Judge: Mark E. Windham, Case: 21STLC06858, Date: 2023-05-24 Tentative Ruling
Case Number: 21STLC06858 Hearing Date: May 24, 2023 Dept: 26
Sackley v. Roth, et al.
MOTION TO VACATE JUDGMENT
(CCP § 473(b))
TENTATIVE RULING:
Defendant Nick Roth dba Nick
Roth & Co.’s Motion to Vacate Judgment is DENIED.
ANALYSIS:
Plaintiff Stuart Sackley (“Plaintiff”)
filed the instant action for breach of lease agreement against Defendant Nick
Roth dba Nick Roth & Co. (“Defendant”) on September 21, 2021. Defendant
filed an answer and cross-complaint on January 7, 2022. Following a trial at
which Defendant failed to appear, judgment was entered in favor of Plaintiff.
(Judgment, 03/21/23.)
Defendant filed the instant
Motion to Judgment on April 14, 2023. Plaintiff filed an opposition on May 8,
2023 and Defendant filed a reply declaration on May 17, 2023.
Discussion
Defendant
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 is brought based on
the fault of Defendant in failing to appear for trial. The Motion was timely
filed three weeks after entry of judgment and is supported by Defendant’s
declaration of fault. Defendant declares that he was never given notice of the
trial date, and as a result, failed to appear on March 21, 2023. (Motion, Roth
Decl., ¶19.) It appears that Defendant did not realize notice of the trial date
was set forth on the Third Amended Standing Order, which was personally served
on him with the summons and complaint. (Third Amended Standing Order, 09/21/22,
¶2.) Defendant declares he was not served with any other papers after filing
the answer and cross-complaint and believed the case had been dropped. (Motion,
Roth Decl., ¶19.) However, Defendant was also served with Plaintiff’s answer to
the cross-complaint on February 11, 2022. (Cross-Complaint, filed 02/14/22, p.
6.)
The declaration does not
demonstrate that Defendant’s mistake about the trial date was excusable. A
review of all the papers served at the commencement of the action would have
given Defendant notice of the trial date. It was not reasonable for Defendant
to have failed to review all the papers with which he had been served. Nor was
it reasonable for Defendant to assume the case had been dropped without any
notice from Plaintiff or the Court, and after Plaintiff served Defendant with
the answer to the cross-complaint.
Conclusion
Therefore, Defendant Nick Roth
dba Nick Roth & Co.’s Motion to Vacate Judgment is DENIED.
Court clerk to give notice.