Judge: Mark E. Windham, Case: 23STLC05922, Date: 2024-03-18 Tentative Ruling

Case Number: 23STLC05922    Hearing Date: March 18, 2024    Dept: 26

 Interinsurance Exchange v. Tate, et al.

VACATE DEFAULT AND DEFAULT JUDGMENT

(CCP §§ 473(b), 473.5)

TENTATIVE RULING:

The Motion of Defendant Damon Tate, individually, and dba Friendly Rides, LLC to Vacate Default is GRANTED. DEFENDANT IS TO FILE AND SERVE THE PROPOSED ANSWER WITHIN 30 DAYS OF THIS ORDER.

ANALYSIS:

On September 14, 2023, Plaintiff Interinsurance Exchange of the Automobile Club (“Plaintiff”) filed the instant action for automobile subrogation against Defendant Damon Tate, individually, and dba as Friendly Rides, LLC, a suspended corporation (“Defendant”). Proof of substitute service was filed on November 8, 2023; following Defendant’s failure to file a responsive pleading, the Court entered their default on January 9, 2024.

Defendant, in propria persona, filed the instant Motion to Vacate Default on February 14, 2024. No opposition has been filed to date.

Discussion

The Motion is brought pursuant to many different statutes, including Code of Civil Procedure section 473, subdivision (b), Code of Civil Procedure section 473, subdivision (d), Code of Civil Procedure section 473.5, Civil Code section 1788.61(c), and Code of Civil Procedure section 418.10. The memorandum of points and authorities, however, does not analyze these statutes with respect to the facts of service and Defendant’s failure to file a timely responsive pleading. Only the supporting declaration mentions relevant parts of the statutory language: “actual knowledge” and “inadvertence, surprise, mistake, or excusable neglect.” This language pertains to Code of Civil Procedure sections 473 and 473.5. Accordingly, the Court will consider whether relief is warranted under either of those statutes.

Code of Civil Procedure section 473.5, subdivision (a) states in relevant part:

When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action.  The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.

(Code Civ. Proc., § 473.5, subd. (a).) Additionally, the motion “shall be accompanied by an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.” (Code Civ. Proc., § 473.5, subd. (b).) The supporting declaration explains that Defendant was in Las Vegas, at their other residence, at the time the papers were sub-served. (Motion, Tate Decl., ¶7.) Defendant only learned of this action upon receiving notice of the entry of default on December 31, 2023. (Id. at 5.) This declaration demonstrates that Defendant lacked actual notice of the action, and that this was not due to inexcusable neglect or avoidance of service. A copy of Defendant’s proposed answer is also attached to the declaration. (Id. at Exh. A.)

Relief is similarly available under Code of Civil Procedure section 473, subdivision (b) on grounds of excusable neglect. Code of Civil Procedure section 473, subdivision (b) 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 timely filed within six months of entry of default and is supported by an affidavit of fault as shown above.

However, the Court notes that Defendant is moving for relief in propria persona on behalf of themselves as an individual and as a suspended corporation. An individual cannot represent a corporation in a court of law. (Clean Air Transport Systems v. San Mateo County Transit Dist. (1988) 198 Cal.App.3d 576, 578 (citing Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 729-730).) This rule applies to all entities regarded as separate from their owners, including partnerships and unincorporated associations. (See Clean Air Transport Systems, supra, 19 Cal.App.3d at 578.) Defendant must file the responsive pleading through a licensed attorney for it to be effective as to Friendly Rides, LLC.

Conclusion

Based on the foregoing, the Motion of Defendant Damon Tate, individually, and dba as Friendly Rides, LLC to Vacate Default is GRANTED. DEFENDANT IS TO FILE AND SERVE THE PROPOSED ANSWER WITHIN 30 DAYS OF THIS ORDER.

Court clerk to give notice.