Judge: Kristin S. Escalante , Case: 22STCV29981, Date: 2023-05-09 Tentative Ruling

Case Number: 22STCV29981    Hearing Date: May 9, 2023    Dept: 24

The Motion to Set Aside/Vacate Default reservation no.: 561527487738 filed by Defendant Genesis of South Bay Hyundai on 04/03/2023 is GRANTED

Defendant Genesis of South Bay Hyundai (“Defendant”) moves to vacate the entry of default on the grounds the default was entered as a result of mistake, inadvertence, and/or excusable neglect by Defendant. (Notice of Mtn., at p. 2; Code Civ. Proc., § 473, subd. (b).)

By way of background, on September 14, 2022, Plaintiff Alberto Munoz (“Plaintiff”) filed suit against Hyundai Motor America (“Hyundai”) and Defendant (collectively “Defendants”) alleging claims arising from his purchase of a pre-owned 2017 Hyundai Sonata. On November 9, 2022, Plaintiff filed a proof of service with the court as to Defendant. Defendant failed to respond. As a result, later that month Plaintiff sought, and obtained, an entry of default against Defendant. Default was entered on December 06, 2023. Defendant timely filed the motion to vacate the default on April 3, 2023. (see Code Civ. Proc., § 473 subd. (b).)

DISCUSSION

The “court shall, whenever an application for relief is made no more than six months after entry of judgment, is in its proper form, and is accompanied by an attorney’s sworn affidavits attesting to his or her mistake, inadvertences, surprise, or neglect, vacate any . . . dismissal entered against his or her client. . .” (Code Civ. Proc., § 473 subd. (b).) Relief from judgment on the grounds provided is remedial in its nature and is to be liberally construed so as to dispose of cases on

their merits. (Hover v. Mackenzie (1954) 122 Cal.App.2d 852, 856; see also Ramsey Trucking Co v. Mitchell (1961) 188 Cal.App.2d Supp. 862, 867.)

The court finds defendant meets the standards to set aside the default. Defendant moves to vacate the default on the grounds mistake. Specifically, after Plaintiff served Defendant, Defendant tendered the claim to Hyundai Motor America (“HMA”) and believe it to be a lemon law case which Hyundai would represent Defendant on. Typically, when Hyundai does not agree to defend the suit, HMA advises Defendant. In the present case, HMA did not advise Defendant that Hyundai did not believe the suit was a lemon law case. As a result, either through mistake, inadvertence or excusable neglect, Defendant believed Hyundai was representing it and did not timely respond to the pleadings. Once Defendant became aware of Hyundai’s lack of representation, the default had already been entered against it. Accordingly, Defendant now seeks to vacate the default.

In conjunction with the motion, Defendant submits the declarations of Kelly Chacon and Chelsea Zwart. Chacon is the director of customer relations for Defendant. She attests to sending the tender to HMA and upon sending it, not “thinking about it again.” (Chacon Decl., ¶¶ 1-6.) It was only after Default was entered that HMA contacted Chacon. (Chacon Decl., ¶ 8.) Zwart is Defendant’s counsel and attests to being retained in the lawsuit in January. (Zwart Decl., ¶4) Afterwards Zwart contacted Plaintiff regarding obtaining a stipulation to set aside the default. Upon not receiving a response after several follow-up emails, Zwart filed the present motion. (Zwart Decl., ¶¶5-10.) Zwart attaches Defendant’s proposed Answer. (Zwart Decl., ¶13, Ex. F.)

The court disagrees with Plaintiff that Defendant has not acted diligent because several months lapsed from when Defendant learned of the default and when Defendant filed the motion to vacate. Defendant’s counsel provides that the delay was caused by the time counsel spent determining the underlying mistake that led to the default. Accordingly, Defendant acted diligently. The court also disagrees that Defendant’s conduct does not amount to excusable neglect because of the length of time which lapsed. Again, the delay in time is explained by Defendant’s counsel as counsel prepared the documents for the motion and requested from Plaintiff a stipulation to set aside the default. Finally, Plaintiff’s argument regarding whether Defendant may file a demurrer has no bearing on the present motion and the court does not address it.

The request for fees is denied, as Plaintiff premised the request on Code of Civil Procedure Section 473’s mandatory relief language. The court did not grant mandatory relief based on an attorney’s affidavit of fault. The default was entered through the fault of Defendant prior to obtaining representation.

The motion is granted.

Moving party is directed to give notice.