Judge: Stephen P. Pfahler, Case: 22STCV18540, Date: 2025-02-05 Tentative Ruling

Case Number: 22STCV18540    Hearing Date: February 5, 2025    Dept: 68

Dept. 68

Date: 2-5-25

Case #22STCV18540

Trial Date: Not Set

VACATE DISMISSAL

MOVING PARTY: Plaintiff, Kyung Baek

RESPONDING PARTY: Unopposed/Defendants, Evergreen Capital Assets, LP, et al.

RELIEF REQUESTED

Motion to Set Aside Dismissal

SUMMARY OF ACTION

Plaintiff Kyung Baek operated a certain restaurant on the ground floor of a six story commercial building located at 1543 West Olympic Blvd. The building is currently owned and/or managed by Defendants Evergreen Capital Assets, LP, and formerly owned by Defendants Bricks Hospitality Group, LLC, Union & Grattan Properties, LLC, Bon Kim or Boo Kim (both names appear in the operative complaint), and Yongsook Kim.

Plaintiff began leasing the restaurant in 2014. A fire “consumed” the building in April 2015. Plaintiff alleges Defendants collectively refuse to provide any updates regarding restoration of the premises and potential resumption of the lease.

On June 7, 2022, Plaintiff filed a complaint for Breach of Written Contract, Breach of Covenant of Good Faith and Fair Dealing, Breach of Covenant of Quiet Enjoyment, and Conversion. Defendant Evergreen Capital Assets, LP answered the complaint on April 5, 2023. On September 21, 2203, the court granted the “oral request for leave to file” an amended complaint “within 10 days.” On November 17, 2023, 61 days later, Plaintiff filed the first amended complaint Breach of Written Contract, Breach of Covenant of Good Faith and Fair Dealing, Breach of Covenant of Quiet Enjoyment, and Conversion. On February 7, 2024, Evergreen Capital Assets, LP answered the first amended complaint.

On February 7, 2024, the court set an OSC re: Sanctions following the failure of Plaintiff to appear for the case management conference. On March 21, 2024, following a second consecutive non-appearance by Plaintiff, the court ordered the complaint dismissed without prejudice.

RULING: Granted.

Plaintiff Kyung Baek brings a motion to vacate the dismissal of the action following two consecutive non-appearances for court hearings. Plaintiff moves to set aside the default on grounds of counsel mistake, inadvertence, excusable neglect by counsel. The court electronic filing system shows no opposition or reply on file at the time of the tentative ruling publication cutoff.

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.) The case was dismissed on March 21, 2024. The motion was filed on September 19, 2024, which is 182 days, or five months and 29 days of the dismissal entry date. The motion is therefore timely.

“[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 declaration of attorney N. Joe P. Inumberable represents the dismissal was the result a lack of awareness of the hearing date(s), and a subsequent series of health problems beginning in early 2024. [Declaration of N. Joe P. Inumberable.]

The motion is granted due to procedural compliance. The court finds both prior dilatory conduct in the late filing of the first amended complaint and delays to within two days of the cutoff of the deadline for filing of the instant motion without any accountability for the period upon return from the Philippines in March 2024 to the September 19, 2024, filing date of the motion justifies the imposition of sanctions. The court orders payment of $500 by counsel for Plaintiff to the State Bar Client Security Fund. (Code Civ. Proc., § 473, subd. (c)(1)(B).)

The court will set a Case Management Conference. 

Moving party to give notice.