Lemus vs. BluKey

or dismissal, or within 180 days after entry of judgment, whichever is first.” (Cal. Rules of Court, rule 3.1700(a).)

The nonprevailing party then has 15 days after service of the memorandum of costs to file a motion to strike a cost altogether, or to tax the cost and reduce it. (Cal. Rules of Court, rule 3.1700, subd. (b).)

If the items on a memorandum of costs appear to be proper on their face, the verified memorandum of costs is prima facie evidence of their validity and the burden is on the party seeking to strike or tax costs to show they were not reasonable or necessary. (Ladas v. California State Auto. Ass’n, supra, 19 Cal.App.4th at p. 774.; see also Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131 [“If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they are not reasonable or necessary.”].)

Here, Plaintiff timely filed its memorandum of costs prior to the date on which judgment was entered. (See Cal. Rules Court, rule 3.1700(a)(1) [deadline to file and serve memorandum of costs is earlier of 15 days after service of notice of entry of judgment or 180 days after entry of judgment].)

Plaintiff seeks $798.80 in costs.

Defendant did not file a motion to strike or costs and in its opposition to the motion, Defendant did not object to any of Plaintiff’s claimed costs.

Thus, Defendant has waived any arguments regarding the costs. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288 [failure to address or oppose issue in motion constitutes waiver of that issue]; see DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 566 [holding that failure to challenge contention in brief results in the concession on that issue].)

The court will awards Plaintiff costs of $798.80.

Plaintiff shall give notice of this ruling.

5 Lemus vs. BluKey Motion to Set Aside

Defendant Hung Nguyen’s Motion to Vacate and Set Aside 30-2023-01303205 Entry of Default and Default Judgment is GRANTED.

The Entry of Default against Defendant Hung Nguyen dated June 27, 2024 (ROA #48) is VACATED.

The Judgment by Default entered by the court dated September 4, 2025 (ROA #68) is VACATED as to Defendant Hung Nguyen.

Defendant Hung Nguyen is ORDERED to review and amend the proposed answer and to file and serve an answer that is compliant with the requirements of the Civil Procedure Code and California Rules of Court within 30 days of this ruling.

Pending Motion

Defendant Hung Nguyen moves to set aside the default entered against him on June 27, 2024 by Plaintiff Jonathan Lemus (Plaintiff) and the default judgment entered against him on September 4, 2025.

Standard to Set Aside Entry of Default and Default Judgment

Civil Procedure Code section 473.5 provides that:

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 or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action.

(Code Civ. Proc., § 473.5, subd. (a).)

A motion brought pursuant to Section 473.5 must be “accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect” as well as “a copy of the answer, motion, or other pleading proposed to be filed in the action.” (Code Civ. Proc., § 473.5, subd. (b).)

Further, Civil Procedure Code section 473(d) states that “[t]he court . . . may, on motion of either party after notice to the other party, set aside any void judgment or order.” ((Code Civ. Proc., § 473, subd. (d).)

In fact, “if a default judgment was entered against a defendant who was not served with a summons as required by statute, the judgment is void, as the court lacked jurisdiction in a fundamental sense over the party and lacked authority to enter judgment.” (Kremerman v.

White (2021) 71 Cal.App.5th 358, 370.)

“Because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233, superseded by statute, on other grounds, as discussed in Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 64.) “Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted.” (Ibid.)

Here, Plaintiff applied for an order to serve Defendant Hung Nguyen with the Summons and the Complaint – Personal Injury, Property Damage, Wrongful Death (Complaint) by publication. (See ROA #44.)

Plaintiff’s application stated that the Orange County Reporter would most likely give actual notice to Defendant. (See ibid.)

The court then issued an order allowing service of the Summons and Complaint to be effectuated by publication the Orange County Reporter. (See ibid.)

On June 25, 2024, Plaintiff filed a proof of service showing that the Summons and Complaint had been published in the Orange County Reporter on April 17, 2025; April 24, 2024; May 1, 2024; and May 8, 2024. (See ROA #46.)

