Judge: Mark E. Windham, Case: 23STLC05822, Date: 2024-04-30 Tentative Ruling

Case Number: 23STLC05822    Hearing Date: April 30, 2024    Dept: 26

Jones, et al. v. West, et al.

MOTION TO VACATE ENTRY OF DEFAULT

(CCP § 473(b))

TENTATIVE RULING:

Defendant Ezzeddine Kebair’s Motion to Vacate Entry of Default is GRANTED. DEFENDANT KEBAIR IS TO FILE AND SERVE THEIR PROPOSED ANSWER TO THE COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

ANALYSIS:

On September 11, 2023, Plaintiffs Charles Jones and Burcin Cartilli (“Plaintiffs”) filed the instant action against Defendant Daniel West (“Defendant West”). Plaintiffs amended the Complaint on December 14, 2023 to add Defendant Ezzeddine Kebair (“Defendant Kebair”). When Defendant Kebair failed to file a responsive pleading, Plaintiff obtained their default on February 26, 2024.

On March 27, 2024, Defendant Kebair filed the instant Motion to Vacate Default. No opposition has been filed to date.

Discussion

Defendant Kebair 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 within a reasonable time. (Code Civ. Proc., § 473, subd. (b).) The Motion was timely filed one month after entry of default and is supported by a declaration of fault from Defendant Kebair’s insurance company, acting as his representative. Specifically, Defendant Kebair’s insurer obtained two extensions of the time respond to the action, first to March 1, 2024 and then to March 29, 2024. (Motion, Farley Decl., ¶¶4-7 and Exhs. 2-5.) Despite these extensions of time to respond communicated to Defendant Kebair’s insurance company, Plaintiffs requested entry of default on February 26, 2024. This demonstrates that Defendant Kebair’s default was taken by surprise.

The Motion also attaches a copy of Defendant Kebair’s proposed responsive pleading. (Motion, Beach Decl., Exh.2.) 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.

Conclusion

Defendant Ezzeddine Kebair’s Motion to Vacate Entry of Default is GRANTED. DEFENDANT KEBAIR IS TO FILE AND SERVE THEIR PROPOSED ANSWER TO THE COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

Court clerk to give notice.