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Duong v. Le12/19/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Tuan Duong was severely injured in a coffee shop when a knife-wielding assailant unknown to Duong entered the premises and attacked him and another customer. Duong brought a premises liability action against respondents Hoa Van Le, the alleged manager of the coffee shop, and Bong Thi Tran, an employee, claiming they were aware of prior incidents of violence on the premises but negligently failed to take preventive measures to protect him from assault. The other injured customer, who is not a party to this appeal, had previously filed a separate premises liability lawsuit against Le.
Le and Tran (together the respondents) failed to answer or otherwise respond to the complaint after Duong served them with the summons, complaint and statement of damages, and the court clerk entered their default. Respondents brought a motion to set aside the default, claiming that as a result of their inability to speak English proficiently they could not appreciate that this was a separate action not already being handled by their insurance carrier and counsel. Before the motion could be heard, the court entered a default judgment in favor of Duong in an amount exceeding $673,000. The court thereafter granted respondents' motion.
Duong appeals from the order granting respondents relief from the default and default judgment. Duong contends that (1) the court exceeded its jurisdiction in granting the motion, and the court's order granting relief is void because respondents failed to adhere to statutory requirements, and he did not receive proper notice of the motion; and (2) the court abused its discretion in granting the motion because respondents' excuse that they were unable to proficiently speak English does not constitute an extrinsic mistake that would justify granting them relief. We reject these contentions and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2000, Duong suffered severe knife wounds in Café 2000, a coffee shop allegedly managed by Le and Tran. Duong was injured when a machete-wielding assailant he did not know entered the premises and attacked him and another customer, Troung Hieu Do (Do).
The Prior Lawsuit (Do v. Le)
In September 2001, Do brought a premises liability action (the Do lawsuit) against both Café 2000 and Le, as the alleged owner of Café 2000. Do alleged Café 2000 and Le knew their customers would be placed in danger as a result of threats Le had received from a criminal street gang, and Do's injuries resulted from their negligent failure to warn or protect him from that gang. Attorney J. Marcus Day represented Le and Café 2000 in that matter and filed an answer to Do's complaint on their behalf on November 2, 2001.
Duong's Lawsuit and the Clerk's Entry of Default Against Respondents
On October 29, 2001, Duong's counsel mailed a letter to respondents' claims adjuster in an unsuccessful attempt to negotiate a settlement of Duong's claim. The letter was addressed to the senior commercial claims representative assigned to handle all claims resulting from the incident from which this action and the Do lawsuit arose. The claims representative spoke with Duong's counsel on several occasions before Duong filed his complaint.
On November 16, 2001, Duong filed his personal injury complaint against Le and Tran, allegi
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