conversion; and (4) common counts.

 

The proof of service indicates Baek was served with the summons and complaint by substitute service on June 3, 2024, and default was entered on August 6, 2024.

 

On February 5, 2025, Baek filed the instant motion to vacate the entry of default.  Plaintiff opposes the motion.

 

ANALYSIS

 

                          I.          DISCRETIONARY AND MANDATORY RELIEF

 

“Proceeding to judgment in the absence of a party is an extraordinary and disfavored practice in Anglo–American jurisprudence:  The policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party, who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary.”  (Au-Yang v. Barton (1999) 21 Cal.4th 958, 963 [cleaned up].) 

 

Code of Civil procedure section 473 “includes a discretionary provision, which applies permissively, and a mandatory provision, which applies as of right.” (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25 (hereafter Minick).)  “Section 473 is a remedial statute to be “applied liberally” in favor of relief if the opposing party will not suffer prejudice.  Because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.  Unless inexcusable neglect is clear, the policy favoring trial on the merits prevails.”  (Minick, supra, 3 Cal.App.5th at p. 24 [cleaned up].) 

 

The party or the legal representative must seek such relief “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Ca.App.4th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”]).  “The six-month limit is mandatory; a court has no authority to grant relief under section 473, subdivision (b), unless an application is made within the six-month period.”  (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340, citations omitted.) 

 

A.    DISCRETIONARY RELIEF

 

Per Code of Civil Procedure section 473, subdivision (b), a court may “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.”

 

B.    MANDATORY RELIEF

 

Notwithstanding any other requirements of this section, the 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.

 

(Code Civ. Proc., § 473, subd. (b).)  “In considering whether the trial court properly denied relief under section 473(b), the first question is the sufficiency of defendants' showing of attorney fault, if believed, to trigger the mandatory relief provisions of that statute.”  (Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4th 868, 896, disapproved on other grounds by Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830 (hereafter Standard).)  “Under section 473(b), a party is entitled to relief from a default and resulting judgment whenever, on timely application for relief, his attorney ‘attest[s] to his or her mistake, inadvertence, surprise, or neglect’ in connection with the default or the judgment.”  (Ibid.) 

 

In support of the motion, Baek advances the Declaration of Jisoo Hwang, counsel for Baek (“Hwang”), which provides:

 

2. Defendant SUNGCHIL BAEK diligently retained me to represent him on June 22, 2024.

 

3. Due to my fault, mistake, surprise, inadvertence, and neglect, I failed to timely prepare and file a responsive pleading to the Complaint.

 

4. The Court entered default against my client SUNGCHIL BAEK on August 06, 2024.

 

5. Because the entry of default was due to my mistake, inadvertence, surprise or excusable neglect, I respectfully request that this Court would order to vacate the entry of default.

 

(Hwang Decl. ¶¶ 2-5.)  Thus, Baek has provided an attorney declaration of fault and the request is made within six months of the entry of default, making the requested relief mandatory.

 

In opposition, Plaintiff argues that (1) the Hwang declaration is not credible because it does not include a copy of the retainer agreement and the prior hearing reservations on October 3, 2024 and December 21, 2024 for a motion to vacate the entry of default suggest either that  Hwang was not retained prior to the entry of default and/or intentionally delayed filing the motion to set aside until nearly six months after default was entered, maximizing the delay. 

 

In the alternative, Plaintiff requests that, to the extent the Court is inclined to grant Baek’s request, it impose $1,840 in fees and $17.77 in costs incurred in requesting the entry of default and to oppose the instant motion and $6,382.50 in fees and $17.77 in costs incurred preparing the default judgment package, which Plaintiff would not have incurred but for Baek’s delay in moving to vacate.

 

As for the credibility of the Hwang declaration, there is no requirement that counsel attach a copy of the retainer agreement.  As an officer of the court, Hwang has a duty of candor, and has represented under penalty of perjury that he was diligently retained on June 22, 2024, but failed to timely prepare and file a responsive pleading.  Moreover, the mere fact that Baek reserved two hearings before ultimately filing the instant motion is not indicia that the Hwang’s declaration is not credible.  The statute requires that the motion be brought within six months, and Baek has done so here.   Therefore, the Court will grant Baek’s motion. 

 

With respect to fees and costs requested by Plaintiff,

 

Whenever the court grants relief from a default, default judgment, or dismissal based on any of the provisions of this section, the court may do any of the following:

 

(A) Impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party.

 

(B) Direct that an offending attorney pay an amount no greater than one thousand dollars ($1,000) to the State Bar Client Security Fund.

 

(C) Grant other relief as is appropriate.

 

(Code Civ. Proc., § 473, subd. (c)(1).)  Because the statute expressly limits the penalty to $1,000, the Court does not find it appropriate to award a greater amount.  Therefore, the Court imposes the requested penalty in the amount of $1,000 against Hwang only.

 

CONCLUSION

 

            For the foregoing reasons, the Court grants Baek’s motion and vacates the default entered against Baek on August 6, 2024.  Baek shall file and serve a response to the complaint on or before April 16, 2025.

 

Further, the Court grants in part Plaintiff’s request for sanctions, and imposes a penalty in the amount of $1,000 against Jisoo Hwang, counsel for Baek, payable to Plaintiff, by and through counsel for Plaintiff, within twenty (20) days of notice of this Order.

 

On Court’s own motion, the Court advances and vacates as moot the Order to Show Cause re Entry of Default Judgment set for hearing on April 4, 2025. 

 

Further, the Court sets a Case Management Conference on July 1, 2025 at 8:30 A.M. in Department 207.  All parties shall comply with California Rules of Court, rules 3.722, et seq., regarding Initial and Further Case Management Conferences.  In particular, all parties shall adhere to the duty to meet and confer (Rule 3.724) and to the requirement to prepare and file Case Management Statements (Rule 3.725). 

 

            Plaintiff shall provide notice of the Court’s orders and file the notice with a proof of service forthwith. 

 

DATED: April 2, 2025                                                           ___________________________

Michael E. Whitaker

                                                                                          Judge of the Superior Court