Judge: Stephen P. Pfahler, Case: 22STCV12566, Date: 2025-04-30 Tentative Ruling
Case Number: 22STCV12566 Hearing Date: April 30, 2025 Dept: 68
Dept.
68
Date:
4-30-25
Case
#22STCV12566
Trial
Date: N/A
VACATE DEFAULT
MOVING
PARTY: Defendant, Kap Moon
RESPONDING
PARTY: Plaintiff, Young Lim
RELIEF
REQUESTED
Motion
to Vacate Default
SUMMARY
OF ACTION
Plaintiff
Young Lim alleges defendant Kap Moon entered into an investment agreement
whereby Moon agreed to invest $100,000 Leading Town SDUS Inc. dba Music Café
Chorus. Plaintiff alleges the agreement was in fact with third party Kyonga
Nam, though the agreement attached to the complaint lists the name Jongju Na.
Notwithstanding,
Lim alleges the rights to enforcement of the agreement were assigned, and Lim
obtained a $27,000 judgment in a prior action. Lim alleges two other “related
cases” 19STCV14007 (Lim v. Moon. June 1, 2021, judgment in favor of Lim for
$27,000) and 19STCV08038 (Moon v. Na, et al. November 26, 2019, default
judgment entered in favor of Kap Moon against Sung Joo Na, Kyonga Nam, Jongju
Na, and Leading Town SDUS, Inc. for $1,098,518.99). Lim appears to now seek
execution on the judgment, and maintains Moon fraudulently continues to evade
collection.
On
April 14, 2022, Lim filed the instant action for Fraud, Fraudulent Interference
with Economic Advantage, Fraudulent Concealment, Fraudulent Abuse of Process,
and Fraudulent Malicious Prosecution. On November 9, 2022, Plaintiff filed a
first amended complaint.
On
April 20, 2023, the clerk entered a default against Moon. On August 25, 2023,
the court granted the motion to vacate the default on grounds of improper
service. On December 27, 2023, a second default was entered by the clerk
against Moon.
On
April 4, 2024, the court denied the motion of Moon to vacate the December 27,
2023, default on grounds of improper service. On April 9 and 10, 2024,
Plaintiff filed notices of related cases for 19STCV14007. On April 25, 2024,
the court entered a default judgment. the 19STCV14007 was originally filed in
Department 74. There is no indication the notice of related cases was filed in
this courtroom. An abstract of judgment was issued on May 30, 2024.
RULING: Granted.
Request
for Judicial Notice: Granted in Part/Denied in Part.
·
The
court takes judicial notice of the filed first amended complaint, and the
summons, but not the content of the pleading for the truth of the matter
asserted.
·
The
court declines to take judicial notice of the April 14, 2022 default, as no
such document exists in the court electronic record. The court takes judicial
notice of the March 23, 2023, April 20, 2023, April 25, 2023, filed defaults.
·
The
court declines to take judicial notice of any and all declarations, summaries
of the case.
·
The
court takes judicial notice of the entry of the default by the clerk on April
14, 2023. The court declines to take judicial notice of the June 1, 2024, filed
default as no such document exists.
·
The
court takes judicial notice of the existence of the minute orders, but not for
the content or truth of the matter stated.
Defendant/Judgment Debtor Kap Moon moves to presumably vacate
the December 27, 2023, entered default, and perhaps April 25, 2024, default
judgment, though no operative defaults are identified in the notice or points
and authorities. Moon moves for relief on grounds of a challenged “void”
judgment under Code of Civil Procedure section 473, subdivision (d). Moon
maintains former counsel “abandoned” the case, thereby leading to an
uncontested judgment.
Plaintiff/Judgment Debtor Lim in opposition and supplemental
opposition contends the motion fails to meet the standard for relief under Code
of Civil Procedure section 473, subdivision (b). Plaintiff Lim additionally
maintains the judgment is not void. Lim reiterates the validity of service.
Additionally, the subject motion was filed more than six months after the
default, and Defendant failed to submit any proposed responsive pleading.
Defendant/Judgment Debtor, now represented by counsel,
submitted a three (3) court day five (5) calendar late reply consisting of a
challenge to the sufficiency of the operative complaint, and maintains improper
service after the court granted the motion to quash. The court declines to
consider the untimely and new positions submitted in the reply.
Code
of Civil Procedure section 473 subdivision (b) provides in part: “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. Application for this relief shall be accompanied by a copy
of the answer or other pleading proposed to be filed therein, otherwise the
application shall not be granted, and shall be made within a reasonable time,
in no case exceeding six months, after the judgment, dismissal, order, or
proceeding was taken.”
