Judge: Stephen I. Goorvitch, Case: 19STCV43653, Date: 2022-10-10 Tentative Ruling

Case Number: 19STCV43653    Hearing Date: October 10, 2022    Dept: 39

JTX Group, Inc. v. Global Meat Federation, et al.
Case No. 19STCV43653

Order #1 of 2

Defendant Colony Capital’s Motion for Summary Judgment

Plaintiff requests a continuance in order to obtain discovery.  Plaintiff has scheduled a motion to compel further responses from Defendant to obtain bank records from Defendant for November 14, 2022, at 9:00 a.m.  Plaintiff has scheduled a motion to compel Jamal Dawood’s deposition for November 16, 2022, at 9:00 a.m.  Based upon the foregoing, the Court orders as follows:

1.         The Court advances both motions to November 10, 2022, at 9:00 a.m.

2.         The Court continues the instant motion for summary judgment and the trial setting conference to November 10, 2022, at 9:00 a.m.

3.         If the Court grants either or both motions, the Court will continue the hearing on the motion for summary judgment again and provide an opportunity for supplemental briefing.

4.         Plaintiff’s counsel shall provide notice and file proof of such with the Court. 

Order #2 of 2

Motion to Set Aside Defaults

Defendants David He, also known as Huijun He (“Defendant He”), as well as Ramada Realty, Inc., McSen Fund, LLC, and China Liaoning Dingxu Ecological Agriculture Development. Inc. (collectively, the “Entity Defendants”) move to set aside defaults.  Defendants were named in the original complaint and were served in December 2019.  Defendants were entered on December 15, 2020.  The instant motion was filed almost two years later, on August 10, 2022. 

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.” In addition, a court must vacate a default or dismissal when a motion for relief under Section 473, subdivision (b) is filed timely and accompanied by an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise or neglect “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).)  The party 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).) 

This motion is untimely because it was filed more than six months after defaults were entered.  Defendants cite Rappleyea v. Campbell (1994) 8 Cal.4th 975 for the proposition that “[a]fter six months from entry of default, a trial court may still vacate a default on equitable grounds even if statutory relief is unavailable.”  (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.)  However, Defendants have not shown grounds for equitable relief.  Defendants rely on the declaration of Defendant He, which states that Defendant Jacky Lo (“Lo”) promised to defendant Defendant He and his entities.  (Declaration of David He, ¶ 2.)  Therefore, Defendant He admits that he has been aware of this action and did nothing other than rely on an alleged promise by Lo to defend this action for two years.  (Declaration of David He, ¶ 4.)  Defendants have not shown that the default was the result of extrinsic fraud or mistake, or some other ground for equitable relief, such that the six-month time limit on motions to set aside default should not apply. 

Based upon the foregoing, Defendants’ motion to set aside default is denied.  Plaintiff’s counsel shall provide notice and file proof of such with the Court.