Judge: Douglas W. Stern, Case: 20STCV25912, Date: 2023-10-12 Tentative Ruling

Case Number: 20STCV25912    Hearing Date: December 13, 2023    Dept: 68

D&D Building Solutions, Inc., vs. AMW Construction, Inc., et al., 20STCV25912

Motion to Vacate Default

Moving Parties – Defendants AMW Construction, Inc., Anthony Whitson, Jr, and La Taun Whitson

Moving Party’s Position

            Defendants AMW Construction, Inc., Anthony Whitson, Jr, and La Taun Whitson (Defendants) move to vacate default pursuant to CCP § 473(b). (No default has yet been entered against Defendant AMW Constructions, Inc.)  The defaults of Anthony M. Whitson, Jr. and La Taun Whitson were entered on August 22, 2023.  They make this motion based on their contention that they failed to respond to the complaint due to mistake, inadvertence, surprise, or neglect.

            Defendants Anthony Whitson and La Taun Whitson previously filed answers in pro per on June 28, 2023.  They sought fee waivers at that time for the filing fee.  The waivers were denied on June 29, 2023, and Defendants were notified that they had to pay their fees or the answers would be stricken.  The answers were voided on August 7, 2023.

On August 22, 2023, Plaintiff D&D Building Solutions filed requests for entry of default against Defendants. Due to the clerk’s rejection, default was not entered against Defendant AMW Construction, and a subsequent attempt to enter default was rejected on September 11, 2023.

            Defendants retained counsel in October 2023 after learning that AMW Construction had to be represented by an attorney. Defendants filed this motion, along with a joint proposed answer attached as Exhibit B to the motion, on November 6, 2023. No opposition has been filed.

Analysis

            CCP Section 473(b) states as follows:

The court may, upon any terms as may be just, relieve a party…from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. 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, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.

Further, the law favors hearings on the merits, so any doubts as to the application of section 473 should be resolved in favor of the party seeking relief from default. (See Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1139-1140.)

In this case, Defendants filed their motion to vacate default within 6 months of Plaintiff’s requests for entry of default. Defendants’ motion to set aside default was in the proper form and was accompanied by the answer which is to serve as Defendants’ responsive pleading to Plaintiff’s complaint. Because the clerk rejected the requests for entry of default for Defendant AMW Construction, this motion was not necessary as to it. As for Defendants Anthony Whitson and La Taun Whitson, the Court finds that there was excusable neglect justifying the vacation of the entry of default.

The Court GRANTS Defendants’ motion to vacate default.

ORDER

1.      Defendants’ motion to vacate default is GRANTED.