On 11/29/2017 KWOK YEE filed a Contract - Other Contract lawsuit against HUA MAO. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is GEORGINA T. RIZK. The case status is Pending - Other Pending.
Pending - Other Pending
Stanley Mosk Courthouse
Los Angeles, California
GEORGINA T. RIZK
GALLERY OTTOMAN ART
AMERICAN BELLISSIMA CORPORATION
LU TONY MING
SIGELMAN PAUL S
4/12/2018: Certificate of Mailing for - Minute Order (Hearing on Motion to Compel responses to form interrogatories...) of 04/12/2018
7/18/2018: Motion for Terminating Sanctions
9/6/2018: Minute Order - (Hearing on Motion for Terminating Sanctions)
11/16/2018: Motion re: (name extension) - Notice of Motion to Withdraw or Amend Deemed Admission
11/16/2018: Motion for Leave to File a Cross-Complaint - Notice of Motion for Leave to File a Cross-Complaint
11/27/2018: Opposition (name extension) - Opposition to motion to withdraw or amend deemed admissions
12/18/2018: Certificate of Mailing for - Certificate of Mailing for Minute Order (Hearing on Motion - Other TO WITHDRAW OR AMEND DEEMED ADMISSIONS) of 12/18/2018
1/23/2019: Certificate of Mailing for - Certificate of Mailing for Minute Order (Court Order) of 01/23/2019
1/23/2019: Minute Order - Minute Order (Court Order)
4/17/2019: Declaration (name extension) - Declaration of Exhibit in Support of Previously Filed Motion
4/24/2019: Minute Order - Minute Order (Hearing on Motion for Leave to File a Cross-Complaint)
4/26/2019: Cross-Complaint - Cross-Complaint
5/1/2019: Summons - Summons on Cross Complaint
6/6/2019: Answer - Answer
12/29/2017: Proof of Service (not Summons and Complaint) - by Mail
12/19/2017: Proof of Personal Service
11/29/2017: Summons - on Complaint
11/29/2017: Notice of Case Assignment - Limited Civil Case
Hearingat 08:30 AM in Department 94 at 111 North Hill Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of ServiceRead MoreRead Less
Hearingat 08:30 AM in Department 94 at 111 North Hill Street, Los Angeles, CA 90012; Non-Jury TrialRead MoreRead Less
DocketAnswer; Filed by: Hua Mao (Defendant); American Bellissima Corporation (Defendant); As to: Kwok Yee (Plaintiff)Read MoreRead Less
DocketPursuant to written stipulation, Non-Jury Trial scheduled for 05/29/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 94 Not Held - Continued - Stipulation was rescheduled to 12/11/2019 08:30 AMRead MoreRead Less
DocketStipulation and Order Joint Application and Stipulation to Continue Trial; Filed by: Hua Mao (Defendant); American Bellissima Corporation (Defendant); As to: Kwok Yee (Plaintiff)Read MoreRead Less
DocketSummons on Cross Complaint; Issued and Filed by: American Bellissima Corporation (Cross-Complainant); Hua Mao (Cross-Complainant); As to: Kwok Yee (Cross-Defendant); Gallery Ottoman Art, (Cross-Defendant)Read MoreRead Less
DocketCross-Complaint; Filed by: American Bellissima Corporation (Cross-Complainant); Hua Mao (Cross-Complainant); As to: Kwok Yee (Cross-Defendant); Gallery Ottoman Art, (Cross-Defendant)Read MoreRead Less
DocketMinute Order (Hearing on Motion for Leave to File a Cross-Complaint)Read MoreRead Less
DocketHearing on Motion for Leave to File a Cross-Complaint scheduled for 04/24/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 94 updated: Result Date to 04/24/2019; Result Type to Held - Motion GrantedRead MoreRead Less
DocketDeclaration of Exhibit in Support of Previously Filed Motion; Filed by: Hua Mao (Defendant)Read MoreRead Less
DocketAnswer; Filed by: Hua Mao (Defendant)Read MoreRead Less
DocketProof of Personal Service; Filed by: Kwok Yee (Plaintiff); As to: Hua Mao (Defendant); Service Date: 12/04/2017; Service Cost: 64.00; Service Cost Waived: NoRead MoreRead Less
DocketUpdated -- Summons on Complaint: Name Extension changed from on Complaint to on ComplaintRead MoreRead Less
DocketComplaint; Filed by: Kwok Yee (Plaintiff); As to: Hua Mao (Defendant)Read MoreRead Less
DocketCivil Case Cover Sheet; Filed by: Kwok Yee (Plaintiff)Read MoreRead Less
DocketSummons on Complaint; Issued and Filed by: ClerkRead MoreRead Less
DocketNotice of Case Assignment - Limited Civil Case; Filed by: ClerkRead MoreRead Less
DocketCase assigned to Hon. Georgina T. Rizk in Department 77 Stanley Mosk CourthouseRead MoreRead Less
DocketNon-Jury Trial scheduled for 05/29/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 77Read MoreRead Less
DocketOrder to Show Cause - Failure to File Proof of Service scheduled for 12/02/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 77Read MoreRead Less
Case Number: 17STLC04248 Hearing Date: November 19, 2019 Dept: 94
(CCP § 389)
MOTION TO DISMISS FOR FAILURE TO JOIN INDISPENSABLE PARTY
The court considers Yee’s motion to be a motion for judgment on the pleadings for lack of subject matter jurisdiction. (CCP § 438(c)(1)(B)(i).) Yee has not cited no other authority to bring this motion other than CCP § 389 and cases interpreting the indispensable party requirement. Section 389 on its face does not authorize the filing of a motion, and Yee has not asserted otherwise.
