Judge: Peter A. Hernandez, Case: 21PSCV01054, Date: 2022-11-22 Tentative Ruling
Case Number: 21PSCV01054 Hearing Date: November 22, 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. Defendant Daniel W. Kennedy, IV’s Motion for a Protective Order is DENIED as MOOT. Sanctions are awarded to D. Kennedy in the reduced amount of $511.65 and are payable within 30 days of the date of the notice of ruling.
3. See below.
Background
Plaintiff Claire He Yi (“Plaintiff”) alleges as follows:
1. Motion to Quash/Relief from Default [#1]
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.4th 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).
The instant motion originally came on calendar for hearing on October 18, 2022. The court issued a tentative ruling prior to the hearing date, which read as follows:
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.
The hearing date was continued to November 22, 2022, at Jin’s request; no further briefing was requested by either the parties or from the court. Accordingly, the original tentative ruling stands and the motion is denied.
2. Motion for Protective Order
Legal Standard
“Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.420, subd. (a).)
The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: . . . (2) That the deposition be taken at a different time.” (Code Civ. Proc., § 2025.420, subd. (b)(2).)
Discussion
D. Kennedy moves the court for a protective order to require that his deposition be taken at a different time. D. Kennedy also seeks sanctions against Plaintiff and her counsel in the amount of $1,561.65.
On June 23, 2022, a “Notice of Deposition of Defendant Daniel Kennedy IV” was unilaterally served, wherein the deposition was scheduled for July 14, 2022. (Li Decl., ¶ 2.) On June 27, 2022, D. Kennedy’s counsel Bin Li (“Li”) advised Plaintiff’s counsel Long Liu (“Lui”) that D. Kennedy and his family would be on vacation until early August 2022, that he would be on vacation until the middle of August and that the deposition could proceed any time after August 20, 2022. (Id.) That same day, Liu declined to postpone the deposition to the end of August and proposed the following dates: July 18, 20, 22 or 27. (Id.) Li, in return, reiterated that D. Kennedy would not be there in July and that he himself would be on vacation from the beginning of August to August 15. (Id.) On July 6, 2022, Li sent Liu a letter wherein he requested that D. Kennedy be deposed on a different date and requested that Liu provide him with post-August 15, 2022 dates by July 8, 2022. (Id., ¶ Exh. B.) Li sent a follow-up email on July 8, 2022, expressly advising that a motion for protective order would be filed on July 11, 2022 if no response was received. (Id., ¶ 3, Exh. C.) The instant motion followed on July 11, 2022.
The court determines that an adequate meet and confer was conducted prior to the filing of the motion. The motion, however, is denied as moot, as the scheduled July 14, 2022 deposition date has long since passed.
Sanctions
D. Kennedy seeks sanctions against Plaintiff and Plaintiff’s counsel in the amount of $1,561.65 [calculated as follows: 2 hours preparing motion, plus 1 hour preparing reply and attending hearing at $500.00/hour, plus $61.65 filing fee.]
Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the motion is $511.65 (i.e., 1.5 hours at $300.00/hour, plus $61.65 filing fee/costs). Sanctions are payable within 30 days of the date of the notice of ruling.
3. Motion for Relief from Default [#2]
Jin moves the court for relief from default pursuant to Code of Civil Procedure § 473, subdivision (b) based on attorney affidavit of fault.
The court considers the instant motion to be improper, inasmuch as it constitutes a “second bite at the apple;” that is, Plaintiff filed the instant motion on October 25, 2022 after having had the benefit of reviewing the court’s previous tentative ruling on Motion #1, which was issued in advance of the original October 18, 2022 hearing. Motion #1 has never been withdrawn and is still pending. The “Tentative Rulings” section of the Los Angeles Superior Court’s website for this department reads, in pertinent part, as follows: “The Tentative Ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question. No such filings will be considered by the Court in the absence of permission first obtained following ex parte application therefore.” Plaintiff did not seek court permission to file the instant motion prior to doing so.
Accordingly, the court on its own motion and pursuant to its inherent authority will order the amended motion stricken.
Regardless, the court notes that the instant motion seeks mandatory relief pursuant to attorney affidavit of fault (See Li Decl., ¶ 3 [i.e., “[t]hrough an error of calendaring and through no fault of Defendant, I failed to file an answer to complaint. Under Code of Civil Procedure § 473(b) I attest to my mistake, inadvertence, surprise, or neglect”]) whereas Motion #1 sought relief on the basis that service of the summons and complaint was improper and/or that Jin did not receive actual notice (See Motion #1, 3:10-12 [“Defendant did not respond because she was and is a resident of Harbin City, Heilongjiang Province, China and had left the United States after a family visit on August 10, 2021”].) These positions appear contradictory. Further, the evidence suggests that Li was retained after Jin’s default was already entered. Jin’s default was entered on August 16, 2022. Exhibit A to Jin’s declaration filed in conjunction with Motion #1 is comprised of a September 7, 2022 email from Li to Liu, wherein Li states “My firm was just retained by Hongmei Jin.” (Emphasis added). A court may deny relief notwithstanding the fact that an attorney affidavit of fault was filed if it finds “that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” The motion fails on this basis.
The court declines to entertain Plaintiff’s request for Code of Civil Procedure § 128.5 sanctions, inasmuch as this must be requested via a separate motion. Moreover, the court acknowledges that such contradictory positions taken by Jin may require a further response by this court.