Judge: Mark E. Windham, Case: 23STLC06249, Date: 2024-05-07 Tentative Ruling

Case Number: 23STLC06249    Hearing Date: May 7, 2024    Dept: 26

Mercury Ins. Co. v. Chavez, et al.

VACATE ENTRY OF DEFAULT

(CCP § 473(b))

TENTATIVE RULING:

Defendant Edwin Chavez’s Motion to Vacate Entry of Default is GRANTED. THE DEFAULT ENTERED ON JANUARY 4, 2024 IS VACATED.

ANALYSIS:

On September 27, 2023, Plaintiff Mercury Insurance Company (“Plaintiff”) filed the instant action against Defendants Cynthia Chavez (“Defendant Chavez”) and Edwin Chavez (“Defendant Chavez”). Defendant Cynthia filed an answer to the Complaint on November 9, 2023. When Defendant Ewin failed to file a responsive pleading, Plaintiff obtained their default on January 4, 2024.

On March 28, 2024, Defendant Edwin filed the instant Motion to Vacate Default. No opposition has been filed to date.

Discussion

Defendant Edwin 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 less than three months after entry of default and is supported by a declaration of fault from Defendant Edwin who states that he did not realize the answer filed by Defendant Cynthia was insufficient to respond on behalf of both Defendants. (Motion, Chavez Decl., ¶¶4-5.) He made this assumption because Defendants are married and Defendant Cynthia was the driver of the vehicle at the time of the accident. (Ibid.) This demonstrates excusable neglect by Defendant Edwin in failing to respond to the Complaint.

Defendant Chavez also filed an answer on April 2, 2024. 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 Edwin Chavez’s Motion to Vacate Entry of Default is GRANTED. THE DEFAULT ENTERED ON JANUARY 4, 2024 IS VACATED.

Court clerk to give notice.