Judge: Mark E. Windham, Case: 22STLC06572, Date: 2023-03-16 Tentative Ruling
Case Number: 22STLC06572 Hearing Date: March 16, 2023 Dept: 26
MOTION TO VACATE ENTRY OF DEFAULT
TENTATIVE RULING:
Therefore, Defendant Kevin
Lee-Wellington’s Motion to Vacate Default is CONTINUED TO JUNE 15, 2023 AT
10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. BY MAY 25, 2023,
DEFENDANT KEVIN LEE-WELLINGTON IS TO FILE AND SERVE A SUPPLEMENTAL MEMORANDUM
OF POINTS AND AUTHORITIES WITH ANY NECESSARY SUPPORTING EVIDENCE, AS REQUIRED
BY CAL. RULES OF COURT, RULE 3.1113(B). ALSO, BY MAY 25, 2023, DEFENDANT KEVIN
LEE-WELLINGTON IS TO FILE PROOF OF SERVICE OF THE SUPPLEMENTAL PAPERS ON
PLAINTIFF ALEJANDRO DIAZ.
ORDER TO SHOW CAUSE REGARDING
STATUS OF DEFENDANT FLUFFY’S SNO-BALLS, LLC’S LEGAL REPRESENTATION IS SET FOR
JUNE 1, 2023 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.
ANALYSIS:
Plaintiff Alejandro Diaz (“Plaintiff”)
filed the instant action for civil rights violations against Defendants Fluffy’s
Sno-Balls LLC (“Defendant Fluffy’s”), Kevin Lee-Wellington (“Defendant
Lee-Wellington”) and Renaissance 1212 Long Beach LLC (“Defendant Renaissance
1212”) on October 5, 2022. Defendant Fluffy’s filed an Answer on December 15,
2022. The Court notes that the Answer was improperly filed on behalf of a
corporate entity without proper legal representation. (Answer, filed 12/15/22,
p. 1.) Default was entered against Defendants Lee-Wellington and Renaissance
1212 on January 27, 2023.
Defendant Lee-Wellington filed
the instant Motion to Vacate Default and Default Judgment on February 21, 2023.
No opposition has been filed to date.
Discussion
First, the Motion and notice of
hearing were not timely served on Plaintiff. The Motion and notice and hearing
were personally served on Plaintiff on February 28, 2023, only 12 court days
prior to the hearing date. (Proof of Service, filed 03/02/23.) The minimum
statutory notice for a motion is 16 court days, meaning service should have
been accomplished by February 22, 2023. (Code Civ. Proc., § 1005.) 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 Wellington-Lee must demonstrate proper service
of the motion papers and notice of hearing before the request to vacate default
can be granted.
Also, the Motion is not
supported by the necessary memorandum of points and authorities. “The
memorandum must contain a statement of facts, a concise statement of the law,
evidence and arguments relied on, and a discussion of the statutes, cases, and
textbooks cited in support of the position advanced.” (Cal. Rules of Court,
Rule 3.1113(b).) Indeed, Defendant’s failure to provide a memorandum as
required by the Rule is an “admission that the [request] is without merit and
cause for its denial.” (Cal. Rules of Court, Rule 3.1113(a), (b); In re
Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 976.)
Conclusion
Therefore, Defendant Kevin
Lee-Wellington’s Motion to Vacate Default is CONTINUED TO JUNE 15, 2023 AT
10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. BY MAY 25, 2023,
DEFENDANT KEVIN LEE-WELLINGTON IS TO FILE AND SERVE A SUPPLEMENTAL MEMORANDUM
OF POINTS AND AUTHORITIES WITH ANY NECESSARY SUPPORTING EVIDENCE, AS REQUIRED
BY CAL. RULES OF COURT, RULE 3.1113(B). ALSO BY MAY 25, 2023, DEFENDANT KEVIN
LEE-WELLINGTON IS TO FILE PROOF OF SERVICE OF THE SUPPLEMENTAL PAPERS ON
PLAINTIFF ALEJANDRO DIAZ.
ORDER TO SHOW CAUSE REGARDING
STATUS OF DEFENDANT FLUFFY’S SNO-BALLS, LLC’S LEGAL REPRESENTATION IS SET FOR
JUNE 1, 2023 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.
Moving party to give notice.