Judge: Mark E. Windham, Case: 22STLC03494, Date: 2023-05-22 Tentative Ruling

Case Number: 22STLC03494    Hearing Date: May 22, 2023    Dept: 26

Western Surety Co. v. Goosheh, et al.

MOTION TO VACATE ENTRY OF DEFAULT
(CCP § 473(b))

TENTATIVE RULING:

Defendant Mehdi Norouzi’s Motion to Vacate Entry of Default is GRANTED.

ANALYSIS:

On May 24, 2022, Plaintiff Western Surety Company (“Plaintiff”) initiated this interpleader action against Defendants Mehrdad Martin Goosheh dba Mehrdad M. Goosheh (“Defendant Goosheh”); Mehdi Norouizi (“Defendant Norouizi”), David Aframian (“Defendant David”) and Fairy Aframian (“Defendant Fairy”). Following their failure to file responsive pleadings, default was entered against all Defendants on September 29, 2022.

Defendant Norouzi filed the instant Motion to Vacate Default on March 28, 2023. Plaintiff filed an opposition on May 9, 2023 and Defendant Norouzi replied on May 12, 2023.

Discussion

Defendant Norouzui 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 is brought on the discretionary grounds based on Defendant Norouzi’s declaration of fault. They declare that they attempted to answer in July 2022 and did not realize there was any problem until the hearing on March 28, 2023. (Reply, Norouzi Decl., ¶¶3-4.) Plaintiff argues that the request for entry of default was mailed to Defendant Norouzi September 29, 2022 but they took no action to ensure default was not entered. However, Defendant Norouzi declares that they also mailed documents to the Court in October 2022, presumably in response to the request for default. Upon appearing at the hearing on March 28, 2022, Defendant Norouzi learned that they were in default and promptly filed the instant motion.

The Court finds Defendant Norouzi has made a showing of excusable mistake and surprise with respect to the entry of default and subsequent proceedings. They twice sought to file an answer, although both attempts were unsuccessful. They promptly filed the instant motion upon learning of the default. The motion is also accompanied by a copy of Defendant Norouzi’s proposed answer. (Reply, Norouzi Decl., Exh. 2.) Nor does the Court find that there would be any prejudice to Defendants David and Fairy, who have not opposed this motion. There has been no determination yet regarding the surplus funds, which will be made at the trial date set for November 21, 2023, six months from now.

Conclusion

Therefore, Defendant Mehdi Norouzi’s Motion to Vacate Entry of Default is GRANTED.

Moving party to give notice.