Judge: Mark E. Windham, Case: 22STLC05486, Date: 2023-02-07 Tentative Ruling

Case Number: 22STLC05486    Hearing Date: February 7, 2023    Dept: 26

Alvarez v. St. Paul Properties, Inc., et al.

MOTION TO VACATE ENTRY OF DEFAULT

(CCP § 473(b))

TENTATIVE RULING:

Defendant KCM Hamburger LLC’s Motion to Vacate Entry of Default is GRANTED. DEFENDANT KCM HAMBURGER LLC IS TO FILE AND SERVE THE PROPOSED ANSWER WITHIN 20 DAYS OF THIS ORDER.

ANALYSIS:

Plaintiff Juan Alvarez (“Plaintiff”) filed the instant action for civil rights violations against Defendants St. Paul Fire and Marine Insurance Company (erroneously sued as “St. Paul Properties, Inc.”) (“Defendant St. Paul”), KCM Hamburger LLC (“Defendant KCM”) and Michael Jenkins (“Defendant Jenkins”) on August 18, 2022. Defendants St. Paul and Jenkins timely filed Answers to the Complaint. Following Defendant KCM’s failure to file a responsive pleading, the Court entered its default on December 15, 2022.

Defendant KCM filed the instant Motion to Vacate Default on January 6, 2023. No opposition has been filed to date.

Discussion

Defendant KCM 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 based on the fault of Defendant KCM’s attorney, Defendant Jenkins. (Motion, p. 2:7-11.) The Motion was timely filed three weeks after entry of default and is supported by a declaration showing the default was entered due to Defendant Jenkin’s mistake, inadvertence, surprise or excusable neglect. Specifically, upon service of the Summons and Complaint to Defendant Jenkins, he did not realize there was also a Summons with respect to Defendant KCM. (Motion, Jenkins Decl., ¶¶1-3.) As a result, Defendant Jenkins’ Answer was filed only as to himself. (Ibid.) The Motion is also accompanied by a copy of Defendant KCM’s proposed Answer, as required by the moving statute. (Id. at Exh. A.)

Conclusion

Therefore, Defendant KCM Hamburger LLC’s Motion to Vacate Entry of Default is GRANTED. DEFENDANT KCM HAMBURGER LLC IS TO FILE AND SERVE THE PROPOSED ANSWER WITHIN 20 DAYS OF THIS ORDER.

Moving party to give notice.