Judge: Mark E. Windham, Case: 21STLC07920, Date: 2022-08-03 Tentative Ruling

Case Number: 21STLC07920    Hearing Date: August 3, 2022    Dept: 26

MOTION TO VACATE ENTRY OF DEFAULT

(CCP § 473(b))

TENTATIVE RULING:

Defendant Felipe Martinez’s Motion to Vacate Entry of Default is DENIED.

ORDER TO SHOW CAUSE RE DEFAULT JUDGMENT / DISMISSAL IS SET FOR OCTOBER 24, 2022 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

Plaintiff State Farm Mutual Automobile Insurance Company (“Plaintiff”) filed the instant action for automobile subrogation against Defendant Felipe Martinez (“Defendant”) on November 4, 2021. The proof of service of substitute service filed on November 22, 2021 indicates that the Summons and Complaint were mailed to Defendant on November 16, 2021, making the effective date of service November 26, 2021. (See Code Civ. Proc., § 415.20.) Defendant’s responsive pleading, therefore, was due by December 26, 2021. (See Code Civ. Proc., § 412.20, subd. (a)(3).)

Following Defendant’s failure to file a responsive pleading, the Court entered default on January 25, 2022. Defendant filed the instant Motion to Vacate Default on May 31, 2022. Plaintiff filed an opposition on June 13, 2022.

The Motion came for hearing on June 27, 2022, at which time both parties appeared. (Minute Order, 06/27/22.) The Court continued the hearing to August 3, 2022. (Ibid.) No additional papers have been filed to date.

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 was timely filed within six months of the entry of default and within a reasonable amount of time. However, the Motion is not accompanied by an affidavit demosntrating that the default was entered due to either Defendant or defense counsel’s mistake, inadvertence, surprise or neglect. The supporting declaration of defense counsel states that following service of the Summons and Complaint, a responsive pleading was due on or around November 26, 2021. (Id. at ¶4.) No explanation is provided in the declaration as to why no responsive pleading was filed by the deadline. Additionally, although the a copy of Defendant’s proposed Answer to the Complaint is attached to the Motion, defense counsel’s emails to Plaintiff’s counsel’s contend that liability is not contested. (Motion, Barreno Decl., Exhs. 1-3.)

Based on the foregoing, Defendant has not demonstrated that the entry of default can be vacated due to mistake, inadvertence, surprise or neglect under Code of Civil Procedure section 473, subdivision (b).

Conclusion

Defendant Felipe Martinez’s Motion to Vacate Entry of Default is DENIED.

ORDER TO SHOW CAUSE RE DEFAULT JUDGMENT / DISMISSAL IS SET FOR OCTOBER 24, 2022 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Plaintiff to give notice.