Case Number: 19STCV44758 Hearing Date: February 01, 2021 Dept: 17
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 17
TENTATIVE RULING
DO WOO KIM, et al.
vs.
JOON CHUL PARK, et al.
Defendants. |
Case No.: 19STCV44758
(Related to: 19STCP02628; 19STCP04605; 19STCV16827
Hearing Date: February 1, 2021 |
Plaintiffs’ motion to set aside the 8/6/2020 dismissal is GRANTED.
On October 5, 2020, Do Woo Kim, Do Rim Kim, and the Wilton Korean Presbyterian Church in Los Angeles filed a second amended complaint (SAC) against Joon Chul Park, Mary S. Cho, Jong Soon Cho, Hyun Jong Han, Marian K. Lee aka Kyung Mi Lee, Young Shin Yoon, Joon Chul Park, Un Young Kim, Jonathan Kim, James Kim, and Sharon Kyoung Ok, alleging: (1) declaratory relief—injunctive relief; (2) conversion; (3) negligence; (4) negligent infliction of emotional distress; and (5) intentional infliction of emotional distress.
Now, Plaintiffs Do Rom Kim and Wilton Presbyterian Church (collectively, Plaintiffs) move the Court to set aside their accidental dismissal of Plaintiff’s second cause of action.
Legal Standard
Code of Civil Procedure (CCP) section 473, subdivision (b) provides:
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 mandatory relief provision of Code of Civil Procedure section 473 subs. (b) provides, in part:
Notwithstanding any other requirements of this section, the 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…, or (2) resulting default judgment or dismissal entered….
Discussion
Plaintiffs contend that the dismissal of their second cause of action was based on attorney error. Specifically, Plaintiffs explain:
On 8/6/2020, attorney David Y. Nakatsu, in an effort to simplify the case dismissed certain parties as to the 2nd, 3rd, 4th and 5th causes of action. The 2nd cause of action for Conversion was not meant to be included on this list as it is the heart of case 19STCV44758 before the court. Due to attorney error, this attorney included the 2nd cause of action on his request for dismissal by accident.
This error was discovered in September, and counsel attempted to file a notice of errata on 9/21/20. However, a notice of errata is insufficient to reverse an entered dismissal of a cause of action. Counsel discovered that the notice of errata had been rejected on 11/27/2020, and immediately prepared this CCP 473, subdivision (b) motion.
Plaintiffs’ motion was accompanied by a corrected copy of the Request for Dismissal. Plaintiff also submitted a declaration from Mr. Nakatsu in which he takes responsibility for the error, and explains that he accidentally included the second cause of action in his request for dismissal, despite only having intended to dismiss the third, fourth, and fifth causes of action.
Based on the submitted evidence, the Court is persuaded that the dismissal of the second cause of action was the result of a reasonable mistake. (CCP § 473(b).) Accordingly, the Court will exercise its discretion to set aside the 8/6/2020 dismissal. Given that Defendants currently have a pending demurrer, Defendants’ request that they be able to file an additional demurrer to the newly reinstated second cause of action is granted. Plaintiffs are to file the corrected Request for Dismissal immediately.
It is so ordered.
Dated: January , 2021
Hon. Jon R. Takasugi
Judge of the Superior Court