Judge: Mark E. Windham, Case: 20STLC09442, Date: 2023-12-13 Tentative Ruling

Case Number: 20STLC09442    Hearing Date: December 13, 2023    Dept: 26

Key Star Capital Fund II, LP v. Global Concepts Group, Inc., et al.

VACATE DEFAULT AND DEFAULT JUDGMENT; QUASH SERVICE

(CCP §§ 473(b), 473.5)

TENTATIVE RULING:

Defendant Ali Timaji’s Motion to have Entry of Default Set Aside is DENIED.

ANALYSIS:

On November 9, 2020, Plaintiff Key Star Capital Fund II, LP (“Plaintiff”) filed the instant action for breach of contract, breach of guaranty, common counts, unjust enrichment, and foreclosure of security interest against Defendants Global Concepts Group, Inc. (“Defendant GCG”), Ali Timaji (“Defendant Timaji”), and Brenda Manning (“Defendant Manning”). Following Defendants’ failure to file responsive pleadings, the Court entered their default on December 23, 2020. Default judgment was entered against Defendants on November 9, 2021. Notice of entry of judgment was served on Defendants on November 23, 2021. (Notice of Entry of Judgment, p. 2.)

On October 25, 2023, Defendant Timaji filed the instant Motion to Set Aside Entry of Default. Plaintiff filed an opposition on December 1, 2023.

Discussion

Defendant Timaji moves to vacate the entry of default pursuant to Code of Civil Procedure section 473, subdivision (b), or section 473.5. As an initial matter, the Court notes that Defendant Timaji only moves to vacate the entry of default entered on December 23, 2020 but not the default judgment of November 9, 2021. (Motion, p. 1:25-27.)

Under Code of Civil Procedure section 473, subdivision (b), 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).) This can be corrected if Defendant submits a proposed responsive pleading by the hearing date. (Code Civ. Proc., § 473, subd. (b); Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 403.)

The instant Motion was not timely filed within six months of entry of default on December 23, 2020. The six-month deadline is jurisdictional and not subject to tolling. (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.) Therefore, Defendant Timaji cannot obtain relief under Code of Civil Procedure section 473, subdivision (b).

The Motion is also brought under Code of Civil Procedure section 473.5, subdivision (a), which provides:

When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action.  The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.

(Code Civ. Proc., § 473.5, subd. (a).) Additionally, the motion “shall be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.” (Code Civ. Proc., § 473.5, subd. (b).)

First, it is not clear that the Motion is timely under this statute. Notice of entry of judgment was served on Defendant Timaji on November 23, 2021 and 180 days thereafter was May 22, 2022. S the instant Motion was not filed and served by May 22, 2022, it is arguably untimely. Plaintiff also presents evidence that Defendant Timaji was aware of this action following service of the notice of entry of judgment and called Plaintiff’s counsel to discuss the action on November 30, 2021. (Opp., Sweeny Decl., ¶3.) No explanation is provided as to why this action was not filed until almost two years after Defendant called, which delay is unreasonable. Additionally, the Motion is not accompanied by a declaration that shows under oath that Defendant Timaji’s lack of actual notice in time to defend the action was not caused by avoidance of service or inexcusable neglect. (Motion, Timaji Decl., ¶¶B-E.) This declaration is required before relief under Code of Civil Procedure section 473.5 can be granted. Finally, the Motion is not accompanied by a copy of Defendant Timaji’s proposed responsive pleading, which is also required under this statute. Therefore, Defendant Timaji has not demonstrated that relief is proper under Code of Civil Procedure section 473.5.

Conclusion

Defendant Ali Timaji’s Motion to have Entry of Default Set Aside is DENIED.

Court clerk to give notice.