Judge Mark E. Windham, Case Number: 19STLC03906, Date: 2023-08-09 Tentative Ruling

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Karpa Trading, Inc. v. ADIRC Capital LLC, et al.

MOTION FOR RELIEF FROM DEFAULT

Defendant ADIRC Capital LLC’s Motion to Set Aside the Entry of Default is DENIED.

Background

Karpa Trading, Inc. (Plaintiff) filed a Complaint on April 19, 2019. The Complaint alleges that Plaintiff provided restaurant products to ADIRC Capital, LLC (Defendant), and that Defendant never paid for these products. (Complaint, BC-1 & CC-1.) The motion now before the Court is Defendant’s Motion to (1) Set Aside the Entry of Default (2) Grant Leave to File and Serve a New Answer and (3) to Continue Trial. Plaintiff files an opposition, and Defendant files a reply.

“Section 473.5, subdivision (c) allows the court to set aside the default judgment if it finds the defendant's lack of actual notice in time to defend was not caused by the defendant's avoidance of service or inexcusable neglect.” (Ellard v. Conway (2001) 94 Cal. App. 4th 540, 547.) “Section 473.5 requires that the motion to set aside the default judgment 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 ‘a copy of the answer, motion, or other pleading proposed to be filed in the action.’” (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 861.)

ADIRC LLC is an entity defendant, Joseph Lee (Mr. Lee) is the manager of the entity. In their moving papers, Defendant argues that they were not aware that a default had been entered against Defendant ADIRC LLC. The moving papers contend that Mr. Lee is an immigrant from China whose primary language is Mandarin Chinese, and his knowledge of the English language is limited. Defendant further argues that during the period when the answer was stricken (October 23, 2023, see Minute Order for same date) and when default was entered (November 9, 2023, see Request for Entry of Default for same date) Defendant was unrepresented. Although these facts are true, the Court is unpersuaded that Defendant did not receive proper notice.

The Court’s docket reflects that Defendant’s prior counsel, Kenneth I. Gross filed motions to be relieved as counsel and these motions were granted on August 9, 2023. Additionally, notice regarding the answer being struck was provided on October 24, 2023 when Plaintiff’s counsel mailed notice to the addresses of both Mr. Lee and Defendant. (See Opposition Papers, Exh. B.) In a subsequent hearing on December 11, 2023, the Court scheduled a hearing for the default judgment for April 4, 2024. The minute order for December 11, 2023 hearing reflects that a Mandarin interpreter was present and interpreted for Mr. Lee who was also present. It is here where Mr. Lee was given direct notice by the Court of the default entry. Moreover, Mr. Lee and Defendant were fully aware by that time, that a case had been filed against them and that they should keep updated as to the case’s progress. Finally, the notice for default entry was mailed to Defendant on November 9, 2023. (Opposition Papers, Exh. C.)

Defendant’s reply papers are silent as to these points and provide no argument as to why Mr. Lee nor Defendant were unaware of both the answer being struck and the default entry against them. Accordingly, the Motion is denied.

Defendant ADIRC Capital LLC’s Motion to Set Aside the Entry of Default is DENIED.