ARMS TRANS INC. VS. S-LOGIBIS USA INC., ET AL.

Tentative Rulings

Case Number: TC028676    Hearing Date: January 07, 2020    Dept: A

# 18. Arms Trans Inc. v. S-Logibis USA Inc., et al.

Case No.: TC028676

Matter on calendar for: Motion to Set Aside Default Judgment

Tentative ruling:

1. Background

   Plaintiff Arms Trans Inc. provides transport, forwarding, warehouse, and trucking services. It acquired a default judgment against Defendants S–Logibis USA Inc., S–Logibis (UK) LTD, and Jae Sung Choi in early 2018. When Plaintiff attempted to enforce the judgment against the Defendants in South Korea, the judgment was unenforceable because Plaintiff had not served Defendants in accordance with South Korean law.

   Plaintiff now moves to set aside the default judgment so that it may effect proper service. No opposition has been filed. For the reasons set forth below, the Court grants the motion.

2. Standard

There are three ways a default judgment may be set aside if the defendant lacks actual notice. First, Code of Civil Procedure § 473.5 may be used when a defendant was properly served but did not receive actual notice of a suit. It is limited to the earlier of (i) 180 days after service of a written notice that default or default judgment has been entered, or (ii) two years after entry of default judgment. (C.C.P., § 473.5(a).) This statute authorizes the setting aside of both default judgment and the underlying default.

Second, is Code of Civil Procedure § 473(d), which allows a court to set aside any void judgment or order. The procedure under subsection (d) depends on whether the judgment is void on its face. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 181.) A judgment is void on its face if its “invalidity appears on the face of the record, including the proof of service. [Citation.] (Ibid.) A facially void judgment may be set aside either by a separate action or via motion. (Ibid.) When a judgment is facially valid, a motion to set aside under subsection (d) must be brought within two years. (Id. at 180.) This is because courts have adopted by analogy the statutory limitation of Code of Civil Procedure § 473.5(a). (Ibid.)

Third, a party may request show that extrinsic fraud or mistake exists. (Trackman, supra, 187 Cal.App.4th at 181.) “[S]uch a motion may be made at any time, provided the party acts with diligence upon learning of the relevant facts. [Citation.]” (Ibid.)

1. Analysis

   Plaintiff is correct that the procedure of this case is unusual as it is traditionally a defendant that will seek to set aside the default judgment. However, Plaintiff’s motion clearly outlines that service was deemed inadequate in South Korea in that Defendants did not receive actual notice. Accordingly, as this motion as brought within two years of the judgment, the judgment and underlying default must be set aside under Code of Civil Procedure § 473.5(a).

2. Ruling

   The motion to set aside the default judgment and entry of default is granted.

   Next dates:

   Notice: