Judge: Curtis A. Kin, Case: 19STCV32769, Date: 2022-10-20 Tentative Ruling

Case Number: 19STCV32769    Hearing Date: October 20, 2022    Dept: 72

MOTION TO VACATE DEFAULT

Date:               10/18/22 (8:30 AM)

Case:               William Goldstein v. Century West, LLC (19STCV32769)

TENTATIVE RULING:

Defendant Century West, LLC’s Motion to Vacate Default is DENIED.

Defendant Century West, LLC (“Century West”) moves to vacate the default entered against it on April 29, 2022.

No proof of service is attached to the motion. Parties that have appeared in this action must be served all motions. (CCP §§ 1005(b), 1014; Rule of Court 3.1300(a).)  Moreover, Century West did not submit a proposed responsive pleading, as required by CCP § 473(b). (CCP § 473(b) [“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….”].)

Even if the instant motion did not suffer from such procedural defects, as a substantive matter, Century West fails to state any mistake, inadvertence, surprise, or neglect (excusable or otherwise) which caused the default to be entered against defendant.  Such a showing is required to obtain relief under CCP § 473(b), whether it is mandatory based on an attorney declaration of fault or discretionary. Counsel for Century West maintains he informed co-defendant BMW of North America, LLC and plaintiff of his position that, regardless of the result in the principal action (presumably referring to plaintiff’s claims against co-defendant BMW of North America, LLC (“BMW”)), Century West would not be liable. (Lewis Decl. ¶ 6.) Counsel declares that BMW agreed to indemnify it. (Lewis Decl. ¶¶ 4, 5.) Counsel also declares that he notified BMW’s attorney that he had nothing to offer during “mediation” and that he would “wait and see who won.” (Lewis Decl. ¶ 7.) Counsel also maintains that it was his fault that he did not participate in the arbitration between BMW and plaintiff because he saw no need to incur attorney fees for an action wherein Century West purportedly has no liability. (Lewis Decl. ¶ 11.)

None of these averments address why Century West failed to file any responsive pleading to the Complaint. Even though Century West disputes liability (Lewis Decl. ¶¶ 10, 11), counsel does not explain how this dispute affected his belief regarding the need to respond to the Complaint. While counsel does state that it was his fault that he did not participate in the arbitration (Lewis Decl. ¶ 11), the issue relevant to this motion is why Century West did not respond to the Complaint.  As to that crucial issue, Century West provides no explanation or attorney affidavit of fault.

The motion is DENIED.