Judge Mark E. Windham, Case 22STLC01941 2022-08-31 Tentative Ruling

Judge: Mark E. Windham, Case: 22STLC01941, Date: 2022-08-31 Tentative Ruling

Case Number: 22STLC01941 Hearing Date: August 31, 2022 Dept: 26

PROCEEDINGS: MOTION TO VACATE ENTRY OF DEFAULT

MOVING PARTY: Defendant Avus Autosport, Inc.

MOTION TO VACATE ENTRY OF DEFAULT AND DEFAULT JUDGMENT

(CCP § 473(b))

TENTATIVE RULING:

Defendant Avus Autosport, Inc.’s Motion to Vacate Entry of Default and Default Judgment is GRANTED. DEFENDANT TO FILE AND SERVE ANSWER TO THE COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

SERVICE:

[X] Proof of Service Timely Filed (CRC 3.1300) OK

[X] Correct Address (CCP 1013, 1013a) OK

[X] 16/21 Day Lapse (CCP 12c and 1005 (b)) OK

SUMMARY OF COMPLAINT: Action for breach of contract.

RELIEF REQUESTED: Vacate entry of default and default judgment due to excusable mistake, inadvertence, neglect, or surprise.

OPPOSITION: Defendant was served in compliance with California law and admits to being aware of this action.

REPLY: Reiterates moving papers.

ANALYSIS:

Plaintiff Lux Life (“Plaintiff”) filed the instant action for breach of contract against Defendant Avus Autosport (“Defendant”) on March 24, 2022. The proof of service of substitute service filed on April 13, 2022 indicates that the Summons and Complaint were mailed to Defendant on April 12, 2022, making the effective date of service April 22, 2022. (See Code Civ. Proc., § 415.20.) Defendant’s responsive pleading, therefore, was due by May 22, 2022. (See Code Civ. Proc., § 412.20, subd. (a)(3).)

Following Defendant’s failure to file a responsive pleading, the Court entered default on May 31, 2022 and default judgment on June 16, 2022. Defendant filed the instant Motion to Vacate Default on July 25, 2022. Plaintiff filed an opposition on August 3, 2022 and Defendant replied on August 10, 2022.

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 less than two months after entry of default, which is within the statutory deadline and within a reasonable amount of time. Also, the Motion is accompanied by a copy of Defendant’s proposed Answer. (Motion, Kahn Decl., Exh. 8.) Finally, the Motion is accompanied by an affidavit demonstrating that the default was entered due to Defendant’s mistake, inadvertence, surprise or excusable neglect. Defendant’s president, Andrew Kahn, declares that the person with whom the Summons and Complaint were left was not its agent for service of process, but rather a service manager. (Id. at ¶¶6-7.) The service manager did not inform Kahn of the 30-day response period and during the same time, Kahn was very distracted and distrought due to personal tragedies involving close friends, followed by a bout of COVID-19. (Id. at ¶¶9-13.) As a result, Kahn did not realize that a response to the Complaint was due until after receipt of the default judgment. (Id. at ¶¶13-14.)

Based on the supporting declaration, Defendant has demonstrated that the entry of default can be vacated due to mistake, inadvertence, surprise or excusable neglect under Code of Civil Procedure section 473, subdivision (b). Plaintiff’s opposition offers no legal authority regarding why the Court should not exercise its discretion under the moving statute to vacate the entry of default and default judgment. (Opp., p. 2:18-24.) Instead, the opposition arguest that service complied with the statutory requirements. (Ibid.) Defendant, however, does not dispupte the propriety of service and instead, appeals to the Court’s discretion for its failure to timely respond to the Complaint. “The provisions of section 473 are to be liberally construed, and policy considerations favor the determination of actions on their merits. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 256, 121 Cal.Rptr.2d 187, 47 P.3d 1056.)” (Alliance for Protection of Auburn Community Environment v. County of Placer (2013) 215 Cal.App.4th 25, 30.)

Conclusion

Therefore, Defendant Avus Autosport, Inc.’s Motion to Vacate Entry of Default and Default Judgment is GRANTED. DEFENDANT IS TO FILE AND SERVE ANSWER TO THE COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

ORDER TO SHOW CAUSE RE: FILING OF DEFENDANT'S ANSWER IS SCHEDULED FOR NOVEMBER 15, 2022 AT 9:30 AM IN DEPARTMENT 26 AT THE SPRING STREET COURTHOUSE.

Moving party to give notice.