Judge Mark E. Windham, Case 22STLC03395 2022-12-21 Tentative Ruling

Judge: Mark E. Windham, Case: 22STLC03395, Date: 2022-12-21 Tentative Ruling

Case Number: 22STLC03395 Hearing Date: December 21, 2022 Dept: 26

Sherfield v. Alvarado, et al.

MOTION TO VACATE ENTRY OF DEFAULT AND DEFAULT JUDGMENT

(CCP § 473(b))TENTATIVE RULING:

Defendants Paulo Alvarado and Paulo Alvarado’s Restaurant, LLC’s Motion to Vacate Entry of Default and Default Judgment is GRANTED. THE DEFAULT ENTERED ON JULY 20, 2022, DISMISSAL OF DOE DEFENDANTS ENTERED ON JULY 20, 2022, AND DEFAULT JUDGMENT ENTERED ON JULY 27, 2022 ARE HEREBY VACATED. ALSO, THE ANSWER FILED ON JULY 22, 2022 IS HEREBY STRICKEN.

DEFENDANTS ARE TO FILE AND SERVE A COPY OF THEIR ANSWER WITHIN 20 DAYS’ OF THIS ORDER. FINALLY, DEFENSE COUNSEL IS TO PAY $1,000.00 TO PLAINTIFF’S COUNSEL WITHIN 20 DAYS OF THIS ORDER.

ANALYSIS:

Plaintiff Ricardo Sherfield (“Plaintiff”) filed the instant action for discrimination on the basis of disability against Defendants Paulo Alvarado and Paulo Alvarado’s Restaurant, LLC (“Defendants”) on August May 18, 2022. Following Defendants’ failure to file a responsive pleading, the Court entered their default on July 20, 2022, and default judgment on July 27, 2022. An Answer filed by Defendants on July 22, 2022 was inadvertently accepted by the Court. The Court now strikes the Answer filed on July 22, 2022 pursuant to Code of Civil Procedure section 436, subdivision (b).

Defendants filed the instant Motion to Vacate Default and Default Judgment on October 6, 2022. Plaintiff filed an opposition on October 13, 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, the request must have been filed within a reasonable amount of time.

The Motion is based on the fault of defense counsel and was timely filed within six months of the entry of default. Defense counsel explains that they failed to timely file an Answer to the Complaint. (Motion, Sands Decl., ¶¶5-6.) The Motion is also accompanied by a copy of Defendants’ proposed Answer. (Id. at Exh. A.) This evidence demonstrates that Defendants have timely sought to vacate the entry of default and default judgment according to the statutory requirements of an attorney affidavit of fault and copy of their proposed responsive pleading. Therefore, pursuant to Code of Civil Procedure section 473, subdivision (b), the Court must vacate the default and default judgment entered against Defendants.

However, Plaintiff is entitled to an award of attorney’s fees incurred as a result of defense counsel’s fault. (Code Civ. Proc., § 473, subd. (b).) Plaintiff’s counsel is awarded $1,000.00 based on two hours of attorney time billed at $500.00 per hour. (Opp., Mehrban Decl., ¶5.)

Conclusion

DEFENDANTS ARE TO FILE AND SERVE A COPY OF THEIR ANSWER WITHIN 20 DAYS’ OF THIS ORDER. FINALLY, DEFENSE COUNSEL IS TO PAY $1,000.00 TO PLAINTIFF’S COUNSEL WITHIN 20 DAYS OF THIS ORDER.

Moving party to give notice.