Qing Jin v. Robert Chan, et al.

MOTION TO SET ASIDE DEFAULT

 

MOVING PARTY: Defendant Yalin Z. Chan

RESPONDING PARTY(S): Plaintiff Qing Jin

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Qing Jin hired real estate agent/broker Defendant Yalin Z. Chan (aka Cathy Chan) of Navigator’s Real Estate, Inc., to assist in Plaintiff’s purchase of a property at 5468 Baldwin Ave, Temple City, CA. Plaintiff alleges after purchasing the house in April 2021, Defendant Chan recommended her husband, Robert Chan and his company West Los Angeles Specialized Construction Group, Inc., as a licensed general contractor to renovate the house. Plaintiff alleges Defendants Robert Chan and Yalin Chan falsely represented that there was no need to obtain building permits from Temple City because there was an existing permit on the house—in fact, no current permit had been obtained.

Plaintiff and Defendant Robert Chan then negotiated a $130,000 verbal contract for the remodeling job. After paying Defendants $90,000 and undergoing substantial renovations, Temple City ordered Plaintiff to remove all of the non-permitted construction.  Defendants, however, still seek the remaining $40,000 purportedly owed under the contract and have filed a mechanics lien on the property. Plaintiff brings causes of action for (1) breach of contract, (2) negligence, (3) unfair trade practices, (4) unjust enrichment, (5) quiet title, (6) violations of the Contractor’s State License Law, and (7) violation of Penal Code section 496.

The clerk entered Defendant Yalin Chan’s default on October 14, 2022. Defendant now moves under CCP Section 473(b) to set aside the default.  Plaintiff opposed.

TENTATIVE RULING

Defendant’s motion for relief under CCP Section 473(b) is GRANTED.

Defendant is to file a responsive pleading to the Complaint within 30 days.

Defendant’s counsel is ordered to pay Plaintiff’s counsel $1,000.00 in “compensatory legal fees,” within 45 days, pursuant to the mandatory provisions of CCP § 473 (b).

A Case Management Conference is set for June 9, 2023, at 8:30 am.

Plaintiff to give notice, unless waived.

DISCUSSION

Motion for Relief Under CCP Section 473(b)

A. Legal Standard

In pertinent part, section 473, subdivision (b) provides: “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.... 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.” 

“Section 473, subdivision (b) provides for two distinct types of relief. Under the discretionary relief provision, on a showing of ‘mistake, inadvertence, surprise, or excusable neglect,’ the court has discretion to allow relief from a ‘judgment, dismissal, order, or other proceeding taken against’ a party or his or her attorney. Under the mandatory relief provision, on the other hand, upon a showing by attorney declaration of ‘mistake, inadvertence, surprise, or neglect,’ the court shall vacate any ‘resulting default judgment or dismissal entered.’”  (Leader v. Health Indus. of Am., Inc. (2001) 89 Cal. App. 4th 603, 615–16.)

B. Analysis

Defendant Yalin Chan moves for mandatory relief from default under Code of Civil Procedure Section 473, subdivision (b). 

Defendant’s counsel, James E. Klinkert, attributes the default to a miscommunication between himself and his client. In his Declaration, counsel states:

Based on my communication with my client this past fall, I mistakenly gained the understanding that my client had not been served with the summons and complaint in this matter. I understand my client’s primary language is Chinese. I don't speak Chinese. I freely admit I am at fault for this failure in communication and the resulting entry of my client’s default in this matter.

(Klinkert Decl. ¶ 1.)

Counsel states he learned in December of 2022, however, that his client “had in fact been served and that her default had been entered in October.” (Id. ¶ 2.) 

Plaintiff does not oppose setting aside the default but filed an opposition “solely to request its mandatory attorney fees of $1,550 for work on the default of YALIN Z. CHAN and this Opposition.

Thus, finding the motion substantively unopposed, timely, and accompanied by an attorney affidavit of fault, Defendant’s Motion to Set Aside the Default is GRANTED.

C. Attorney’s Fees

Section 473(b) provides that “[t]he court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”

Defendant seeks $1,550.00 in attorney’s fees, reflecting 1.5 hours for “drafting, coordinating, and entering” the default, 1.0 hour to file the Opposition, an anticipated 30 minutes to appear at the Motion hearing, plus “$50 for Overnight Mail of the Opposition and e-filing fees.” (Song Decl. ¶¶ 5, 5.1)

This court finds the reasonable time spent to draft, coordinate, and enter the default, prepare the bare-bones opposition, and attend the hearing—for an experienced attorney billing at a rate of $500 per/hour—to be two total hours.  The $50 “overnight mailing fee” is not a reasonable item of costs.  Indeed, there was no need to even oppose this motion.

Accordingly, Defendant’s counsel is ordered to pay Plaintiff’s counsel $1,000.00 in “compensatory legal fees,” within 45 days, pursuant to the mandatory provisions of CCP § 473 (b).

IT IS SO ORDERED.

Dated:   February 10, 2023 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.