Judge: Audra Mori, Case: 21STCV44264, Date: 2022-08-19 Tentative Ruling

Case Number: 21STCV44264    Hearing Date: August 19, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background Facts

Plaintiff Chatsworth Greens, LLC (“Plaintiff”), filed this action against Defendant Nick Suk Kim (“Defendant”) for damages arising from a motor vehicle accident.  Plaintiff has filed proof of service of summons showing Defendant was personally served with the summons and complaint on December 10, 2021.  On January 11, 2022, Plaintiff obtained Defendant’s default. 

On March 18, 2022, Defendant filed the instant motion to set aside default.  Any opposition to the motion was due on or before August 8, 2022.  To date, no opposition has been received.

2. Motion to Set Aside Default

CCP §473(b) provides, in pertinent part:

The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief … shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. …

A mistake is a basis for relief under CCP § 473 when by reason of the mistake a defendant failed to make a timely response.  Surprise occurs when a Defendant is unexpectedly placed in a position to his injury without any negligence of his own.  Excusable neglect is a basis for relief when the Defendant has shown some reasonable excuse for the default.  (Credit Managers Association of California v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166, 1173; Davis v. Thayer (1980) 113 Cal.App.3d 892, 905.)  Under CCP § 473, the moving party bears the burden of demonstrating an excusable ground, such as fraud or mistake, justifying a court’s vacating a judgment.  (Basinger v. Roger & Wells (1990) 220 Cal.App.3d 16, 23-24.) 

Here, Defendant provides that he has been diagnosed with dyslexia and has limited ability to read and understand English; his native language is Korean.  Further, Defendant asserts that as a result of the subject accident, he retained an attorney to represent him in asserting claims against the other driver.  Consequently, when Defendant was served with the summons and complaint, and because of his limited ability to read and understand English, he believed the documents were related to the claims being made against the other driver for the accident.  Because Defendant did not recognize they were for a separate matter, and because he believed they were related to the claims he was asserting against the other driver, Defendant did not inform the attorney he retained to represent him.  Nor did Defendant inform his insurer.  Defendant avers he is ready and willing to file an answer and proceed with his defense in this matter, and that defense counsel has attempted to meet and confer with Plaintiff’s counsel regarding setting aside the default, but Plaintiff’s counsel did not agree to doing so. 

The motion is unopposed, and the evidence shows that the default was entered as a result of Defendant’s mistake, inadvertence, and excusable neglect.  There is no showing of any prejudice to Plaintiff or that Defendant delayed in seeking the requested relief.            

            Based on the foregoing, Defendant’s motion to set aside the default is granted.  Defendant is ordered to file a separate copy of his proposed answer within fifteen (15) days.

Defendant is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 19^th day of August 2022