Judge Mark E. Windham, Case Number: 19STLC09472, Date: 2023-07-11 Tentative Ruling

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United Investment Realty, Inc., et al. v. Russo, et al.

MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT

Defendant Pablo Nunez’s Motion to Vacate Default and Default Judgment is GRANTED. DEFENDANT IS TO FILE AND SERVE THE RESPONSIVE PLEADING WITHIN 20 DAYS OF THIS ORDER.

On October 15, 2019, Plaintiffs United Investment Realty, Inc. and Sam Oh (“Plaintiffs”) filed the instant action for breach of contract against Defendant Pablo Nunez (erroneously sued as “Pablo N. Russo”) (“Defendant”). Following Plaintiffs’ failure to appear at trial on April 13, 2021, the Court dismissed the action without prejudice. The Court granted Plaintiffs’ motion to vacate the dismissal and reinstated the trial date on May 27, 2021. (Minute Order, 05/27/21.)

Due to Defendant’s failure to file a responsive pleading, the Court entered their default on March 21, 2022 and default judgment on June 6, 2022. Defendant filed a motion to vacate default and default judgment on July 26, 2022, which was never set for hearing. Defendant re-filed the motion on May 11, 2023. The Motion initially came for hearing on July 11, 2023, at which time the Court continued the matter and ordered Defendant to file a supplemental declaration in accordance with Code of Civil Procedure section 2015.5 and with a copy of his proposed responsive pleading. (Minute Order, 07/11/23.)

Defendant filed supplemental papers on August 2, 2023. No opposition has been filed to date.

Defendant moves for relief from the default and default judgment pursuant to Code of Civil Procedure, section 473, subdivision (b). Under this statute, an application for relief must be made no more than six months after entry of the order from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) When based on an attorney affidavit of fault, the relief sought must be granted if the statutory requirements are satisfied. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612.) When based upon party fault, the motion must have been brought within a reasonable time. (Code Civ. Proc., § 473, subd. (b).)

The Court considers the instant motion a re-filing of the one originally filed on July 26, 2022, which was timely filed less than two months after entry of default judgment and just four months after entry of default. The supplemental motion is now accompanied by a declaration that complies with the requirements for such an affidavit under Code of Civil Procedure section 2015.5. It is difficult to understand the supplemental papers and declaration, but it appears that Defendant contends he was living in Ecuador at the time of the purported service of the Summons and Complaint. (Motion, Nunez Decl., ¶1.) This is sufficient to demonstrate that default and default judgment were taken against Defendant by surprise. Finally, the supplemental motion is accompanied by a copy of Defendant’s proposed responsive pleading. (Motion, pp. 5-14.)

Based on the foregoing, Defendant Pablo Nunez’s Motion to Vacate Default and Default Judgment is GRANTED. DEFENDANT IS TO FILE AND SERVE THE RESPONSIVE PLEADING WITHIN 20 DAYS OF THIS ORDER.