Judge: Mark E. Windham, Case: 23STLC06212, Date: 2024-01-23 Tentative Ruling

Case Number: 23STLC06212    Hearing Date: March 19, 2024    Dept: 26

Moon v. Sguigna, et al.

VACATE DEFAULT AND DEFAULT JUDGMENT

(CCP §§ 473(b), 473.5)

TENTATIVE RULING:

Defendant Joseph Sguigna’s Motion to Vacate Default and Default Judgment is GRANTED. WITHIN 30 DAYS OF THIS ORDER, DEFENDANT IS TO FILE, SERVE, AND RESERVE A HEARING DATE FOR, THE MOTION TO STRIKE.

ANALYSIS:

On September 27, 2023, Plaintiff Doo H. Moon (“Plaintiff”) filed the instant action for breach of lease agreement against Defendant Joseph Sguigna (“Defendant”). Following Defendant’s failure to file a responsive pleading, the Court entered their default on November 27, 2023. Default Judgment was entered on December 6, 2023.

Defendant filed the instant Motion to Vacate Default and Default Judgment on February 27, 2024. No opposition has been filed to date.

Discussion

The Motion is brought pursuant to different statutes, including Code of Civil Procedure section 473, subdivision (b) and Code of Civil Procedure section 473.5. 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).) The Motion does not demonstrate that Defendant lacked actual knowledge of the action in time to file a responsive pleading. (See Motion, Sguigna Decl.) Instead, it admits that Defendant attempted to file an answer. This situtation is more applicable to the relief 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 filed less than four months after entry of default, which the Court finds to be reasonable, and is supported by an affidavit of fault. Specifically, Defendant declares that filing of the response to the Complaint was accidently attached to the proof of service filed on November 2, 2023 because the filing cover sheet was incorrectly completed. (Motion, Sguigna Decl., ¶11.) As a result, the clerk’s office filed the documents as one image. The “proof of service by mailing” document filed on November 2, 2023 includes, at pages 3 to 13, Defendant’s Motion to Strike Portions of Plaintiff’s Complaint; Memorandum of Points and Authorities. (Proof of Service by Mail, filed 11/02/23, pp. 3-13.) Defendant did not realize that because the Motion to Strike was filed as part of the proof of service, they were deemed to be in default. (Motion, Sguigna Decl., ¶11.)

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 Joseph Sguigna’s Motion to Vacate Default and Default Judgment is GRANTED. WITHIN 30 DAYS OF THIS ORDER, DEFENDANT IS TO FILE, SERVE, AND RESERVE A HEARING DATE FOR, THE MOTION TO STRIKE.

Court clerk to give notice.