Case Number: TC028641 Hearing Date: June 28, 2018 Dept: A

# 7. Dae Won Hong v. Everlyn’s Family, Inc., et al.

Case No.: TC028641

Matter on calendar for: motion to vacate judgment

Tentative ruling:

I. Background

This action arises from a commercial lease. Plaintiff sued defendants when defendants defaulted on their lease agreement for the property at 2116 N. Santa Fe Ave., Compton, CA 90222. On December 29, 2016, the parties signed a stipulation which allegedly contained rent concessions as well as an additional five-year lease option. The defendants were given until January 5, 2017 to consult with an attorney and rescind the agreement. Defendants failed to comply with the stipulation and judgment against them was entered on March 29, 2018, for $126,267.50.

Defendant Ok Joo Kim moves to vacate the judgment as to her. Plaintiff opposes.

II. Standard

CCP § 473(b) allows the court to relieve a party from judgment for that party’s mistake, inadvertence, surprise, or excusable neglect. Mistake of fact is when a person understands facts to be other than they are. (Hodge Sheet Metal Products v. Palm Springs Riviera Hotel (1961) 189 Cal.App.2d 653.) Surprise denotes a condition or situation in which a party “is unexpectedly placed… without any default or negligence of his own… which ordinary prudence could not have guarded against.” (McGuire v. Drew (1890) 83 Cal. 225, 229.) An error is excusable if a reasonably prudent person under the same or similar circumstances might have made the same error. (Zamora v. Clayborn Contracting Group, Inc. (2002) 29 Cal.4th 249, 258.) [Citations omitted.]

III. Analysis

Defendant Ok Joo Kim claims she was wrongfully involved in the lawsuit. (Mtn. pg. 5.) Mrs. Kim argues that she had no relationship with plaintiff and did not understand the stipulation she was signing. (Ibid.) She argues she was never served with the summons and complaint. (Ibid.) She claims to have learned she was a defendant on April 20, 2018, when she received mail from the Clerk. (Ibid.)

Plaintiff has included a proof of service for Mrs. Kim, showing she was properly substitute-served via her husband. (Opp. Exh. 1.) After being properly served, Mrs. Kim signed the stipulation agreement on December 29, 2016. (Id. at Exh. B.) She has not adequately proven mistake, inadvertence, surprise, or excusable neglect.

IV. Ruling

The motion is denied without prejudice.