Beijing Luode Property Management Co., Ltd. vs. Qin

Motions to Compel Responses to Special interrogatories and Requests for Production, and Motion to Deem Matters Admitted

Defendant Sub-Zero Excavating, Inc.’s motions to compel responses to its first sets of special interrogatories and requests for production, and to deem the matters admitted in its first set of requests for admission, are DENIED AS MOOT to the extent they seek an order compelling responses or deeming matters admitted.

Plaintiff Alberto Palomera Coronado served verified responses to the requests for admission roughly 1.5 hours after these motions were filed (see Hanassab Decl. ¶¶ 11-12, Ex. A [email serving the responses at 3:51 p.m. on 4/7/26]), and served verified responses to the special interrogatories and requests for production on 8/10/26. (Id. ¶ 20, Ex. C.)

Sanctions remain at issue. (Cal. Rules of Court, rule 3.1348(a).)

Sanctions are GRANTED in the total amount of $4,980 (or $1,660 per motion) against plaintiff only, payable within 30 days of notice. (See Code Civ. Proc., §§ 2030.290, subd. (c), 2031.300, subd. (c), 2033.280, subd. (c).)

The Case Management Conference is CONTINUED to January 14, 2027, at 9:30 a.m. in Department C12.

Defendant Sub-Zero shall give notice of all of the above.

6. Beijing Luode Property 1. Motion for Attorney Fees Management Co., Ltd.

2. Motion to Dismiss vs. Qin MOTION FOR ATTORNEY FEES

Cross-defendants Beijing Zhongtai Chuangying Enterprise Management Co., Ltd. (Zhongtai), Kunsheng Enterprise Management Co., Ltd. (Kunsheng), Zhang Yi (Yi), Xie Zizheng (Zizheng), and Qiu Xiaojian’s (Xiaojian) motion for attorney fees is DENIED.

The motion is denied as to Kungsheng and Yi as they have failed to demonstrate they are “prevailing parties” in this action for purpose of attorney fees. Kunsheng and Yi were dismissed from this action after they successfully moved to quash service of the summons for lack of personal jurisdiction. They did not prevail on any claims; they merely demonstrated their lack of minimum contacts with the State of California and this court’s lack of personal jurisdiction over them. Attorney fees based on a contractual provision are awarded to the party who prevails on the contract overall, not to a party who prevails at only an interim procedural step. (See DisputeSuite.com, LLC v. Scoreinc.com (2017) 2 Cal.5th 968, 977.)

The motion is further denied as to all moving cross-defendants because the alleged fee provision in the guarantee does not provide for attorney fees as costs in this action. Specifically, moving parties contend they are entitled to attorney fees pursuant to a purported fee provision at “Article 1” of the guarantee between Zhongtai and crosscomplainants Han Qin and Fan Yang. (See Mtn. P&As at pp. 2, 7, citing Verified Compl. at Exs. C-D.) That portion of the guarantee provides, in pertinent part: “To ensure that Party A [borrower Yinglianshi] properly fulfills its obligations hereunder [sic], the guarantors Qin Han and Yang Fan (respectively and collectively referred to as ‘the Guarantor’) voluntarily furnish unlimited joint and several liability guarantee to Party B [lender Zhongtai], and the guarantee liabilities are as follows: [¶] I.

The scope of the guarantee includes, but is not limited to, the loan principal, interest, penalty interest, compound interest, liquidated damages, damages and the expenses for Party B [lender Zhongtai] and Party C [Jilin Shuangyang Rural Commercial Bank Co., Ltd. Jintai Sub-branch] to realize all creditor’s rights under the ‘Entrusted Loan Contract.’ ” (Verified Compl. at Ex. D; see Mtn. P&As at pp. 2, 7.)

This does not provide for attorney fees as costs in an action arising from the guarantee. It simply provides that the guarantors’ “liabilities” under the guarantee include the lender’s expenses in enforcing the loan—i.e., that those expenses shall be added to and considered a part of the debt secured by the guarantee. This is not a provision providing for attorney fees as costs in an action to enforce the guarantee; “it is, instead, a provision that attorney’s fees, like any other expenses the lender may incur to protect its interest, will be added to the secured debt.” (Hart v.

