Judge: Mark E. Windham, Case: 23STLC02523, Date: 2024-04-22 Tentative Ruling

Case Number: 23STLC02523    Hearing Date: April 22, 2024    Dept: 26

 Hurtado v. Counts, et al.

VACATE DEFAULT AND DEFAULT JUDGMENT

(CCP §§ 473(b))

TENTATIVE RULING:

Defendant Catarina Counts’ Motion to Vacate Entry of Default is DENIED.

ANALYSIS:

On April 18, 2023, Plaintiff Valerie Hurtado (“Plaintiff”) filed the instant action for motor vehicle negligence against Defendants Catarina Counts (“Defendant Counts”) and Los Angeles County Metropolitan Transportation Authority (“Defendant Metro”) (erroneously sued as “Los Angeles County Metropolitan Transit Authority”). Following Defendant Count’s failure to file a responsive pleading, the Court entered their default on September 25, 2023. Defendants then filed answers to the Complaint on November 17, 2023.

Defendant Counts filed the instant Motion to Vacate Default on March 22, 2024. No opposition has been filed to date.

Discussion

Initially, the Court strikes Defendant Counts’ answer filed on November 17, 2023 pursuant to its inherent authority under Code of Civil Procedure section 436, subdivision (b). The answer was filed while Defendant Counts was in default and not permitted to file a responsive pleading. (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1301 [holding that entry of default cuts off the defendant's right to take further affirmative steps such as filing a pleading or motion].)

The Motion to Vacate is brought pursuant to Code of Civil Procedure section 473, subdivision (b), which states that an application for relief must be made within a reasonable time, 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 the 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.)

Defendant Counts does not demonstrate that the instant Motion was timely filed within a reasonable amount of time. Where the statute requires that “ ‘ “the application must be made within a ‘reasonable time’ … what is a reasonable time in any case depends upon the circumstances of that particular case.” While in “the determination of that question, a large discretion is necessarily confided to [the trial] court” ... there must be some showing—some evidence—as the basis for the exercise of such discretion.’ ” (Caldwell v. Methodist Hospital (1994) 24 Cal.App.4th 1521, 1524 [citing Carrasco v. Craft (1985) 164 Cal.App.3d 796, 805].)

Defendant Counts does not address the reasonable time requirement and only declares that they learned of the entry of default on March 21, 2024. The request for entry of default, however, was mailed to Defendant Counts on September 25, 2023 at the same address where the Summons and Complaint were served. (Request for Entry of Default, filed 09/25/23, ¶6b.) Furthermore, Defendant Counts obtained counsel who filed an answer on November 17, 2023. The instant Motion to Vacate Default, however, was not filed until almost six months after the entry of default.

Defendant Counts also contends that they did not respond because they assumed Defendant Metro was already aware of the action and would respond on their behalf. (Motion, Counts Decl., ¶2.) The Motion, however, does not analyze whether such an assumption, without taking any other action, was an honest and reasonable mistake or excusable neglect. The Court of Appeals has explained the statutory language as follows: “There is, to be sure, a policy in favor of trying cases on their merits. And it is an important one. But there are other policies reflected in the requirement of section 473(b) that relief be granted only where a party has made an honest and reasonable mistake, policies implicating judicial efficiency, a fair legal process and timely access to the courts.” (McClain v. Kissler (2019) 39 Cal.App.5th 399, 405.)

Therefore, Defendant Counts has not demonstrated they are entitled to relief from the entry of default pursuant to Code of Civil Procedure section 473, subdivision (b).

Conclusion

Defendant Catarina Counts’ Motion to Vacate Entry of Default is DENIED.

Court clerk to give notice.