Judge: Mark E. Windham, Case: 21STLC07658, Date: 2023-05-23 Tentative Ruling
Case Number: 21STLC07658 Hearing Date: May 23, 2023 Dept: 26
Southern California Gas Co., et al.
MOTION TO VACATE ENTRY OF DEFAULT
TENTATIVE RULING:
Defendants Sandra R. Hernandez
and Daniel Hernandez’s Motion to Vacate Entry of Default is DENIED.
ANALYSIS:
Plaintiff Southern California
Gas Company (“Plaintiff”) filed the instant action for insurance subrogation
against Defendants Sandra R. Hernandez and Daniel Hernandez (“Defendants”) on October
25, 2021. Following the lack of any responsive pleading from Defendants, the
Court entered their default on the April 11, 2022.
Defendants filed the instant
Motion to Vacate Default on May 5, 2023. Plaintiff filed an opposition on May
10, 2023. The Court notes that the Motion is not accompanied by a proof of
service and Plaintiff contends it was not timely served at least 16 court days
prior to the hearing date. (Opp., Nourafchan Decl., ¶¶10-13.) However, it does
not appear that Plaintiff was prejudiced in its ability to file an opposition.
Therefore, the Court will consider all the papers.
Discussion
Defendants
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 not timely
brought within six months of entry of default. The request for default was
filed and entered against Defendants on April 11, 2022 and served on them by
mail on the same date. (Request for Default, filed 04/11/22, ¶6.) The deadline
to bring the instant motion for relief under Code of Civil Procedure section
473, subdivision (b), therefore, was October 10, 2022. The six-month deadline
is jurisdictional and not subject to tolling. (Manson, Iver & York v.
Black (2009) 176 Cal.App.4th 36, 42.) The Court has no discretion and must
deny the motion under this statute.
Nor does it appear that there
are any other grounds for relief available. Defendants admit that they were
served with the Summons and Complaint but believed they did not have to appear
until the April 24, 2023 trial date. (Motion, Hernandez Decl., ¶10.) They do
not explain why they did not take action upon receipt of the request for entry
of default, with which they were served more than a year ago.
Conclusion
Therefore,
Defendants Sandra R. Hernandez and Daniel Hernandez’s Motion to Vacate Entry of
Default is DENIED.
Moving party to give notice.