Judge: Robert B. Broadbelt, Case: 19STCV13450, Date: 2023-04-10 Tentative Ruling
Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.
Case Number: 19STCV13450 Hearing Date: April 10, 2023 Dept: 53
Superior Court of California
County of Los Angeles – Central District
Department
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[Tentative]
Order RE: defendants’ motion for leave to file answer
to second amended complaint |
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MOVING PARTIES:
Defendants Orange Trim, Inc.
and Soon Pill Kim
RESPONDING PARTY: Plaintiff Ivan Mendoza
Motion for Leave to File Answer to Second Amended Complaint
The court considered the moving and opposition papers filed in
connection with this motion. No reply
papers were filed.
BACKGROUND
Plaintiff Ivan Mendoza (“Plaintiff”) filed the operative Second Amended
Complaint in this action against defendants Orange Trim, Inc. (“Orange Trim”)
and Soon Pill Kim a/k/a Steve Kim (“Kim”) (collectively, “Defendants”) on
October 6, 2022, pursuant to the parties’ joint stipulation and the court’s
August 9, 2022 order granting leave to file the Second Amended Complaint.
Defendants now move the court for an order granting them leave to file
an answer to Plaintiff’s Second Amended Complaint.
The court may, in its discretion, “after notice to the adverse party,
allow, upon any terms as may be just, an amendment to any pleading or
proceeding in other particulars; and may upon like terms allow an answer to be
made after the time limited by this code.”
(Code Civ. Proc., § 473, subd. (a)(1).)
First, the court denies the motion as to defendant Kim.
On November 3, 2022, the court granted Plaintiff’s motion for
terminating sanctions against Kim and ordered that his answer to the First
Amended Complaint was stricken. (Nov. 3,
2022 Order, pp. 3:25-4:2.) Kim has not moved
for relief from this order. The court therefore
denies Kim’s request for leave to file an answer to the Second Amended
Complaint in light of the court’s order imposing terminating sanctions against
him, and Kim’s failure to move for relief from that order.[1]
The court further notes that Defendants filed an answer to the Second
Amended Complaint on January 17, 2023.
As set forth above, the court imposed terminating sanctions against Kim
and ordered that his answer to the First Amended Complaint was stricken. The court finds that Kim’s January 17, 2023
answer to the Second Amended Complaint is not drawn or filed in conformity with
the court’s November 3, 2022 order, and therefore orders that the answer, as
filed by Kim, is stricken. (Code Civ.
Proc., § 436, subd. (b).)
Second, the court finds that it is in furtherance of justice to allow
Orange Trim to file an answer to Plaintiff’s Second Amended Complaint and
therefore grants Orange Trim’s motion.
(Code Civ. Proc., § 473, subd. (a)(1).) The court deems Orange Trim’s answer filed as
of the date of January 17, 2023.
In opposition, Plaintiff points out that Orange Trim seeks to raise an
affirmative defense as to the seventh cause of action. (Mot., p. 2:7-14 [Defendants’ answer “will
include an affirmative defense with respect to the SAC’s seventh cause of
action”].) However, the court granted
Plaintiff’s motion for summary adjudication as to this cause of action. (Nov. 3, 2022 Order, p. 15:20-22 [granting
motion for summary adjudication as to seventh cause of action].) Although the court will permit Orange Trim to
file an answer to the Second Amended Complaint, the court notes that Orange
Trim’s answer has no effect on the court’s October 31, 2022 order granting
summary adjudication as to this cause of action.
ORDER
The court denies defendant Soon Pill Kim’s motion for leave to file
answer to second amended complaint.
The
court grants defendant Orange Trim, Inc.’s motion for leave to file
answer to second amended complaint. The
court orders that Orange Trim, Inc.’s answer to the
Second Amended Complaint, filed on January 17, 2023, is the operative answer.
The
court orders defendant Orange Trim, Inc. to give notice of this ruling.
IT IS SO ORDERED.
DATED:
_____________________________
Robert
B. Broadbelt III
Judge
of the Superior Court
[1]
The court notes that, although Plaintiff has filed Requests for Entry of
Default Judgment as to Kim, as ordered by the court in its November 3, 2022 order,
the clerk has not yet entered default against Kim.