As a result, on June 27, 2024, default was entered against Defendant Hung Nguyen, (see ROA #48), and on September 4, 2025, a default judgment in the amount of $1,107,220.11 was issued against Defendant Hung Nguyen, among others, (see ROA #68).

However, with this motion, Defendant Hung Nguyen submitted a declaration stating that he has resided continuously in Waco, Texas since approximately February 2023. (See Decl. of Hung Nguyen, ¶ 2.)

Defendant Hung Nguyen averred that because lives in Texas, he had no knowledge of the publication of the Summons and Complaint and no reason to see it. (See id., ¶ 5.)

He also declared that he was never personally served with the Summons and Complaint and did not receive notice of this lawsuit by mail, electronic mail, or any other means. (See id., ¶ 3.)

Defendant Hung Nguyen further stated that he was informed only in March of 2026 that Plaintiff attempted to serve him by publication. (See id., ¶ 4.)

Thus, Defendant Hung Nguyen had no actual notice of this lawsuit until after a default had been entered, when his daughter informed him. (See id., ¶ 6.)

Defendant Hung declares that, immediately upon learning of the matter, he retained counsel and took prompt action. (See id., ¶ 8.)

Defendant Hung Nguyen further asserts that he does not know Plaintiff and never hired him. (See id., ¶ 7.)

Defendant Hung Nguyen also attaches a proposed answer to his declaration. (See id., ¶ 9, Exh. B.)

Here, Defendant Hung Nguyen has met his burden to show that he meets the requirements of Section 473.5 and 473(d).

For service by publication, the Civil Procedure Code requires that the summons be published in a newspaper that is most likely to give actual notice to the party being served. (See Civ. Proc. Code § 415.50, subd. (b).)

While Plaintiff’s application for service by publication satisfied the prerequisites necessary for the court to grant said application and to permit publication in the Orange County Reporter, Defendant presents unchallenged evidence that he did not reside in Orange County, or even in the State of California, at the time service via publication was performed.

Thus, Defendant has established that publication in the Orange County Reporter was not most likely to give him actual notice and, in fact, did not give him actual notice of the lawsuit against him.

In response, Plaintiff has not filed an opposition or responded to motion. Thus, Plaintiff has waived any arguments regarding setting aside the entry of default and default judgment against Defendant Hung Nguyen. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288 [failure to address or oppose issue in motion constitutes waiver of that issue]; see DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 566 [holding that failure to challenge contention in brief results in the concession on that issue].)

Therefore, given the liberal policy of favoring a determination on the merits, the court will grant the motion to set aside.

However, the proposed answer attached to the Declaration of Hung Nguyen is riddled with typographical errors and nonsensical sentences and paragraphs.

Therefore, the court will order that Defendant Hung Nguyen review and amend the proposed answer and file the proposed answer only after it is modified to be compliant with the Civil Procedure Code and California Rules of Court.

Defendant Hung Nguyen shall give notice of this ruling.

6 Perez vs. General Motors, Motion to Strike and/or Tax Costs LLC Defendant General Motors LLC’s Motion to Tax Counsel’s Memorandum of Costs is DENIED. 30-2024-01425638 Plaintiffs Arturo Perez and Maria Torres are ORDERED to file and serve and Amended Memorandum of Costs that includes the actual cost of a court reporter for the hearing on this motion.

Pending Motion

Defendant General Motors LLC moves to tax $1,073.68 of the $1,609.88 costs contained in Plaintiffs Arturo Perez’s and Maria Torres’ Memorandum of Costs.

Standard to Strike and/or Tax Costs

Generally, the “prevailing party” is entitled as a matter of right to recover costs of suit in any action or proceeding. (See Code Civ. Proc., § 1032, subd. (b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606.)

Civil Procedure Code section 1033.5 enumerates the specific costs that are recoverable by the prevailing party in a civil action. (See Code Civ. Proc, § 1033.5.)

Section 1033.5 also provides that the court may award costs not expressly described in the statute for expenses that are “reasonably necessary to the conduct of the litigation” and are “reasonable in amount.” (Code Civ. Proc, § 1033.5, subd. (c)(2)-(4).)

While the trial court has discretion to decide whether a cost item was reasonably necessary, the trial court does