Judge: Mark E. Windham, Case: 23STLC00538, Date: 2024-05-23 Tentative Ruling

Case Number: 23STLC00538    Hearing Date: May 23, 2024    Dept: 26

Kari Whitman Interiors, LLC v. The Wood Soul By Lilicales, et al.

MOTION TO VACATE ENTRY OF DEFAULT

(CCP § 473(b))

TENTATIVE RULING:

Defendant The Wood Soul By Lilicales’ Motion to Vacate Entry of Default is GRANTED. THE DEFAULT ENTERED ON MARCH 5, 2024 IS VACATED. DEFENDANT IS TO FILE AND SERVE THE ANSWER TO THE COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

ANALYSIS:

On January 24, 2023, Plaintiff Kari Whitman Interiors, LLC (“Plaintiff”) filed the instant action against Defendant The Wood Soul By Lilicales (“Defendant”). Following Defendant’s failure to file a responsive pleading, Plaintiff obtained its default on March 5, 2024.  

On April 4, 2024, Defendant filed the instant Motion to Vacate Default. Plaintiff filed an opposition on May 10, 2024 and Defendant replied on May 16, 2024.

Discussion

Defendant 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).) This can be corrected if Defendant submits a proposed responsive pleading by the hearing date. (Code Civ. Proc., § 473, subd. (b); Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 403.)

A request for relief under the discretionary prong, based on party fault, must not only be made within six months of entry of default but also within a reasonable time. (Code Civ. Proc., § 473, subd. (b).) The Motion was timely filed less than two months after entry of default and is supported by a declaration of fault from Defendant’s owner, Liliana Milton, who states she contacted an attorney, Richard H. Lee (“Attorney Lee”), to undertake legal representation for Defendant in May 2023. (Motion, Milton Decl., ¶3.) When served with a request for default in January 2024, Milton reached out to Attorney Lee and was informed he was no longer representing Defendant. (Id. at ¶4.) This declaration is sufficient to demonstrate excusable neglect by Defendant. Although Defendant was served with a request for entry of default in July 2023, Milton’s failure to reach out to Attorney Lee at that time did not amount to inexcusable neglect, as Plaintiff argues. It was reasonable for Milton to assume Attorney Lee was in communication with Plaintiff’s counsel regarding the matter, whom she had hired just two months prior. The Motion is also accompanied by a copy of Defendant’s proposed answer. (Motion, Lee Decl., Exh. C.) As all the requirements for relief from the default under Code of Civil Procedure section 473, subdivision (b) have been demonstrated, the Motion on these grounds is granted.

Furthermore, Plaintiff’s counsel’s failure to inform Attorney Lee of the requests for entry of default served on Defendant in July and December 2023 is a separate basis to vacate the default. The Court of Appeals explains:

[I]t is now well-acknowledged that an attorney has an ethical obligation to warn opposing counsel that the attorney is about to take an adversary's default. (Id. at pp. 701-702, 84 Cal.Rptr.3d 351.)

In that regard we heartily endorse the related admonition found in The Rutter Group practice guide, and we note the authors' emphasis on reasonable time: “Practice Pointer: If you're representing plaintiff, and have had any contact with a lawyer representing defendant, don't even attempt to get a default entered without first giving such lawyer written notice of your intent to request entry of default, and a reasonable time within which defendant's pleading must be filed to prevent your doing so.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2008) § 5:73, p. 5-19 (rev. #1, 2008) as quoted in Fasuyi, supra, 167 Cal.App.4th at p. 702, 84 Cal.Rptr.3d 351.)

(Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 135.) Plaintiff’s counsel should have informed Attorney Lee of its attempts to obtain Defendant’s default before submitting the requests to the Court.

Conclusion

Based on the foregoing, Defendant The Wood Soul By Lilicales’ Motion to Vacate Entry of Default is GRANTED. THE DEFAULT ENTERED ON MARCH 5, 2024 IS VACATED. DEFENDANT IS TO FILE AND SERVE THE ANSWER TO THE COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

Court clerk to give notice.