Judge: Mark E. Windham, Case: 23STLC03950, Date: 2024-04-09 Tentative Ruling

Case Number: 23STLC03950    Hearing Date: April 9, 2024    Dept: 26

Tri-Tech Restoration and Construction, Co. v. Fan, et al.

VACATE DEFAULT AND DEFAULT JUDGMENT

(CCP § 473(b))

TENTATIVE RULING:

Defendant Wenxuan Fan’s Motion to Vacate Default and Default Judgment is GRANTED. WITHIN 20 DAYS OF THIS ORDER, DEFENDANT IS TO FILE AND SERVE THE PROPOSED RESPONSE TO THE COMPLAINT.

ANALYSIS:

On June 22, 2023, Plaintiff Tri-Tech Restoration and Construction, Co. (“Plaintiff”) filed the instant action for breach of contract and common counts against Defendant Wenxuan Fan (“Defendant”). Following Defendant’s failure to file a responsive pleading, the Court entered their default on October 11, 2023. Default Judgment was entered on November 28, 2023.

Defendant filed the instant Motion to Vacate Default and Default Judgment on March 18, 2024. Plaintiff filed an opposition on March 27, 2024 and Defendant replied on April 2, 2024.

Discussion

The Court acknowledges that the Motion was not timely served at least 16 court days prior to the hearing date, plus two court days for service by electronic mail. (See Code Civ. Proc., §§ 1005 and 1010.6, subd. (a)(4)(B).) However, Plaintiff prepared a substantive opposition without indicating any prejudice from the shortened notice period. (Opp., Bates Decl.)

The Motion 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 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.)

The instant Motion was filed less than six months after entry of default and within a reasonable time. Defendant declares that upon learning of the entry of default in October 2023, they actively sought legal representation. (Motion, Fan Decl., ¶¶9-17.) Despite reaching out to numerous attorneys and legal organizations, it took months for Defendant to find an attorney willing to take their case. (Ibid.) Defendant hired defense counsel on March 8, 2023 and promptly filed this Motion. (Id. at ¶17.) The declaration also demonstrates that Defendant’s failure to respond was due to excusable neglect in that they misunderstood the trial date of December 2024 as the date by which a response to the lawsuit was required. (Id. at ¶6.) Finally, the Motion is accompanied by a copy of Defendant’s proposed answer, as required, as well as a proposed cross-complaint. (Id. at Exh. A.)

The Court does not find Defendant’s declaration lacks credibility, as Plaintiff urges in opposition. There is nothing to indicate that Defendant’s higher education would mean he understands legal proceedings or would not mistake the trial date as the deadline to respond. Nor does Plaintiff offer any legal authority for its contention that Defendant’s mistake constitutes “gross negligence.”  

Based on the foregoing, the Court finds Defendant is entitled to relief from the entry of default and default judgment pursuant to Code of Civil Procedure section 473, subdivision (b).

Conclusion

Defendant Wenxuan Fan’s Motion to Vacate Default and Default Judgment is GRANTED. WITHIN 20 DAYS OF THIS ORDER, DEFENDANT IS TO FILE AND SERVE THE PROPOSED RESPONSE TO THE COMPLAINT.

Court clerk to give notice.