Judge: Mark E. Windham, Case: 23STLC03517, Date: 2023-09-27 Tentative Ruling

Case Number: 23STLC03517    Hearing Date: September 27, 2023    Dept: 26

Marquez v. Gala, et al.

MOTION TO VACATE ENTRY OF DEFAULT

(CCP § 473(b))

TENTATIVE RULING:

Defendant Bipin Gala’s Motion to Vacate Entry of Default is CONTINUED TO NOVEMBER 29, 2023. BY NOVEMBER 8, 2023 DEFENDANT BIPIN GALA IS TO FILE AND SERVE A SUPPLEMENTAL DECLARATION OF FAULT. FAILURE TO DO SO MAY RESULT IN THE MOTION BEING DENIED.

ANALYSIS:

Plaintiff Luis Marquez (“Plaintiff”) filed the instant action for civil rights violations against Defendants Bipin Gala (“Defendant Gala”) and Yvonne Magana aka Ibon Magana (“Defendant Magana”) on June 1, 2023. Defendant Magana filed an answer on August 7, 2023. Following Defendant Gala’s failure to file a responsive pleading, the Court entered their default on August 11, 2023.

Defendant Gala filed the instant Motion to Vacate Default on August 29, 2023. On August 31, 2023, Plaintiff filed only evidentiary objections to the evidence in support of the Motion, with no supporting memorandum.

Discussion

The 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 Motion is timely brought within six months of entry of default and a copy of Defendant Gala’s answer. (Motion, Exh. A.) However, Plaintiff objects and the Court agrees that the supporting declaration of fault is inadequate. The declaration is by defense counsel regarding Defendant Gala's belief that the answer filed on behalf of Defendant Magana would also be on Defendant Gala’s behalf. (Motion, Kritikos Decl., ¶8.) Defense counsel, however, cannot attest to Defendant Gala’s belief and the objection to the statements therein as hearsay and lacking personal knowledge are sustained. Defendant Gala must submit their own declaration to demonstrate fault under Code of Civil Procedure section 473, subdivision (b).

Conclusion

Therefore, Defendant Bipin Gala’s Motion to Vacate Entry of Default is CONTINUED TO NOVEMBER 29, 2023. BY NOVEMBER 8, 2023 DEFENDANT BIPIN GALA IS TO FILE AND SERVE A SUPPLEMENTAL DECLARATION OF FAULT. FAILURE TO DO SO MAY RESULT IN THE MOTION BEING DENIED.

Court clerk to give notice.