Judge: Mark E. Windham, Case: 23STCP02467, Date: 2023-11-27 Tentative Ruling

Case Number: 23STCP02467    Hearing Date: December 19, 2023    Dept: 26

Flaxington v. Framework Construction and Remodeling, Inc., et al.

MOTION TO VACATE ENTRY OF DEFAULT

(CCP § 473(b))

TENTATIVE RULING:

Respondents Framework Construction & Remodeling, Inc. and Regev Timor Cohen’s Motion to Vacate Entry of Default is GRANTED. RESPONDENTS FRAMEWORK CONSTRUCTION & REMODELING, INC. AND REGEV TIMOR COHEN ARE TO FILE THEIR PROPOSED RESPONSE TO THE PETITION TO CONFIRM ARBITRATION AWARD WITHIN 20 DAYS.

ANALYSIS:

Petitioner Kathy Flaxington (“Petitioner”) filed the instant Petition to Confirm Arbitration Award against Respondents Framework Construction and Remodeling, Inc. (“Respondent Framework”), Sean Wood (“Respondent Wood”), and Regev Cohen aka Regev Timor Cohen (“Respondent Cohen”) on July 14, 2023. Default was entered as to Defendants Framework and Cohen on October 9, 2023 and October 11, 2023, respectively. No proof of service has been filed as to Respondent Wood.

Respondents Framework and Cohen filed the instant Motion to Vacate Entry of Default on November 21, 2023. The Petition initially came for hearing on November 27, 2023 and was continued to January 29, 2024 to allow Petitioner file proof of service of the Petition and Notice of Hearing on Respondent Wood. (Minute Order, 11/27/23.)

Petitioner filed an opposition to the Motion to Vacate on December 4, 2023.

Discussion

Respondents move 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 was timely filed within six months (182 days) of entry of default and is supported by an affidavit of attorney fault. Respondent Framework and Cohen’s counsel declares that they inadvertently did not calendar the date to respond due to being on vacation and then moving law firms at the time the Petition was commenced. (Motion, Cate Decl., ¶3.) The Motion is also supported by a copy of moving Respondents’ proposed Response. (Id. at Exh. A.) Petitioner’s opposition to the Motion cites no legal grounds to deny the request for relief. (Opp., pp. 1:18-3:11.)

Therefore, the request to vacate the defaults entered against Respondent Framework and Cohen must be granted under Code of Civil Procedure section 473, subdivision (b).

Conclusion

Respondents Framework Construction & Remodeling, Inc. and Regev Timor Cohen’s Motion to Vacate Entry of Default is GRANTED. RESPONDENTS FRAMEWORK CONSTRUCTION & REMODELING, INC. AND REGEV TIMOR COHEN ARE TO FILE THEIR PROPOSED RESPONSE TO THE PETITION TO CONFIRM ARBITRATION AWARD WITHIN 20 DAYS.

Court clerk to give notice.