Judge: Douglas W. Stern, Case: 23STCV21102, Date: 2024-01-05 Tentative Ruling

Case Number: 23STCV21102    Hearing Date: January 5, 2024    Dept: 68

Silva Donikian vs. Kia America, Inc., et al., 23STCV21102

Motion to Vacate Default

Moving Party – Lou Sobh Cerritos Saturn, Inc.

This lawsuit was filed by Plaintiff on August 31, 2023. It identified 2 defendants. On November 7, 2023 the default of Defendant Lou Sobh Cerritos Saturn, Inc. (“Cerritos Saturn”) was entered by the Court.  However, on November 13, 2023 a First Amended Verified Complaint was filed. There is no indication on the proof of service whether it was served on Cerritos Saturn.  Nonetheless, on December 4, 2023 Defendant Cerritos Saturn filed its Verified Answer to First Amended Complaint.

Moving Party’s Position

Defendant Cerritos Saturn moves to vacate default pursuant to CCP § 473(b). Defendant makes this motion based on the provision of that section that allows for mandatory relief if a party submits an application to vacate default within six months of entry of default, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect. Default was entered against Defendant on November 7, 2023, and this motion was filed on December 5, 2023.

Defendant’s motion is accompanied by an affidavit from its attorney stating that the attorney, Matthew M. Proudfoot, had been retained by both Cerritos Saturn and Defendant Kia America to represent their interests in this matter. (Proudfoot Decl., ¶ 5.) Based on the allegations in Plaintiff’s complaint, Mr. Proudfoot determined that he could not represent both Kia America and Cerritos Saturn, but he failed to notify Cerritos Saturn of this, so they were unknowingly without counsel and failed to respond to Plaintiff’s complaint. (Proudfoot Decl., ¶¶ 5-6.)

Defendant also argues that it may obtain relief from default due to Plaintiff filing a First Amended Complaint that included new facts not in the first iteration of Plaintiff’s complaint. Defendant also argues that it may obtain discretionary relief from default.

No opposition has been filed.

Analysis

CCP Section 473(b) states as follows:

Notwithstanding any other requirements of [§ 473(b)] the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment…unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.

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.)

Defendant filed its motion to vacate default within 6 months of the entry of default because default was entered on November 7, 2023, and Defendant filed this motion on December 5, 2023. Defendant’s motion was accompanied by an affidavit from Defendant’s attorney attesting to the fact that the failure to file a responsive pleading to the complaint was due to mistake.

The Answer to the Verified First Amended Complaint was filed December 4, 2023

ORDER

1.      Defendant’s motion to vacate default is GRANTED.

2.      The Verified Answer to First Amended Complaint is deemed filed December 4, 2023.