SOO JIN KANG VS WANG OK CHA

Tentative Rulings

Case Number: 19STLC07862    Hearing Date: February 20, 2020    Dept: 25

MOTION FOR TRANSFER OF VENUE

(CCP § 395(a))

TENTATIVE RULING:

Defendant Wang Ok Cha’s Motion is GRANTED. The action is transferred to the Superior Court of Orange County.

ANALYSIS:

1. Background

On August 28, 2019, Plaintiff Soo Jin Kang (“Plaintiff”) filed an action for personal injury, breach of good faith and fair dealing, and negligent infliction of emotional distress against Defendant Wang Ok Cha (“Defendant”).

On October 3, 2019, default was entered against Defendant. On December 10, 2019, Defendant filed a Motion to Set Aside Default, arguing that the proof of service incorrectly states Defendant was served by personal service instead of by substituted service, which would give Defendant additional time to file a responsive pleading. The Court vacated the default entered against Defendant on January 15, 2020 and ordered Defendant to file an answer within 30 days. (1/15/20 Minute Order.)

On October 4, 2019, Defendant filed the instant Motion for Order Transferring the Action to Orange County (the “Motion”). To date, no opposition or reply briefs have been filed.

1. Legal Standard

Code of Civil Procedure section 395 provides, “[e]xcept as otherwise provided by law and subject to the power of the court to transfer actions or proceedings as provided in this title, the superior court in the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action. If the action is for injury to person or personal property…, the superior court in either the county where the injury occurs…or the county where the defendants, or some of them reside at the commencement of the action, is a proper court for the trial of the action.” (Code Civ. Proc., § 395, subd. (a).)

A motion to transfer made on the ground that the action has been brought in the wrong or “improper” court must be made within the time permitted to file a responsive pleading, unless otherwise extended by stipulation or court order. (Code Civ. Proc., § 396b, subd. (a).)

1. Discussion

Here, pursuant to the Court’s January 15, 2020 Order, Defendant had until February 14, 2020 to file a responsive pleading to Plaintiff’s Complaint. (1/15/20 Minute Order.) As this Motion was filed prior to that, it is timely.

The instant action arises from a motor vehicle accident that occurred on February 27, 2019, on Keary Street and Garden Grove Boulevard in the City of Garden Grove, California. (Compl., ¶ 6; Mot., p. 3:9-10.) Although Plaintiff’s Complaint, filed in pro per, makes some allegations regarding Defendant’s fiduciary duty, breach of the covenant of good faith and fair dealing, and conspiracy, the gravamen of Plaintiff’s claims is personal injury arising from the February 27 accident.

Defendant states that she is currently a resident of Garden Grove in the County of Orange and was so at the time of the auto accident. (Mot., Cha Decl., ¶¶ 3-4.) Thus, as the accident that is the subject of this lawsuit occurred in Orange County and as Defendant resides in the same, pursuant to Code of Civil Procedure section 395, subdivision (a), venue for this action is proper in Orange County.

Having determined that this action was “commenced in a court having jurisdiction of the subject matter thereof, other than the court designated as the proper court for trial thereof,” transfer is appropriate under Code of Civil Procedure section 396b, subdivision (a).

1. Conclusion & Order

Based on the foregoing, Defendant Wang Ok Cha’s Motion is GRANTED. The action is transferred to the Superior Court of Orange County.

Moving party is ordered to give notice.

Case Number: 19STLC07862    Hearing Date: January 15, 2020    Dept: 94

Kang v. Cha

MOTION TO SET ASIDE DISMISSAL

(CCP § 473(d))

TENTATIVE RULING:

Defendant Wang Ok Cha’s Motion to Set Aside Default is GRANTED.

ANALYSIS:

Background

On August 28, 2019, Plaintiff Soo Jin Kang (“Plaintiff”) filed a complaint for personal injury, breach of good faith and fair dealing, and negligent infliction of emotional distress against Defendant Wang Ok Cha (“Defendant”).

On October 3, 2019, Plaintiff filed a proof of service stating Defendant was personally served with the summons and complaint. On that same date, default was entered against Defendant. On October 4, 2019, Defendant filed a Motion for an Order Transferring the Action to Orange County, currently scheduled for hearing on February 20, 2020.

On December 10, 2019, Defendant filed the instant Motion to Set Aside Default (the “Motion”). On January 8, 2020, Defendant filed a Notice of Non-Opposition to Defendant’s Motion. To date, no opposition or reply briefs have been filed.

Legal Standard & Discussion

1. CCP § 473(b)

“Section 473(b) provides for both discretionary and mandatory relief. [Citation.]” (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) Plaintiff seeks relief under the mandatory provision of the statute based on its counsel’s mistake, inadvertence, surprise, or neglect. The mandatory provision states in pertinent part:

“[T]he court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, 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).) (Italics added.)

“The purpose of this mandatory relief provision is to alleviate the hardship on parties who lose their day in court due to an inexcusable failure to act by their attorneys. [Citation.]” (Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 723, emphasis added.) Relief under Code of Civil Procedure section 473 subdivision (b) is also available to plaintiffs because dismissal is the “practical equivalent of a default judgment.” (Aldrich v. San Fernando Valley Lumber Co., Inc.

Defendant’s motion is timely. Plaintiff argues default resulted from counsel’s mistake, inadvertence, surprise, or excusable neglect. (Mot., p. 3.) Specifically, Defendant’s counsel states he made the reasonable mistake of assuming that the summons and complaint had been served by substituted service because Defendant’s roommate had been given a copy of the documents, which were later received in the mail. (Id., Vardanyan Decl., ¶ 6.) Based on this, counsel believed that Defendant had 40 days to respond and thus that his October 4, 2019 motion to transfer the action was timely filed. (Id., ¶ 10.) However, Plaintiff’s proof of service, which was not filed until October 3, 2019, alleges Defendant was served by personal service. (8/28/19 Proof of Service.) Defendant did not respond to the action within 30 days as required when served by personal service. Defendant’s counsel received notice of Plaintiff’s Request for Entry of Default by mail on October 21, 2019. (Mot., Vardanyan Decl., ¶ 12.)

Because this motion is made pursuant to the mandatory provision of Code of Civil Procedure section 473, subdivision (b), the Court has no discretion but to grant Defendant’s Motion.

Conclusion & Order

For the foregoing reasons, Defendant Wang Ok Cha’s Motion to Set Aside Default is GRANTED.

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.