Judge: Upinder S. Kalra, Case: 21STCV28907, Date: 2022-08-16 Tentative Ruling
Case Number: 21STCV28907 Hearing Date: August 16, 2022 Dept: 51
Tentative Ruling
Judge Upinder S.
Kalra, Department 51
HEARING DATE: August
16, 2022
CASE NAME: Cree
Powell, et al. v. Kia Motors America, Inc.
CASE NO.: 21STCV28907
PLAINTIFF’S
MOTION FOR RELIEF UNDER CCP § 473 FOR FAILURE TO TIMELY FILE FAC
MOVING PARTY: Plaintiff Cree Powell, et al.
RESPONDING PARTY(S): None as of August 11, 2022
REQUESTED RELIEF:
1. An
order granting leave to file a First Amended Complaint.
TENTATIVE RULING:
1. Motion
for Relief is GRANTED.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On August 5, 2021, Plaintiffs Cree Powell and Tamara Lanett
Johnson (“Plaintiffs”) filed a complaint against Defendant Kia Motor America,
Inc. (“Defendant”). The complaint alleged four causes of action based on
violations of Song-Beverly and fraud. The complaint alleges that Plaintiffs
purchased the Subject Vehicle, which contained warranties. Defendant
manufactured the Subject Vehicle; however, the Subject Vehicle contained defects
that were unable to be repaired properly. Plaintiff also alleges that the
engine defect was known to Defendant and Defendant actively concealed this
defect.
Defendant filed a Demurrer with a Motion to Strike on
September 8, 2021, which was SUSTAINED with leave to amend.
On February 8, 2022, the Court issued a Minute Order,
granting leave to amend within 20 days.
Defendant filed an Answer on April 13, 2022.
Plaintiff filed this current Motion for Relief on April 21,
2022. Plaintiff filed a Notice of Non-Opposition on August 9, 2022. As of
August 11, 2022, Defendant has not filed an responsive document.
LEGAL STANDARD
California Code of Civil Procedure
section 473, subdivision (a)(1) provides, in relevant part: “The court may, in
furtherance of justice, and on any terms as may be proper, allow a party to
amend any pleading or proceeding by adding or striking out the name of any
party, or by correcting a mistake in the name of a party, or a mistake in any
other respect; and may, upon like terms, enlarge the time for answer or
demurrer. The court may likewise, in its discretion, after notice to the
adverse party, allow, upon any terms as may be just, an amendment to any
pleading or proceeding in other particulars; and may upon like terms allow an
answer to be made after the time limited by this code.”
Service:
The proof of service attached to the Motion and Declaration
of Thomas Dreblow indicates that service was completed via email.
ANALYSIS:
Plaintiff moves for relief under CCP § 473, for failure to
file a timely First Amended Complaint.
Under either the mandatory provision or discretionary
provision of CCP § 473, relief is warranted. On February 8, 2022, the Court
sustained the Defendant’s demurrer as to the third and fourth cause of action
and granted leave to amend within 20 days. However, Plaintiff missed this
deadline due to a clerical error.
Plaintiff contends that the
mandatory provision under CCP § 473(b) allows for relief. Under this section,
the court shall grant relief if the resulting “default judgment or dismissal”
was entered because of the attorney’s mistake, inadvertence, surprise or
neglect. Even if the mandatory provision did not apply, the discretionary
provision allows the court to relieve a party of an action taken against him
through mistake, inadvertence, surprise or excusable neglect.
A party seeking discretionary relief on the ground of
attorney error must demonstrate that the error was excusable, since the
attorney's negligence is imputed to the client.” (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1419 [71 Cal.Rptr.3d 65,
74], as modified (Jan. 16, 2008).
“It is the general rule
that amendments to pleadings should be liberally allowed.” (Simons v. Kern County (1965) 234
Cal.App.2d 362, 367). “[T]he purpose of the mandatory relief provision under
section 473, subdivision (b) is achieved by focusing on who is to blame, not why. Indeed, in many cases, the reasons
for the attorney's mistake, inadvertence, surprise, or neglect will be
irrelevant; that is because, as noted above, the mandatory relief provision
entitles a party to relief even when his or her attorney's error is inexcusable.”
(Martin Potts & Associates, Inc. v.
Corsair, LLC (2016) 244 Cal.App.4th 432, 439).
Here,
Plaintiff seeks relief because of an untimely First Amended Complaint. However,
CCP § 473(b) concerns situations where a party is seeking relief from a
“judgment, dismissal, order, or other proceeding taken against him or her”
because of a mistake. Here, Plaintiff failed to file a timely FAC, but
Defendant did not seek a default; rather, Defendant filed an Answer.
Section
473(b) provides for both discretionary and mandatory relief.” (Pagnini
v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) Defendants seeks
relief under the mandatory provision of the statute based on his counsel’s
mistake, inadvertence, surprise, or neglect. When based on an attorney
affidavit of fault, the relief sought must be granted if the statutory
requirements are satisfied. (Leader v.
Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612.) Here,
counsel has filed a declaration of fault that meets the statutory requirements.
Accordingly, the request is granted.
Conclusion:
For
the foregoing reasons, the Court decides the pending motion as follows:
Motion for
Relief is GRANTED.
Plaintiff
is to separately file an amended complaint within five days of service of this order.
Defendant is to file a responsive pleading within 30 days of service of the First
Amended Complaint.
Clerk to give notice.
IT IS SO ORDERED.
Dated: August
16, 2022 __________________________________ Upinder
S. Kalra
Judge
of the Superior Court