Judge Gregory Keosian, Case 22STCV09759 2022-09-27 Tentative Ruling

Judge: Gregory Keosian, Case: 22STCV09759, Date: 2022-09-27 Tentative Ruling

Case Number: 22STCV09759 Hearing Date: September 27, 2022 Dept: 61

Defendant Namhoon Kim’s Motion to Set Aside Judgment is DENIED.

Defendant to give notice.

Defendant moves for relief from default under Code of Civil Procedure § 473, subd. (b):

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 accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.

(Code Civ. Proc. § 473, subd. (b).)

Defendant Namhoon Kim moves to vacate the judgment entered on July 27, 2022, on the grounds that his failure to appear at trial was the result of lack of notice of the trial date. Defendant argues that although a proof of service of notice of trial indicates that notice was mailed to his address on 8^th Street in Los Angeles on May 4, 2022, he did not receive any such notice, likely because the mailbox is unsecured, in a bad neighborhood, and frequently targeted for theft by vandals. (Kim Decl. ¶¶ 2–3.)

Plaintiff in opposition argues that Defendant bears the responsibility for selecting the address in question despite its lack of security, and further argues that theft or disposal of the notice of trial is unlikely. (Opposition at pp. 3–4.)

Plaintiff’s argument is the more persuasive. It was Defendant who selected the address at issue for the purpose of service in this action when he filed his answer. The proof of service of trial date that Plaintiff presents indicates that notice of trial was provided. The explanation that Defendant provides for lack of notice — third party interference — is implausible on its own, and Defendant was in any case the one in the best position to mitigate those risks, whether by selecting a different address or by taking precautions to safeguard the mailbox. No mistake, inadvertence, surprise, or excusable neglect has been demonstrated here.

The motion is therefore DENIED.