Judge: Mark E. Windham, Case: 22STLC06572, Date: 2023-07-24 Tentative Ruling

Case Number: 22STLC06572    Hearing Date: July 24, 2023    Dept: 26

Diaz v. Fluffy’s Sno-Balls, LLC, et al.

MOTION TO VACATE ENTRY OF DEFAULT

(CCP § 473(b))

TENTATIVE RULING:

Defendant Kevin Lee-Wellington’s Motion to Vacate Entry of Default is GRANTED. THE DEFAULT ENTERED ON JANUARY 27, 2023 IS HEREBY VACATED.

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/or Default Judgment on February 21, 2023. The Motion initially came for hearing on March 16, 2023 and was continued to June 15, 2023. (Minute Order, 03/16/23.) Defendant Lee-Wellington was ordered to file and serve a supplemental memorandum of points and authorities with necessary supporting evidence, as required by Cal. Rules of Court rule 3.1113(b). (Ibid.) The Order to Show Cause regarding Defendant Fluffy’s legal representation was continued from to July 24, 2023, concurrent with this hearing.

Defendant Lee-Wellington filed a second Motion to Vacate Default and/or Default Judgment on March 16, 2023. The hearing on the second Motion to Vacate was continued from June 15, 2023 to July 24, 2023. (Minute Order, 06/15/23.) Defendant Lee-Wellington filed supplemental declarations on June 14 and 16, 2023. To date, no opposition has been filed.

Discussion

Defendant Lee-Wellington’s second Motion to Vacate was served on Plaintiff with notice of the hearing date, as ordered by the Court. The second Motion is brought 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 second Motion was timely brought within six months of entry of default and is supported by declaration of fault. Defendant Lee-Wellington declares that they inadvertently failed to include themselves on the answer filed on December 15, 2022. (Motion, Lee-Wellington Decl., ¶¶4-5.) Instead, the answer was filed only as to Defendant Fluffy’s Sno-Balls. (Ibid.) Based on the motion being timely and supported by an affidavit of fault and proposed answer, the Court exercises its discretion to vacate the default entered against Defendant Lee-Wellington on January 27, 2023.

Conclusion

Therefore, Defendant Kevin Lee-Wellington’s Motion to Vacate Entry of Default is GRANTED. THE DEFAULT ENTERED ON JANUARY 27, 2023 IS HEREBY VACATED.

Court clerk to give notice.