Opposition

Cal. Super. - 4th Dist.July 10, 2019

© 0 9 O N Dn hk W N = NN N N N N N N N N = mm e m e m e m e m e m e m p m c o JI O N Wn br W O N D = DO VO N N N B E A L = O WALLIN & RUSSELL LLP MICHAEL A. WALLIN, Cal. Bar No. 240344 mwallin@wallinrussell.com 26000 Towne Centre Drive, Suite 130 Foothill Ranch, CA 92610 Telephone: ~~ 949-652-2202 Attorneys for Plaintiff CHRISTIAN TRAN SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE CHRISTIAN TRAN, an individual, Plaintiff, Vi ALEX CHO, an individual; ROBERT CHO, an individual; HELEN LEE, an individual; C&C PACIFIC RESOURCE GROUP, a California corporation; and DOES 1-10, inclusive, Defendants. Case No. 30-2019-01082032-CU-BC-CJC PLAINTIFF’S OPPOSITION TO HELEN LEE’S MOTION TO SET ASIDE DEFAULT; DECLARATION OF MICHAEL A. WALLIN Hearing Date: January 27, 2020 Time: 10:30 a.m. Dept.: C26 © 00 3 AN Wn B W ND = NN N N N N N N N N = mm e m e m e m e m e m e m p m co NN O N Ln BA W I N D R O O N Y D N W D = O Plaintiff Christian Tran ("Plaintiff") hereby submits his opposition to defendant Helen Lee’s Motion to Set Aside Entry of Default (the "Motion").! L INTRODUCTION The Motion should be denied because movant Helen Lee (“Lee”) has not met her burden of establishing that she is entitled to relief pursuant to CCP § 473. If the Court is inclined to set aside Lee’s default, such should be conditioned on Lee’s prior payment of $1,400 to Plaintiff as reimbursement for the costs incurred by Lee because of her failure to timely file a response. The facts are straightforward. Plaintiff alleges that Lee committed fraud by convincing Plaintiff to loan money to defendants Robert Cho and Alex Cho (collectively, “Cho”). Lee introduced Plaintiff to Cho. Lee assured Plaintiff that Cho would timely repay any money loaned by Plaintiff to Cho. Plaintiff initiated this action in July 2019. Lee was personally served with the summons and complaint on July 17, 2019. Lee was aware of her obligation to timely file a response to the complaint (in the Motion, she does not contend otherwise). Lee never directly requested any extension to respond. Prior to Lee’s response deadline, attorney David Rho contacted Plaintiftf’s counsel to request that Lee be given an extension to respond. Plaintiff’s counsel denied the requested extension. This was for several reasons, including that David Rho could not even confirm that he represented Lee. Lee, with knowledge of her deadline to respond, failed to timely file a response. As a result, Plaintiff caused Lee’s default to be entered. Lee did not file this Motion until approximately two months after Lee’s default was entered. During this time period, Plaintiff’s counsel worked to seek entry of a default judgment against Lee. Notably, David Rho has not submitted an Attorney Affidavit of Fault in connection with the Motion. This is surprising given that, in the Motion, Lee’s primary argument is apparently that David Rho should have secured an extension or timely filed Lee’s response. Evidentiary support for the statements contained in this Opposition can be found in the below Declaration of Michael A. Wallin. 5, © 0 9 O N Dn hk W N = NN N N N N N N N N = mm e m e m e m e m e m e m p m c o JI O N Wn br W N D = DO VO N S N B R A W N = O Lee simply has not met her burden under CCP § 473. If Lee was neglectful, her neglect was not excusable. Moreover, Lee cannot be entitled to relief unless she moved promptly upon discovering the default. She did not move promptly, instead waiting nearly two months to file the Motion. If the Court is included to set aside Lee’s default, CCP § 473 permits the Court to condition the set aside on Lee’s reimbursement of the costs incurred by Plaintiff as a result of Lee’s failure to timely respond. Here, Plaintiff’s counsel spent approximately four hours to obtain Lee’s default and work towards entry of a default judgment against Lee. Given Plaintiffs counsel’s reasonable hourly rate of $350, this equates to $1,400. At a minimum, relief should be conditioned on Lee’s prior payment to Plaintiff of $1,400. II. CONCLUSION For the reasons set forth herein, Plaintiff respectfully requests that the Motion be denied. Dated: January 13, 2020 WALLIN & RUSSELL LLP By Mall MICHAEL A. WALLIN Attorneys for Plaintiff CHRISTIAN TRAN © 00 3 AN Wn B W ND = NN N N N N N N N N = mm e m e m e m e m e m e m p m co NN O N Ln BA W I N D R O O N Y D N W D = O DECLARATION OF MICHAEL WALLIN I, Michael Wallin, declare: I. I am an attorney, licensed to practice in California, and am a partner in the law firm Wallin & Russell LLP, counsel of record for plaintiff Christian Tran (“Plaintiff”). I have personal knowledge of the facts stated herein, and could and would testify competently thereto if called as a witness. 2. Plaintiff initiated this action in July 2019. Lee was personally served with the summons and complaint on July 17, 2019. 3. Lee never directly requested any extension to respond. 4. Prior to Lee’s response deadline, attorney David Rho contacted me to request that Lee be given an extension to respond. I denied the requested extension. This was for several reasons, including that David Rho could not even confirm that he represented Lee. 5. Lee failed to timely file a response. 6. As a result, Plaintiff caused Lee’s default to be entered. 7. Lee did not file this Motion until approximately two months after Lee’s default was entered. 8. During this time period, I worked to seek entry of a default judgment against Lee. 9. Notably, David Rho has not submitted an Attorney Affidavit of Fault in connection with the Motion. 10. ~~ My reasonable hourly rate is $350. I have spent approximately four hours to enter Lee’s default and seek entry of a default judgment against her. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on January 13, 2020 at Foothill Ranch, California. Michael Wallin Ce 0 9 O N Dn B= W N = N N N N N N N N N m e m e m e m e m e m m e co NI O N Ln A W N = O D I Y B N W ND = O PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange; I am over the age of eighteen years and not a party to the within entitled action; my business address is 26000 Towne Centre Drive, Suite 130, Foothill Ranch, CA 92610. On January 13, 2020, I served a true and correct copy of the following document(s), entitled PLAINTIFE’S OPPOSITION TO HELEN LEE’S MOTION TO SET ASIDE DEFAULT; DECLARATION OF MICHAEL A. WALLIN on the interested parties in this action in the manner described as follows: PETER K. CHU LAW OFFICES OF PETER K. CHU 3000 W. 6th Street, Suite 306 Los Angeles, CA 90020 Attorney for Defendant Helen Lee BY MAIL: By placing the copy listed above in an envelope with postage thereon fully prepaid, addressed as set above, and then sealing the envelope and depositing it in the U.S. mail at Foothill Ranch, California. I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. postal service on that same day with postage thereon fully prepaid at Foothill Ranch, California in the ordinary course of business. [ am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. BY FAX BY ELECTRONIC MAIL: I caused the foregoing document to be transmitted to the person(s) at the electronic address(es) listed above in PDF format from my electronic address, mwallin@wallinrussell.com. STATE: I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on January 13, 2020 at Foothill Ranch, California. Michael A. Wallin PROOF OF SERVICE