Judge Randolph M. Hammock, Case Number: 24STCV12439, Date: 2025-03-24 Tentative Ruling

Judge: Randolph M. Hammock, Case: 24STCV12439, Date: 2025-03-24 Tentative Ruling

Plaintiff Ashley Penaloza brings this action for negligence and negligent entrustment against Defendants Jun Z. Lee and Li Chengri. While crossing a marked crosswalk, Plaintiff alleges she was struck by a van driven by Defendant Jun Z. Lee and owned by Defendant Li Chengri. [FN 1]

Based on the discussion infra, this court will permit Defendant to file and serve a certified English declaration that addresses the issues raised in the Tentative. That declaration is due within 21-days of this Ruling. Plaintiff will then have 10-days to file a supplemental opposition to the declaration.

Defendant’s Notice of Motion cites CCP 473(d) [FN 2] as the only basis in support of the motion. However, this Code section is not discussed in the motion. Instead, Defendant seeks relief under CCP section 473.5. Therefore, the court focuses its attention there. Code of Civil Procedure § 473.5 subdivision (a) provides:

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.

Relief under section 473.5 is available only where the defendant’s lack of actual notice “was not caused by his or her avoidance of service or inexcusable neglect.” (§ 473.5, subd. (b).) 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.” (Id.)

In support, Defendant has provided a non-English document which appears to be a declaration. (See Motion, Exh. E.) The declaration is presumably written in Mandarin, which this court understands is Defendant’s primary language. (See Reply 2: 1 [stating that counsel has communicated with Defendant “through a Mandarin translator”].) Defendant’s Reply references an “English Translation” of that document purportedly attached to the motion as Exhibit E. However, Exhibit E contains only the non-English version. As far as this court can tell, no English translation of the declaration has been provided.

Under California Rules of Court, Rule 3.1110(g), “[e]xhibits written in a foreign language must be accompanied by an English translation, certified under oath by a qualified interpreter.” Plaintiff’s failure to do so here means he has not provided a competent declaration to support this motion. That alone is a basis to deny this motion.

In the absence of any declaration or other evidence to the contrary, the court can base its ruling on only the following facts. A registered California process server served the Defendant by substitute service on July 24, 2024, at 187 S. Oxford Ave, APT 206, Los Angeles, CA 90004. (See 07/25/24 Proof of Service of Summons.) The process server visited the residence thirteen times in June and July of 2024 but could not make contact with any residents. (See id., Affidavit of Reasonable Diligence.) On the last attempt, on July 24th at 10:27 PM, the process server effectuated substitute service by leaving the summons and complaint with “John Doe,” who “would not divulge [his] name.” (Proof of Service, ¶ 5(b).) John Doe is described as a “Co-Occupant and Competent Member of the Household,” male, aged 50, 145 pounds, 5’6” tall, black eyes, black hair, and Asian. (Id.) The following day, the process server mailed the documents to the S. Oxford address. (See Proof of Service By Mail.)

A registered process server's declaration of service creates a rebuttable presumption of proper service. (Am. Express Centurion Bank v. Zara (2011) 199 Cal. App. 4th 383, 390.) Defendant cannot merely assert that service was invalid without providing competent evidence in support. Considering the evidence presented, the court concludes that Defendant was properly served by substitute service. Therefore, any contention that service is “void” is without merit.

Second, relief under 473.5 is available only where “service of a summons has not resulted in actual notice.” But here, only three days after his default was entered, Defendant appeared at the September 16, 2024, Case Management Conference, albeit after the case had been called. (See 09/16/2024 Minute Order.) He also appeared at the continued Case Management Conference on December 19, 2024. (See 12/19/2024 Minute Order.) This means Defendant had actual notice of the action as of September 16, 2024 at the absolute latest. Presumably, Defendant received the summons and complaint in the mail when it was substitute served on him.

Finally, and somewhat relatedly, the motion presents a glaring timing issue. While the two-year and 180-day hard deadlines do not appear at issue here, section 473.5 still requires the motion be “filed within a reasonable time.”

Again, Defendant had actual notice of the action as of at least September 16, 2024, but did not file this motion to set aside the default until February 21, 2025. This unexplained delay of over 5 months cannot be deemed reasonable.

Therefore, the court concludes relief under section 473.5 may be unavailable here because (1) Defendant has not provided a competent declaration, (2) Defendant had “actual notice” of the action in time to respond to the complaint, and (3) Defendant did not move within a “reasonable time.”

Be that as it may, this court is mindful that the statutes affording relief from defaults are generally liberally construed so that actions can be determined on their merits. (Ellard v. Conway (2001) 94 Cal.App.4th 540, 547 [section 473.5 is construed liberally “so that cases may be resolved on their merits”].) The court is also aware that there exists a genuine language barrier and believes Defendant’s representations have been made in good faith.

With this in mind, the court will permit Defendant to file and serve a certified English declaration that addresses the issues raised in the Tentative. That declaration is due within 21-days of this Ruling. Plaintiff will then have 10-days to file a supplemental opposition to the declaration.

Judge of the Superior Court

FN 1 - Defendant’s Motion indicates that Jun Z. Lee and Li Chengri are the same individual.

FN 2 - This section gives the court discretion to “set aside any void judgment or order.” (CCP § 473(d).) To the extent Defendant might rely on this section, there is no evidence that any order in this case is “void.”