Judge Jill Feeney, Case 21STCV41656 2022-09-14 Tentative Ruling

This is an action for motor vehicle negligence arising from a vehicle collision which took place in August 2021. On November 12, 2022, Plaintiff Christina Fields filed her Complaint against Defendants Naoki Yamagami, Seiko Yamagami, and Does 1 to 10.

On December 2, 2021, Plaintiff filed proof that Defendant Seiko Yamagami was personally served with a complaint and summons on November 30, 2022. Defendant Naoki Yamagami was served by substituted service that same day. Defendants failed to timely respond, and default was entered on April 20, 2022.

Defendants argue that Seiko Yamagami does not speak English and that Naoki Yamagami was in Japan at the time of service. As a result, Defendants did not have actual notice of this action until after default was entered. In the alternative, Defendants argue that default was entered against them due to their own mistake, inadvertence, surprise, or excusable neglect.

Plaintiff offers significant evidence indicating that Defendants had notice. In addition, Plaintiff argues that Defendants have resided in the United States for 20 years and should not be able to claim lack of notice due to language barriers. Plaintiff also argues that Defendants have not shown mistake and their neglect was inexcusable.

“When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.” (Code Civ. Proc. § 473.5(a).) The motion “shall be accompanied by an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect” and the “party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.” (Code Civ. Proc. § 473.5(b).)

Pursuant to Code of Civil Procedure, section 473, subdivision (b), a court may also relieve a party from default judgment if the default was “taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” The party must seek relief within six months of judgment and no affidavit is required. (Ibid.)

When such relief is available, “there is a strong public policy in favor of granting relief and allowing the requesting party his or her day in court.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981-982, internal quotations omitted.)

Defendants argue that default should be set aside because they did not have actual notice of this lawsuit. Defendants offer the declaration of Seiko Yamagami who states that she is not proficient in English and does not recall being personally served with documents on November 30, 2021. (Seiko Decl. ¶¶ 6,7.) Defendants also offer the declaration of Naoki Yamagami who states that he first learned of this action in May 2022. (Naoki Decl. ¶ 5.) Naoki Yamagami further states that he has no recollection of ever seeing the Complaint inside or outside of his residence prior to May 2022. (Id. ¶ 6.)

The record reflects that Seiko Yamagami was personally served with a Complaint and Summons on November 30, 2021, and as her husband and cohabitant, Naoki Yamagami was served by substituted service that same day. With respect to notice, whether parties recall being served is irrelevant. And lack of proficiency in English does not equate to lack of notice. Defendants were properly served and thus had notice.

However, Defendants also argue that default should be set aside because it was entered against them due to their own mistake, inadvertence, surprise, or excusable neglect. Plaintiff responds that Defendants have not adequately shown mistake or excusable neglect—that any neglect on the party of Defendants was inexcusable. Here, the evidence of significant language barriers is enough to show excusable neglect. Seiko Yamagami states she does not understand English, and Naoki Yamagami states he was out of town when the Complaint and Summons were served. It is conceivable that Seiko Yamagami failed to understand the importance of the documents that she was served with and neglected to give them to Naoki Yamagami as a result. The record shows that after Naoki was served with notice of default the instant motion was timely filed, and “there is a strong public policy in favor of granting relief and allowing the requesting party his or her day in court.” (Rappleyea, supra, 8 Cal.4th at 981-982.)