Judge: Mark E. Windham, Case: 22STLC01468, Date: 2023-01-31 Tentative Ruling

Case Number: 22STLC01468    Hearing Date: January 31, 2023    Dept: 26

Zepeda v. Fred Jacob Union, Inc., et al.

MOTION TO VACATE ENTRY OF DEFAULT AND DEFAULT JUDGMENT

(CCP § 473(b))

TENTATIVE RULING:

Defendant Fred Jacob Union, Inc.’s Motion to Vacate Entry of Default and Default Judgment is DENIED.

ANALYSIS:

Plaintiff Elias Zepeda (“Plaintiff”) filed the instant action for discrimination on the basis of disability against Defendants Fred Jacob Union, Inc., (“Defendant Fred Jacob Union”) Two Squared Associates (“Defendant Two Squared”), and Jacob Edward aka Edward Fred Jacob (“Defendant Jacob”) (collectively, “Defendants”) on March 4, 2022. Following Defendants’ failure to file a responsive pleading, the Court entered their default on May 25, 2022, and default judgment on June 6, 2022.

Defendants filed the instant Motion to Vacate Default and Default Judgment on December 5, 2022. Plaintiff filed an opposition on December 8, 2022.

Discussion

Defendants move to vacate the entry of default and default judgment 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, as this Motion was, the request must have been filed within a reasonable amount of time.

First, the Motion is brought by all three Defendants but only Defendant Fred Jacob Union has paid a first appearance fee. Defendants Two Squared and Jacob must also pay first appearance fees to be properly before the Court. Until then, the Motion will be treated as being brought only by Defendant Fred Jacob Union.

Second, the Motion is not timely. A motion brought for discretionary relief must be made within six months of entry of default. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980.) Here, default was entered on May 25, 2022, making November 23, 2022 the deadline for this Motion. The instant Motion was not filed until December 5, 2022. Nor is the Motion saved by having been filed less than six months after default judgment. As the Court of Appeals explained, if the court “could not set aside the default, it also could not set aside the default judgment under Code of Civil Procedure section 473, because that would be ‘an idle act.’” (Pulte Homes Corporation v. Williams Mechanical, Inc. (2016) 2 Cal.App.5th 267, 273.) 

Finally, the Motion is not supported by a declaration showing the default and default judgment were entered due to Defendant’s mistake, inadvertence, surprise or excusable neglect. Defendant Jacob declares that he repeatedly tried to contact Plaintiff’s counsel in March and April 2022 to discuss and settle the case but received no response after the initial offer and counter-offer. (Motion, Jacob Decl., ¶¶2-3.) This does not address why Defendants, upon receiving no further communication from Plaintiff, did not file a response to the action as directed by the Summons. Defendants have not shown grounds pursuant to the statute for failing to do so.

Conclusion

Defendant Fred Jacob Union, Inc.’s Motion to Vacate Entry of Default and Default Judgment is DENIED.

Plaintiff to give notice.