Ree v. Chon CA2/8 ( 2016 )

Filed 2/25/16 Ree v. Chon CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
JIN REE, B262184
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC506778)
v.
SUNG NAM CHON et al,
Defendants and Respondents.
APPEAL from orders of the Superior Court of Los Angeles County. Gregory W.
Alarcon, Judge. Affirmed.
Jin Ree, in pro. per., for Plaintiff and Appellant.
No appearance for Defendants and Respondents.
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This is an appeal from two orders denying plaintiff and appellant Jin Ree relief
from dismissal after plaintiff had obtained entry of default as to all defendants but failed
to obtain any default judgment. Plaintiff filed a timely notice of appeal from the trial
court’s order of September 16, 2014, denying his motion to vacate the dismissal of his
complaint, and from the order of January 14, 2015, denying his motion for
reconsideration. Finding the trial court did not abuse its discretion, we affirm the orders
and judgment of dismissal.
BACKGROUND
The record on appeal appears to be incomplete but we discern the following
factual and procedural background from the records before us. Plaintiff filed this lawsuit
on April 23, 2013, alleging eight causes of action against four defendants. The gist of the
complaint is that the defendants, all of whom are members and past or former officers of
the Seoul Lions Club, defamed plaintiff in relation to his views about the management
and operation of the club. Plaintiff sought damages and an injunction to prevent them
conducting any club business. Plaintiff did not specify the amount of damages he sought
in the complaint, and there is no statement of damages in the record.
As reflected in plaintiff’s motion to vacate dismissal and the court’s ruling,
plaintiff obtained entry of default against all four defendants by August 12, 2013.
Plaintiff attended the case management conference on September 24, 2013, at which time
the court set a hearing on an order to show cause regarding dismissal for failure to obtain
default judgment. On November 20, 2013, plaintiff filed a declaration requesting more
time to negotiate settlements, and on November 25, 2013, in plaintiff’s presence, the
court continued the hearing. On January 17, 2014, plaintiff filed a declaration giving
excuses for his delay in providing default prove-up documents, including emotional
distress from an unspecified personal matter, being busy, and lacking legal expertise. On
January 24, 2014, the court admonished plaintiff that dismissal may result if a default
judgment was not obtained. At the hearing on March 24, 2014 which plaintiff attended,
the court ruled that plaintiff had not provided “any default prove-up documents or proof
of having submitted them to the Court.” The court dismissed the action.
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On August 4, 2014, plaintiff filed a motion to vacate the dismissal based on Code
of Civil Procedure section 473, subdivision (b), claiming his own mistake, inadvertence,
surprise and excusable neglect led to the erroneous dismissal. In his declaration in
support of the motion, plaintiff declared when he showed up in court on March 24, 2014,
he thought the court had already received the default judgment package he had submitted
to the clerks in Room 118 (of the Stanley Mosk Civil Courthouse) but he did not bring a
conformed copy with him to court. When he went to Room 118 to obtain the default
judgment package, the clerks could not find it. He returned to court to so report, but the
clerk told him the court had already dismissed his action. Later, he found the conformed
copy of the cover page and the whole default judgment package, which he then corrected
and resubmitted to the court. But the post office returned the default judgment packet to
him (he had to pay extra postage) along with “one page blue color notice.” He went to
court on July 14, 2014, to find out what happened and obtained a copy of the minute
order of dismissal indicating notice was waived, but plaintiff denied he had waived notice
at the March 24 hearing.
The court denied plaintiff’s motion to vacate the dismissal on September 16, 2014.
The court reasoned that plaintiff had failed to obtain default judgment within 45 days of
the entry of default as required by rule 3.110 (h) of the California Rules of Court;
plaintif’s unusually long delays and excuses were not reasonable; plaintiff’s failure to
bring any proof of default prove-up papers to the hearing on the motion to vacate was
inexcusable neglect; and, to the extent the motion might be construed as a motion for
reconsideration, it was not filed within ten days of the court’s March 24, 2014 order, and
it did not state new facts or law.
Plaintiff then filed a “notice of intention to move for reconsideration” on
October 1, 2014. The caption shows a November 20, 2014 hearing date. Although not
entirely clear, it appears there was no hearing on November 20, 2014, because plaintiff
had failed to file a motion or because he failed to reserve a hearing date.
Plaintiff’s motion for reconsideration was not heard until January 14, 2015. Like
the motion to vacate dismissal, plaintiff sought relief from his own, and from the clerks’
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various alleged mistakes under Code of Civil Procedure sections 473 and 116.725. After
taking the matter under submission, the court denied the motion and issued an order dated
and served by mail on January 14, 2015. The court’s minute order refers to a one-page
tentative ruling that is not in the record.
This appeal followed.
DISCUSSION
“A motion for relief under [Code of Civil Procedure] section 473 is addressed to
the sound discretion of the trial court and in the absence of a clear showing of abuse
thereof, the exercise of that discretion will not be disturbed on appeal.” (Generale Bank
Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1399.) “The
appropriate test for abuse of discretion is whether the trial court exceeded the bounds of
reason. When two or more inferences can reasonably be deduced from the facts, the
reviewing court has no authority to substitute its decision for that of the trial court.”
(Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.) Similarly, a trial court’s ruling on
a motion for reconsideration is also “reviewed under the abuse of discretion standard.”
(Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457.)
Here, the trial court did not abuse its discretion. Plaintiff filed his complaint on
April 23, 2013, and, within four months, obtained entry of default for all four defendants
in August 2013. Even though the trial court held several hearings between September 24,
2013, and March 24, 2014, plaintiff never demonstrated that he had submitted a default
prove-up package to the court. We recognize that plaintiff declared under penalty of
perjury in the declarations attached to his motions that he submitted a default prove-up
package on March 14, 2014, which he contended had been mishandled by the clerks, and
that he was in possession of a conformed copy of a complete default prove-up package.
But, the record indicates he never provided a conformed copy, or any copy at all, of any
default prove-up package to the trial court, and there is none in the record on appeal.
California Rules of Court, rule 3.110 (h) requires that plaintiff must obtain a
default judgment within 45 days after entry of default, unless the court grants an
extension of time. “Each rule in the Rules has the force of law.” (Carlson v. Department
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of Fish and Game (1998) 68 Cal.App.4th 1268, 1272.) In this case, the court granted
plaintiff extensions of time on November 25, 2013 (105 days after entry of default) and
January 24, 2014 (165 days after entry of default), and finally dismissed the action on
March 24, 2014 (224 days after entry of default) when plaintiff failed, once again, to
demonstrate that prove-up paperwork had been submitted to the court.
The court did not abuse its discretion under Code of Civil Procedure section 473,
subdivision (b) by following the mandate of California Rules of Court, rule 3.110(h), or
by finding plaintiff’s repeated delays were unreasonable and that his mistakes were not
excusable. We are not persuaded that any clerical error contributed to the rulings.
Further, the court did not abuse its discretion by denying plaintiff’s motion for
reconsideration, which did not rest on any new fact or law. Indeed, for that reason, the
court lacked discretion to grant the motion. (Code Civ. Proc., § 1008, subd. (e); see
generally, Le Francois v. Goel (2005) 35 Cal.4th 1094.)
DISPOSITION
The orders and judgment of dismissal are affirmed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
RUBIN, J.
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