Judge Kerry Bensinger, Case Number: 24STCV13960, Date: 2025-04-22 Tentative Ruling

On June 4, 2024, Plaintiff, Credit Card Services, Inc. dba Bankcard Services, filed a Complaint against Defendants, Kemis Travel LLC (Kemis), Dat Huy Pham aka Dat Pham (Pham), and Does 1 to 50, alleging causes of action for (1) breach of contract, (2) breach of written continuing personal guaranty agreement, (3) account stated, and (4) open book account. As relevant here, the second, third, and fourth causes of action are asserted against Pham.

On July 2, 2024, Plaintiff served Pham with the summons and complaint by personal service.

Code of Civil Procedure section 473, subdivision (b) provides that a court may “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.”¿ In addition, a court must vacate a default or dismissal when a motion for relief under Section 473, subdivision (b) is filed timely and accompanied by an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise or neglect “unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise or neglect.”¿ (Code Civ. Proc., § 473, subd. (b).)¿¿¿¿

The party or the legal representative must seek such relief “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); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Cal.App.4th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”].)¿

Defendant Pham seeks to vacate the default on the grounds Defendant was in the midst of annulling his marriage after learning it was a sham marriage and during which his partner stole money from other individuals.¿ (Pham Decl., ¶¶ 5-7.)¿ Defendant also states he was taken by surprise by the default because Plaintiff did not warn him his default was going to be taken, or a writ filed against his home. The point being, if he had been warned, Defendant would have hired an attorney sooner. (Pham Decl., ¶ 8.) For these reasons, Defendant argues his failure to timely answer the complaint was the result of excusable neglect.¿¿¿

Plaintiff takes issue with Defendant’s contentions that life events (such as annulling a sham marriage) or being unaware that a default would be taken constitute excusable neglect. In support, Plaintiff points to the undisputed facts that Pham is the Chief Executive Officer, Managing Member, and 100% owner of Kemis. Pham was served with notice of this action in his individual capacity and as the agent of Kemis. After Pham’s default was entered, Kemis filed for Chapter 7 bankruptcy three days later, with Pham signing the bankruptcy petition. Pham later appeared in this action, after his default was taken, at a hearing for Plaintiff’s writ application. The sum of these actions, Plaintiff contends, undermines Pham’s claims that he was unaware that his default would be taken or that he was under such stress that he could not file timely a responsive pleading in this action.

The court disagrees. “Within the context of section 473(b) neglect is excusable if a reasonably prudent person under similar circumstances might have made the same error.” (Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 929.) Here, Pham attests to being self-represented at the time his default was taken and under life-altering events. That Pham was able to file bankruptcy for Kemis but not his own responsive pleading are not inconsistent actions. Given Pham’s circumstances, a reasonably prudent person might have made the same error. The court finds the failure to timely serve and file an answer to the Complaint was due to excusable neglect.

The motion is GRANTED. The default entered against Defendant Dat Huy Pham on August 2, 2024 is VACATED. Defendant’s proposed answer is deemed filed as of this date.¿ The court further directs Defendant to file separately his answer with the court within the next five court days.¿

Kerry Bensinger

Judge of the Superior Court

[1] The notice of motion identifies Code of Civil Procedure sections 473(b) and 473.5 as the grounds for relief, but the motion advances arguments based on Section 473(b) only. To the extent Pham seeks relief based on Section 473.5, that ground for relief is not available to Pham for the reasons stated in Plaintiff’s opposition.