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




MOVING PARTY: Plaintiff Cree Powell, et al.


RESPONDING PARTY(S): None as of August 11, 2022




1.      An order granting leave to file a First Amended Complaint.



1.      Motion for Relief is GRANTED.


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.




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.” 



The proof of service attached to the Motion and Declaration of Thomas Dreblow indicates that service was completed via email.




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.




            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.




Dated:             August 16, 2022                      __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court