Judge: Mark E. Windham, Case: 22STLC06607, Date: 2023-02-23 Tentative Ruling

Case Number: 22STLC06607    Hearing Date: February 23, 2023    Dept: 26

Green v. CLPF Gateway Town Center, LP, et al.

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

TENTATIVE RULING:
Defendant CLPF Gateway Towne Center LP’s Motion to Vacate Entry of Default and Default Judgment is GRANTED. DEFENDANT CLPF GATEWAY TOWNE CENTER LP IS TO FILE AND SERVE THE PROPOSED ANSWER WITHIN 20 DAYS OF THIS ORDER.

ANALYSIS:

Plaintiff Rickey Green (“Plaintiff”) filed the instant action for civil rights violations against Defendants CLPF Gateway Towne Center LP (“Defendant Gateway”), Far West Restaurant Group, LLC (“Defendant Far West”) and Daniel A. Sonenshine aka Daniel Sonenshine (“Defendant Sonenshine”) on October 6, 2022. Following Defendants’ failure to file a responsive pleading, the Court entered their default on December 6, 2022 and default judgment on January 9, 2023.

Defendant Gateway filed the instant Motion to Vacate Default and Default Judgment on January 17, 2023. No opposition has been filed to date.

Discussion

Defendant Gateway 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 Gateway and was timely filed five weeks after entry of default. The Motion is supported by a declaration showing the default was entered due to confusion over whether Defendant Gateway’s agent for service of process was properly engaged with respect to Defendant Gateway’s service account. (Motion, Hu Decl., ¶¶9-10 and Exh. 1.) Although the agent was served on Defendant Gateway’s behalf regarding two other recent actions brought by Plaintiff, the agent could not explain whether it was served in this action. (Ibid.) As a result, Defendant Gateway did not learn of this action until discussing service of a different action with its agent. (Id. at ¶¶5-9.) This demonstrates that Defendant Gateway’s failure to respond the action was the result of surprise and warrants relief under Code of Civil Procedure section 473, subdivision (b). The Motion is also accompanied by a copy of Defendant Gateway’s proposed Answer, as required by the moving statute. (Motion, Brady Decl., Exh. 4.)

Conclusion

Defendant CLPF Gateway Towne Center LP’s Motion to Vacate Entry of Default and Default Judgment is GRANTED. DEFENDANT CLPF GATEWAY TOWNE CENTER LP IS TO FILE AND SERVE THE PROPOSED ANSWER WITHIN 20 DAYS OF THIS ORDER.

Moving party to give notice.