Dae Sung Lee v. Moo Yeol Park

Opinion

EPSTEIN, Acting P. J.

The appellants Dae Sung and Cindy Su Lee appeal from an order of dismissal for failure to diligently prosecute their case. (Code Civ. Proc., § 583.360, subd. (a).) We find no abuse of discretion and affirm the judgment.

Factual and Procedural Summary

Since the facts underlying this complaint do not bear on resolution of the issue on appeal, we discuss them only briefly as background. Appellants

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purchased a grocery business in Bell Gardens, California, known as Jabonería Market (the business) from respondents Moo Yeol and So Cha Park. Appellants entered into an escrow agreement with respondents on or about July 17, 1987, after which the sale of the business was completed. Appellants alleged the written escrow instructions conditioned the sale on there being no pending “ ‘citations, violations or disciplinary proceedings’ ” against the business and on four years remaining on the lease. The term of the lease was four years with a renewal option of five years.

In 1971, long before the purchase, the area where the business was located was rezoned as residential by the City of Bell Gardens and, pursuant to the new zoning code, all businesses had until January 27, 1991, to cease operating. Three and one-half years of this period remained by the date escrow opened.

Appellants’ lawsuit was filed on December 24, 1987. They named as defendants respondents Moo Yeol Park, So Cha Park, Silver Star Realty Corporation (respondents’ real estate broker) and Young Tae Beck (respondents’ real estate agent). Appellants sued respondents Moo Yeol and So Cha Park for breach of contract, intentional concealment of material facts, and rescission. They alleged that respondents Moo Yeol and So Cha Park knew the grocery business was a nonconforming use under an existing zoning ordinance and that the existence of proper zoning was a material factor effecting appellants’ decision to go forward with the deal. Appellants sued the real estate broker, Silver Star Realty Corporation, and respondents’ agent, Young Tae Beck, for negligence based on the same transaction.

On February 5, 1988, respondents Moo Yeol and So Cha Park answered and cross-complained against Silver Star Corporation and Beck for declaratory relief, breach of fiduciary duty, and negligence. The same day Silver Star and Beck answered the complaint. On March 9, 1988, Silver Star and Beck answered the cross-complaint by respondents. The record does not include appellant’s amended complaint which added the building owners, Howard and Josephine Der, as defendants but it does include their answer, filed on March 29, 1989. The Ders and appellants settled their litigation and, on June 14, 1991, the Ders were dismissed from the action.