Judge: Virginia Keeny, Case: 22VECV01482, Date: 2023-05-04 Tentative Ruling

Case Number: 22VECV01482    Hearing Date: May 4, 2023    Dept: W

SOO IL SUH vs HYUNDAI MOTOR AMERICA

defendant’s MOTION TO SET ASIDE DEFAULT

Date of Hearing:        May 4, 2023                                                   Trial Date:       None set.  

Department:              W                                                                    Case No.:        22VECV01482

Moving Party:            Defendant Hyundai Motor America  

Responding Party:     Plaintiff Soo Il Suh

BACKGROUND

This case arises under the Song-Beverly Consumer Warranty Act. Plaintiff Soo Il Suh alleges they purchased a 2022 Hyundai Nexo manufactured and/or distributed by Defendant Hyundai Motor America. The complaint alleges Plaintiff’s vehicle contained several defects and malfunctions including an instrument cluster software update, FCU update, an illuminated fuel cell system error message, air blower replacement, and an illuminated FCEC warning light, among other concerns, resulting in the vehicle being out of service for an unreasonable number of days.

Plaintiff filed a complaint against Defendant on October 6, 2022 alleging 1. Breach of Implied Warranty of Merchantability under the Song-Beverly Warranty Act; 2. Breach of Express Warranty under the Song-Beverly Warranty Act; 3. Breach of Express Warranty under the Magnuson-Moss Warranty Act; 4. Breach of Implied Warranty under the Magnuson-Moss Warranty Act.

[Tentative] Ruling

Defendant Hyundai Motor America’s Motion to Set Aside Default is GRANTED.

discussion

Defendant Hyundai Motor America moves the court to set aside the default and any judgment thereon taken against Defendant on the grounds Defendant did not have actual notice of the lawsuit and has evidence of a reasonable excuse for not timely answering Plaintiff’s complaint.

Defendant Hyundai moves under Code of Civil Procedure sections 473.5 and 473(b). Section 473.5 permits the court to vacate a default 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. (CCP §473.5(a).) The phrase actual notice means genuine knowledge and does not include constructive or imputed notice to the client. (Tunis v. Barrow (1986) 184 Cal.App.3d 1069, 1077.) “A defendant seeking vacation of a default judgment entered against him must further show that his lack of actual notice in time to defend the action was not caused by his inexcusable neglect or avoidance of service.” (Id. at 1077-1078, citing CCP § 473.5(c).) Moreover, it is well established that the court is “not required to accept … self-serving evidence contradicting the process server's declaration.” (Rodriguez v. Nam Min Cho (2015) 236 Cal.App.4th 742, 751.) A motion under Section 473.5 must include “the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.” (CCP § 473.5(b).)

The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. (CCP §473(b).)

The court finds relief available under Code of Civil Procedure section 473(b). First, the court notes the motion is timely. Plaintiff’s request for entry of default was entered January 9, 2023. Three months later, on April 6, 2023, Hyundai filed the instant motion. During that time, Hyundai states they were attempting to engage in a meaningful resolution with Plaintiff. As a result, the motion is timely.

Next, the court finds Hyundai has presented evidence of a reasonable mistake. Hyundai contends they did not have actual notice in time to defend because there was no service of the complaint on the Defendant’s registered agent for service, and, in addition, Plaintiff mailed a demand letter to Defendant’s corporate headquarters only one day before filing this lawsuit. As soon as Defendant realized that a request for an entry of default had been requested, it immediately hired outside counsel.

In opposition, Plaintiff argues Hyundai did have actual notice of the summons and complaint. Plaintiff presents the proof of service indicating both the Summons and Complaint and the Request for Entry of Default were served on the Defendant Hyundai’s registered agent of process of service. (Nita Decl., Exh. A, B.) While the court agrees relief is unavailable under Section 473.5, the court finds Defendant has demonstrated the internal misunderstanding of receiving the demand letter one day before Plaintiff filed the complaint was a reasonable mistake explaining Defendant’s failure to respond.

Plaintiff seeks legal fees in the amount of $995 if the court awards the relief requested. Code of Civil Procedure section 473(b) provides in relevant part that: “The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”

The court grants Plaintiff’s request for fees.

Accordingly, Defendant’s Motion to Set Aside Default is GRANTED. Defendant is ordered to file an answer within 10 days and to pay fees in the amount of $995 within 30 days.