Clear Recon Corp. (2018) 27 Cal.App.5th 322, 327; see Chacker v. JPMorgan Chase Bank, N.A. (2018) 27 Cal.App.5th 351, 356-357.) Stated another way, it “is not a prevailing-partyattorney-fee provision ..., but an enumeration of the scope of the [guarantee].” (M. Perez Co., Inc. v. Base Camp Condominiums Assn. No. One (2003) 111 Cal.App.4th 456, 463.) And while it provides for the lender’s “expenses” to enforce the loan as damages (i.e., as part of the guarantors’ liability under the contract), it does not “authorize[] a court to enter an attorney fee award order that obligates the [guarantors] to pay fees independent of [their] repayment obligation under the [guarantee]....” (Chacker, at p. 356; see also Oakland- Alameda County Coliseum Authority v.

Golden State Warriors, LLC (2020) 53 Cal.App.5th 807, 818 [contract interpretation is primarily a question of law]; Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 956 [“ ‘[i]t is the objective intent, as evidenced by the words of the contract, rather than the subjective intent of one of the parties, that controls interpretation’ ”].)

Motion to Dismiss

Defendants Han Qin and Fan Yang’s motion to dismiss is GRANTED. (See Code Civ. Proc., §§ 583.310, 583.360.)

The court ORDERS plaintiff Beijing Luode Property Management Co., Ltd.’s complaint dismissed without prejudice.

“An action shall be brought to trial within five years after the action is commenced against the defendant.” (Code Civ. Proc., § 583.310.) An action is “commenced” when a plaintiff files the original complaint. (See Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 723.) A plaintiff cannot sit back and await action by the court; “[a] plaintiff has an obligation to monitor the case in the trial court, to keep track of relevant dates, and to determine whether any filing, scheduling, or calendaring errors have occurred.” (Jordan v. Superstar Sandcars (2010) 182 Cal.App.4th 1416, 1422.)

Plaintiff filed the complaint on 7/16/20. (ROA No. 2.)

The court then stayed this action twice pursuant to the stipulation of plaintiff and defendants for a total of 198 days. First, the court stayed the action for 60 days on 1/11/23. (ROA No. 300.) The court then stayed it again from 9/19/23 to ten days after defendants/crosscomplainants Han Qin and Fan Yang filed proof of service of their cross-complaint on Zhongtai, Kunsheng, Yi, Zizheng, and Xiaojian (collectively, the PRC cross-defendants). (ROA No. 342.) Defendants/cross-defendants did not file proper proof of service of the cross-complaint on the PRC cross-defendants until 1/25/24, when they filed a stipulation entered into between these parties acknowledging service of the cross-complaint on the PRC cross-defendants as of 1/8/24. (ROA No. 378.)

Ten days after the 1/25/24 filing of this stipulation/proof of service was 2/4/24. The second stay therefore spanned a period of 138 days (9/13/23 to 2/4/24).

The five-year deadline to bring the action to trial was therefore five years (1,825 days) plus 198 days from the date plaintiff filed the complaint on 7/16/20, which was Thursday 1/29/26. (See Code Civ. Proc., § 583.310; Gov. Code, § 6803 [a “year” is “a period of 365 days”]; State ex rel. Sills v. Gharib-Danesh (2023) 88 Cal.App.5th 824, 847 & fn. 19 [five-year period totals 1,825 days; leap year is not included].)

This date has long since passed, requiring the mandatory dismissal of the complaint. (Code Civ. Proc., §§ 583.310, 583.360.)

Plaintiff has not demonstrated any extension, excuse, or exception as provided by statute that provides for further tolling/exclusions. (See Code Civ. Proc., § 583.360, subd. (b).)

Plaintiff has not demonstrated the existence of a stipulation to extend the five-year period in writing or “[b]y oral agreement made in open court” as “entered in the minutes of the court” reflected in a “transcript” of the proceedings. (Code Civ. Proc., § 583.330.) Contrary to plaintiff’s assertions, there is no indication in the record whatsoever, including in the 6/27/25 and 6/30/25 minute orders, that the parties ever entered into an oral agreement to set trial on 10/9/26, and there is no dispute that a transcript of these proceedings were never made. (See Gongsun Decl. ¶¶ 14, 16, 17, Exs.

B-C.) Instead, what the record shows is that the court heard a demurrer and held a trial setting conference on 6/27/25, after which it took the matters under submission. The court then issued an under submission ruling on the demurrer on 6/30/25, at which time it set the trial date for 10/9/26 on its own accord, just as it unilaterally indicated it would do in the tentative on the demurrer. (See ROA Nos. 877, 879 [6/27/25 and 6/30/25 minute orders]; see Davidson Reply Decl. ¶ 4; Farkas Decl. ¶¶ 5, 7; see also Gongsun Decl. ¶ 8, Ex.

A [tentative ruling stating in part, “The Court now sets trial in this matter on October 9, 2026, at 11:00 a.m. in Department C12”].)

Plaintiff next contends that defendants are equitably estopped from invoking the five-year rule after agreeing to continue trial to 10/9/26 (see Opp. at pp. 9-10), but this argument fails because, again, nothing shows defendants agreed to continue trial to 10/9/26. Defense counsel’s mere appearance at and/or failure to object to a belated trial date at a trial setting conference does not somehow constitute a stipulation to extend the five-year deadline under section 583.330. (See Randolph v. Trustees of California State University (2025) 117 Cal.App.5th 1228, 1234; Davidson Reply Decl. ¶¶ 4, 7, 9; Farkas Decl. ¶¶ 7-9; Oberle Decl. ¶¶ 6-11.)

And the court declines to find the parties expressly agreed to extend the five-year deadline solely based on the questionable “recollection” of plaintiff’s counsel, when defense counsel firmly denies the existence of any such agreement. (Davidson Decl. ¶ 15; Davidson Reply Decl. ¶¶ 7, 9; Farkas Decl. ¶¶ 7-9; Oberle Decl. ¶¶ 6-11.)

Plaintiff next contends that the filing of the cross-complaint rendered it “impracticable” to bring the complaint to trial within the five-year period, because the cross-complaint seeks, inter alia, declaratory relief as to the rights of the parties under the guarantee, requiring the court to exclude 3.5 years from the five-year period. (See Opp. at pp. 12- 14.) The Court does not at all agree with this legally flawed argument.

Similar to the other arguments, this argument fails because the mere filing of a cross-complaint does not extend the five-year deadline, and although the complaint and cross-complaint may concern related issues, plaintiff has failed to provide any persuasive explanation or reason as to why the existence of the cross-complaint made it excessively and/or unreasonably difficult for plaintiff to bring the case to trial within the five-year period, or how the cross-complaint somehow prevented plaintiff from so much as attempting to specially set the matter for trial at any time in this litigation.

Finally, plaintiff contends that dismissing this action under the fiveyear rule “would only produce only wasteful and duplicative litigation” because the statute of limitations on one of its two causes of action, namely its first cause of action for the enforcement of a foreign judgment, has not yet passed, allowing it to simply bring a new action asserting that same claim. But Code of Civil Procedure section 583.360 provides that “[a]n action shall be dismissed by the court ... if the action is not brought to trial within the time prescribed in this article,” and that “[t]he requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.” (Code Civ.

Proc., § 583.360.) And plaintiff fails to cite any statute that allows the court to excuse the five-year deadline because the statute of limitations on one of the two claims in its complaint has not yet run.

The complaint in this case is DISMISSED.

The Jury Trial for October 9, 2026, remains on calendar. The Cross-Complaint still remains as to Beijing Luode Property Management Co.

The Court now sets an OSC re: Entry of Default for October 9, 2026, at 11:00 a.m. in Department C12. Defendants are ordered to file and serve a Judgment of Dismissal as to the now dismissed complaint by September 11, 2026.

Plaintiff shall give notice of all of the above.