Case Number: BC479535    Hearing Date: July 15, 2014    Dept: 56

Case Name: Foot Mart Korea Co. Ltd. v. Lee, et al.
Case No.: BC479535
Motion: Motion for Reconsideration
Moving Party: Plaintiff Foot Mart Korea
Responding Party: Defendant Lee

Tentative Ruling: Reconsideration is granted; relief from default is denied.

On 4/3/13 the Court entered default judgment in favor of Plaintiff Foot Mart Korea Co. Ltd. and against Defendants Sung Hee Lee and Sneakerplus. Lee moved to set aside his default and the default judgment against him, which was granted on 4/1/14. Plaintiff now moves for reconsideration of the Court’s 4/1/14 order, pursuant to CCP §1008.

Reconsideration –
CCP §1008 permits a party to move for reconsideration based upon new or different facts, circumstances or law. Plaintiff moves for reconsideration of the 4/1/14 order on the ground that Plaintiff’s counsel was never served with the motion and did not have the opportunity to file opposition to Lee’s motion.

Plaintiff’s motion is supported by the declaration of its attorney of record, who states that he never received Lee’s motion, did receive a notice of the 4/1/14 ruling, and promptly moved for reconsideration after he received the notice of ruling. This is credible and is accepted by the Court.

Lee represented himself in pro per when his motion was filed. Lee’s motion contains a proof of service declaration by James Kim, showing service by mail. However, Lee’s opposition to the motion for reconsideration does not provide a declaration by Kim, Lee or any other evidence affirming that the motion for reconsideration was in fact served upon Plaintiff’s counsel. The notice of ruling was served by an attorney, who began representing Lee at the 4/1/14 hearing.

The Court concludes that Plaintiff’s counsel did not receive Lee’s motion for relief from default. The motion for reconsideration is granted, and the Court will reconsider Lee’s motion for relief from default, including Plaintiff’s opposition arguments and evidence.

Relief from default –
Lee moves to set aside his default and the default judgment against him, pursuant to CCP §473(d) and §473.5.

Plaintiff’s proof of service indicates that the summons and complaint were served by substituted service on 4/12/12 upon “Joong Hee Lee aka Tim Lee, brother and business partner.” Lee states in his 11/29/13 declaration that “I don’t know anyone named Joong Hee Lee” and “I never received the summons and complaint in this case at any time.”

In opposition, Plaintiff has presented evidence that Plaintiff’s counsel was contacted by attorney Nicole Waters on 11/15/12, who stated that she represented Lee. Waters asked for Plaintiff to stipulate to relief from 9/28/12 default that had been taken against Lee. Between 11/15/12 and 11/27/12, the attorneys negotiated over the terms of a possible settlement, but no agreement was ever reached. Lee never moved to set aside his default, and judgment was entered in favor of Plaintiff and against Lee on 4/3/13. Lee then filed a motion to set aside his default and default judgment on 12/10/13.

The Court concludes that Lee’s 11/29/13 declaration is not credible and is deliberately misleading. He states that he never received the summons and complaint “at any time” but he retained Waters to represent him in regard to the complaint in this matter. Waters represented Lee’s interests, tried to set aside his default, and tried to negotiate a settlement of the claims against him. She did all of this before judgment was entered.

Lee is not entitled to relief under CCP §473.5. That provision requires proof that “service of a summons has not resulted in actual notice to a party in time to defend the action.” Well before judgment was entered, Lee knew about this action and retained a lawyer to act on his behalf.

Lee is not entitled to relief under CCP §473(d). Plaintiff’s proof of service establishes all requirements for substituted service upon Lee through “Joong Hee Lee aka Tim Lee, brother and business partner.” In his 11/29/13 declaration Lee states that he doesn’t know Joong Hee Lee, but Lee’s declaration is not credible and is misleading. The declaration says nothing about Tim Lee (the aka for Joong Hee Lee), does not discuss Lee’s connection with the service address, and does not discuss the copies mailed to him.

Lee is not entitled to relief from his default or the 4/3/13 default judgment.

Ruling –
Upon reconsideration, Lee’s motion for relief from default and default judgment is denied. The 4/3/13 judgment is reinstated