Judge: Mark E. Windham, Case: 22STLC01820, Date: 2023-02-02 Tentative Ruling

Case Number: 22STLC01820    Hearing Date: February 2, 2023    Dept: 26

State Farm v. Segura, et al.

MOTION TO VACATE ENTRY OF DEFAULT AND DEFAULT JUDGMENT

(CCP § 473(b))

TENTATIVE RULING:

Defendant Carlos Segura’s Motion to Vacate Entry of Default is CONTINUED TO MAY 4, 2023 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. BY APRIL 13, 2023, DEFENDANT IS TO FILE PROOF OF SERVICE OF THE MOVING PAPERS AND NOTICE OF THE CONTINUED HEARING DATE. FAILURE TO DO SO MAY RESULT IN THE MOTION BEING DENIED.

ANALYSIS:

Plaintiff State Farm Mutual Automobile Insurance Company (“Plaintiff”) filed the instant action for insurance subrogation against Defendant Carlos Segura (“Defendant”) on March 21, 2022. Following Defendant’s failure to file a responsive pleading, the Court entered default on May 16, 2022. Defendant filed the instant Motion to Vacate Default on June 22, 2022. No opposition has been filed to date.

Discussion

As an initial matter, the Motion is not accompanied by a proof of service demonstrating that Plaintiff was served with the moving papers and notice of hearing. Failure to give notice of a motion is not only a violation of the statutory requirements but of due process. (Code Civ. Proc., § 1005; Jones v. Otero (1984) 156 Cal.App.3d 754, 757.) Defendant must demonstrate notice of the Motion and hearing date before it can be granted.

As to the merits, 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, as this Motion was, the request must have been filed within a reasonable amount of time.

The Motion was timely filed five weeks after entry of default and is supported by a declaration showing the default was entered due to Defendant’s mistake, inadvertence, surprise or excusable neglect. Specifically, from February 2022 to the current date Defendant has been suffering from a medical condition that left him in pain, unable to get out of bed, or to respond to this action. (Motion, Segura Decl., ¶¶1-2.) The Motion is also accompanied by a copy of Defendant’s proposed Answer, as required. (Id. at Exh. A.) Upon a showing of proper notice, Defendant’s request for relief from the entry of default may be granted.

Conclusion

Therefore, Defendant Carlos Segura’s Motion to Vacate Entry of Default is CONTINUED TO MAY 4, 2023 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. BY APRIL 13, 2023, DEFENDANT IS TO FILE PROOF OF SERVICE OF THE MOVING PAPERS AND NOTICE OF THE CONTINUED HEARING DATE. FAILURE TO DO SO MAY RESULT IN THE MOTION BEING DENIED.

Moving party to give notice.