“The six-month time limit for granting statutory relief is
jurisdictional and the court may not consider a motion for relief made after
that period has elapsed. (Citation.) The six-month period runs from entry of
default, not entry of judgment.” (Manson,
Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.) “[A] trial
court is obligated to set aside a default, default judgment,
or dismissal if the motion for mandatory relief (1) is filed within six months
of the entry of judgment, (2) ‘is in proper form,’ (3) is accompanied by
the attorney affidavit of fault, and (4) demonstrates that
the default or dismissal was in fact caused by
the attorney's mistake, inadvertence, surprise, or neglect.’” (Martin Potts & Associates, Inc. v.
Corsair, LLC (2016) 244 Cal.App.4th 432, 443.) The default being filed
on December 27, 2023, and the instant motion not filed until October 29, 2024,
renders any relief under section 473, subdivision (b) inapplicable.
Nevertheless, Moon actually moves for relief under Code of
Civil Procedure section 473, subdivision (d) regarding a void order. A trial court can set aside a judgment
pursuant to 473, subdivision (d) on a void judgment. (Talley v.
Valuation Counselors Group, Inc. (2010)
191 Cal.App.4th 132, 146.) “
The court record shows Moon executed a substitution of
attorney form, appearing in pro per from former counsel, Jacke Karpeles, on
October 29, 2024. The subject motion was filed on the same day. Again, the
court acknowledges new counsel now appearing on behalf of Moon.
Given the representation of Moon regarding the abandonment
of counsel and public policy favoring adjudication on the merits, the court
elects to sua sponte consider equitable relief. “[E]xtrinsic
mistake” constitutes “a term broadly applied when circumstances extrinsic to
the litigation have unfairly cost a party a hearing on the merits.” (Rappleyea v. Campbell (1994) 8 Cal.4th
975, 981.) “[E]xtrinsic mistake
exists when the ground ... is the excusable neglect of the defaulting party to
appear and present his claim or defense. If that neglect results in an unjust
judgment, without a fair adversary hearing, the basis for equitable relief on
the ground of extrinsic mistake is present. (Citation.)
Relief will be denied, however, if the complaining party's negligence permitted
the ... mistake to occur. (Citation.)” (Manson, Iver & York v. Black, supra, 176 Cal.App.4th at p. 47.) Circumstances
of extrinsic mistake include numerous examples, including: “when one party relies on another to defend (Citations); ... when a
mistake led a court to do what it never intended (Citation); when a mistaken
belief of one party prevented proper notice of the action (Citations); ... cases
involving ... mistaken belief as to immunity from suit (Citations). (Kulchar v. Kulchar (1969) 1 Cal.3d 467,
471-472.)
“‘To set aside
a judgment based upon extrinsic mistake one
must satisfy three elements. First, the defaulted party must demonstrate that
it has a meritorious case. Second[ ], the party seeking to set aside the
default must articulate a satisfactory excuse for not presenting a defense to
the original action. Last [ ], the moving party must demonstrate diligence in
seeking to set aside the default once ... discovered.’” (Rappleyea v. Campbell, supra, 8 Cal.4th
at p. 982.)
Since the equitable power of the court is being invoked, the
relief sought is subject to equitable defenses, including laches. Thus, relief
may be denied if it is shown that the moving party has been guilty of
unreasonable delay in seeking relief, causing prejudice to the opposing party.
(McCreadie v. Arques (1967) 248
Cal.App.2d 39, 46 [plaintiff would be prejudiced by having to prove matters 5
years old if judgment set aside].) The
greater the prejudice to the responding party, the more likely it is that the
court will determine that equitable defenses such as laches or estoppel apply
to the request to vacate a valid judgment. (Rappleyea
v. Campbell, supra, 8 Cal.4th
at p. 983.)
The validity of service and entry of the default and default
judgment are not under consideration. Again, the court will not address the new
positions submitted in the reply. If Moon alternatively seeks to pursue this
position, and would rather proceed on an invalid service position, Moon may
request this relief at the hearing. The judgment will remain intact and
collectible pending any new hearing date.
Otherwise, the court instead accepts the circumstances for
Moon not responding to the complaint after denial of the motion to quash
service, and the diligence in seeking relief upon discovery of attorney
abandonment. Lim expresses no basis of prejudice. The court finds the
underlying collection on the default judgment unfairly imposes a hardship on
Moon, thereby warranting adjudication on the merits and an opportunity to
present a defense. The court therefore GRANTS the motion to vacate on equitable
grounds.
The court orders Moon to file an answer to the
operative complaint within 10 days of this hearing. An answer will
prevent a third default from being entered and the court can deem the case at
issue. There will be no further
continuances of the deadline to answer the complaint.
Kap Moon to give
notice to all parties.