Cross-defendant’s motion is DENIED. The purported indispensable party, Gallery Ottoman Art, is already named as a party in the cross-complaint.
OPPOSITION: Filed as of Nov. 6, 2019
REPLY: None filed as of Nov. 13, 2019
On November 29, 2017, Plaintiff Kwok Yee filed the complaint.
On April 26, 2019, Defendants/Cross-complainants Hua Mao and American Bellissima Corporation (“Cross-complainants”) filed a cross-complaint against Plaintiff/Cross-defendant Kwok Yee (“Yee”), Cross-defendant Gallery Ottoman Art, and Roes 1 to 20.
On September 23, 2019, Yee filed an answer to the cross-complaint.
On October 23 and 29, 2019, Cross-complainants unsuccessfully filed a request for entry of default against Gallery Ottoman Art.
On October 9, 2019, Yee filed this motion. On November 6, 2019, Cross-complainants filed the opposition. No reply has been filed.
II. Legal Standard
Code of Civil Procedure section 389 provides, in-part:
(a) A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party.
(b) If a person as described in paragraph (1) or (2) of subdivision (a) cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed without prejudice, the absent person being thus regarded as indispensable. The factors to be considered by the court include: (1) to what extent a judgment rendered in the person's absence might be prejudicial to him or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person's absence will be adequate; (4) whether the plaintiff or cross-complainant will have an adequate remedy if the action is dismissed for nonjoinder…..
Yee moves to dismiss the cross-complaint on the ground that Cross-complainants have failed to join an indispensable party, Gallery Ottoman Art.
Initially, the court considers two procedural issues. These procedural issues arise because Yee’s motion is effectively a motion for judgment on the pleadings for lack of subject matter jurisdiction.
First, the court determines Yee did not waive his objection for lack of subject matter jurisdiction, even though Yee filed his answer to the cross-complaint before this motion. The failure to join an indispensable party deprives the court of subject matter jurisdiction. (CCP § 389(b); Galdje v. Darwish (2003) 113 Cal.App.4th 1331, 1343 [“the court cannot even proceed to adjudicate the rights of the party before it because personal jurisdiction over an indispensable party is necessary for jurisdiction of the subject matter.”] some quotations omitted and emphasis in original.) A motion for judgment on the pleadings may be made for lack of subject matter jurisdiction. (CCP § 438(c)(1)(B)(i).) Cross-complainants do not address this issue.
Second, Yee failed to satisfy the meet and confer requirement. (Code Civ. Proc., § 439.) Yee did not file a declaration stating a meet and confer had occurred or that Yee attempted a meet and confer. But, Cross-complainants do not raise this issue. Therefore, the court overlooks this procedural defect.
Accordingly, the court proceeds to the merits.
Here, the cross-complaint is already brought against Gallery Ottoman Art. Thus, the motion is moot because Gallery Ottoman Art is already named as a party. (CCP § 389(a) [“If [an indispensable party] has not been so joined, the court shall order that he be made a party.].)
It appears Cross-complainants are attempting to enter default against Gallery Ottoman Art. Yee provides no authority that a defaulted party to the pleading would not be joined to the action for purposes of the indispensable party requirement under CCP section 389. Also, Yee does not show Gallery Ottoman Art cannot be joined as a party.
IV. Conclusion & Order
In light of the foregoing, the Motion is DENIED.
The court sets OSC re entry of default against Cross-defendant Gallery Ottoman Art on MARCH 24, 2020 AT 10:30 AM IN DEPT. 94. The court notes that Cross-complainants have unsuccessfully attempted twice to enter default against Gallery Ottoman Art for failure to include a proof of service of the cross-complaint with the entry of default request. If Cross-complainants fail to enter default against Gallery Ottoman Art by failing to serve the cross-complaint on it, the court will permit Yee to renew his motion for lack of subject matter jurisdiction based on failure to join indispensable party. Cross-complainants cannot avoid the indispensable party requirement by naming Gallery Ottoman Art in the cross-complaint but failing to serve the cross-complaint on it.
Moving party is ordered to give notice.
Parties who intend to submit on this tentative must send an email to the Court at SMCdept94@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.