Judge: Mark E. Windham, Case: 20STLC07767, Date: 2022-10-12 Tentative Ruling

Case Number: 20STLC07767    Hearing Date: October 12, 2022    Dept: 26

MOTION TO VACATE ENTRY OF DEFAULT

(CCP § 473(b))

SERVICE: 

[X] Proof of Service Timely Filed (CRC 3.1300) NO

[X] Correct Address (CCP 1013, 1013a) NO

[X] 16/21 Day Lapse (CCP 12c and 1005 (b)) NO

SUMMARY OF COMPLAINT: Action for negligence, trespass to chattles, and cost of repair under Public Utilities Code section 7952.

RELIEF REQUESTED: Vacate entry of default due to Defendant’s excusable neglect and inadvertence in not timely answering the Complaint.

OPPOSITION: None filed as of October 10, 2022.    

REPLY: None filed as of October 10, 2022.   

TENTATIVE RULING:

Defendant Prieto & Galindo, Inc.’s Motion to Vacate Entry of Default is DENIED. THE ANSWER OF DEFENDANT PRIETO & GALINDO, INC. FILED ON AUGUST 16, 2022 IS HEREBY STRUCK PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 436, SUBDIVISION (B).

ANALYSIS:

Plaintiff Southern California Edison (“Plaintiff”) filed the instant action for recovery of negligence, trespass to chattles and cost of repair under Public Utilities Code section 7952 on September 14, 2022. Defendant Prieto & Galindo, Inc. (“Defendant Prieto”) was added by doe amendment on March 16, 2022 and served with the Summons and Complaint on May 21, 2022. (Proof of Service, filed 05/26/22.)

Following Defendant Prieto’s failure to file a responsive pleading, the Court entered its default on July 8, 2022. Defendant Prieto filed the instant Motion to Vacate Default on August 16, 2022. No opposition has been filed to date.

Discussion

First, the Motion is not accompanied by a proof of service demonstrating that any other party in this action was served with the moving papers and notice of hearing. Failure to give notice of a motion is not only a violation of the statutory requirements but of due process. (Code Civ. Proc., § 1005; Jones v. Otero (1984) 156 Cal.App.3d 754, 757.) The relief requested cannot be granted without proper notice to the other parties.

Substantively, Defendant Prieto moves to vacate the entry of default 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.) The motion must also be accompanied by a copy of the moving defendant’s proposed pleading. (Code Civ. Proc., § 473, subd. (b).) 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 brought pursuant to the provision for discretionary relief based on party fault, the request must have been filed within a reasonable amount of time.

The Motion was timely filed just five weeks after entry of default. Also, although not technically corret, the Motion was concurrently filed with Defendant Prieto’ Answer. However, while the Motion is accompanied by an affidavit demonstrating that the default was entered due to Defendant Prieto’s failure to timely secure counsel, the Court finds the declaration fails to show mistake, inadvertance, suprise or excusable neglect. Defendant Prieto’s president, Jaime Prieto (“Prieto”), declares that he did not realize there was a deadline to file a response to the Complaint due to needing a translator to understand the Summons packet. (Motion, Prieto Decl., ¶3.) Upon searching for attorneys, Prieto realized he could not afford one at the time and had to wait until July 2022 to retain counsel. (Id. at ¶¶4-5.) However, the declaration appears contradictory by simultaneously claiming Prieto could not understand the Summons packet without a Spanish translation, while the declaration itself is in English. If Prieto was capable of understanding the contents of his own declaration, which is signed under penalty of perjury, it strains credulity to believe he did not understand the admonition on the Summons that a response is required within 30 days.

Conclusion

Therefore, Defendant Prieto & Galindo, Inc.’s Motion to Vacate Entry of Default is DENIED. THE ANSWER OF DEFENDANT PRIETO & GALINDO, INC. FILED ON AUGUST 16, 2022 IS HEREBY STRUCK PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 436, SUBDIVISION (B).

Court clerk to give notice.