Judge: Peter A. Hernandez, Case: 21PSCV01054, Date: 2022-10-18 Tentative Ruling

Case Number: 21PSCV01054    Hearing Date: October 18, 2022    Dept: O

1.         Defendant Hongmei Jin’s Motion to Quash Service of Process or in the Alternative for Relief from Default is DENIED.

2.         Counsel for Defendant Gosdom Entertainment, Inc.’s (i.e., Humphrey, Berger &

Associates and Seropian & Associates) Motion to Be Relieved as Counsel is DENIED

without prejudice.

Background   

Plaintiff Claire He Yi (“Plaintiff”) alleges as follows: Plaintiff loaned $400,000.00 to Daniel W. Kennedy, IV (“D. Kennedy”) and Juliet Ru-Yi Chung (“Chung”), by and through Kennedy Capital Partners International, Inc. (“Kennedy Capital”), to purportedly fund the production of television and film projects. Plaintiff has not been repaid.

On December 16, 2021, Plaintiff filed a complaint, asserting causes of action against D. Kennedy, Chung, Diana Yi Wei Cheng (“Cheng”), Rosemary Kennedy (“R. Kennedy”), Vanessa Yao Guo (“Guo”), Hongmei Jin (“Jin”), Kennedy Capital, Gosdom Inc., Gosdom Entertainment Inc., Gosdom Entertainment LLC, Gosdom Entertainments, LLC, Base FX, Inc., Production Capital LLC, Production Capital Corp., Production Capital Entertainment, Inc., Kevin W. Robl (“Robl”), Will Yun Lee (“Lee”) and Does 1-50 for:

1.                  Fraud—Intentional Misrepresentation

2.                  Fraud—Negligent Misrepresentation

3.                  Fraud—Concealment

4.                  Fraud—False Promise

5.                  Common Law Conspiracy

6.                  Breach of Written Contract (Note)

7.                  Breach of the Implied Covenant of Good Faith and Fair Dealing

8.                  Promissory Estoppel

9.                  Breach of Fiduciary Duty

10.              Fraud—Constructive

11.              Conversion

12.              Account Stated

13.              Money Had and Money Received

14.              Unfair Business Practices (Business & Professions Code § 17200 et seq.)

15.              Unjust Enrichment

On February 10, 2022, Production Capital LLC’s, Production Capital Entertainment, Inc.’s and Production Capital Corp.’s defaults were entered. On February 18, 2022, Robl’s default was entered.

On March 28, 2022, Plaintiff dismissed Lee, without prejudice.

On June 16, 2022, Base Fx’s and Gosdom Entertainments, LLC’s defaults were entered. On August 16, 2022, Jin’s default was entered.

A Case Management Conference is set for November 14, 2022.

1.         Motion to Quash/Relief from Default

Legal Standard

“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 . . .” (Code Civ. Proc., § 473, subd. (b).)

“A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion. . . (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. . .” (Code Civ. Proc., § 418.10.)

“When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” (Summers v. McClanahan (2006) 140 Cal.App.4^th 403, 413 [quotation marks and citation omitted].)

Discussion

Jin moves the court for an order quashing the service of summons pursuant to Code of Civil Procedure § 418.10 on the basis of improper service or, in the alternative, relief from default pursuant to Code of Civil Procedure § 473, subdivision (b).

Jin’s alternative request must be entertained before the court may make a determination regarding quashing the service of summons. Jin seeks discretionary relief on the basis of “surprise.” “The term ‘surprise,’ as used in section 473, refers to ‘some condition or situation in which a party ... is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.’” (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 611, quoting Credit Managers Assn. v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166, 1173.) Jin, however, appears to be contending that service of the summons and complaint were improper and/or that she did not receive actual notice, which are Code of Civil Procedure § 473, subdivision (d) and § 473.5 arguments. The motion, then, is denied on this basis.