Judge: Mark E. Windham, Case: 23STLC06961, Date: 2024-07-18 Tentative Ruling

Case Number: 23STLC06961    Hearing Date: July 18, 2024    Dept: 26

El Monte Wholesale Meat, Inc. v. La Ceiba, Inc., et al.

VACATE DEFAULT AND DEFAULT JUDGMENT

(CCP § 473(b))

TENTATIVE RULING:

Defendant Defendants La Ceiba Inc. dba Laguna Market adba Laguna Market #2; and Leticia Valladares’ Motion to Vacate Entry of Default is GRANTED.

ANALYSIS:

On October 3, 2023, Plaintiff El Monte Wholesale Meat, Inc. (“Plaintiff”) filed the instant action against Defendants La Ceiba Inc. dba Laguna Market adba Laguna Market #2; and Leticia Valladares (“Defendants”). Following Defendants’ failure to file a responsive pleading, the Court entered their default on March 5, 2024 and default judgment on April 10, 2024.

Defendants filed the instant Motion to Vacate Default and Default Judgment on June 17, 2024. Plaintiff filed an opposition on July 1, 2024 and Defendants replied on July 5, 2024.

Discussion

The Motion to Vacate is brought pursuant to Code of Civil Procedure section 473, subdivision (b), on the grounds that the parties had settled the action and Plaintiff did not give defense counsel advance warning of the request for default. The statute 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 the 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 Motion was timely filed three months after entry of default and is supported by a declaration of fault. Defendant Valladares states that they asked defense counsel to negotiate a settlement and began making payments in January 2024. (Motion, Valladares Decl., ¶4.) Defendants were unaware of the request for default and only learned of it when the bank levied their bank account. (Id. at ¶5.) Although the Motion is not accompanied by a copy of Defendants’ proposed answer to the Complaint, a copy of the parties’ signed settlement agreement is attached. (Motion, Beck Decl., Exh. 2.)

Furthermore, Plaintiff did not inform defense counsel that it intended to take Defendants’ default despite the settlement negotiations. This is also grounds to vacate the default and default judgment:

[I]t is now well-acknowledged that an attorney has an ethical obligation to warn opposing counsel that the attorney is about to take an adversary's default. (Id. at pp. 701-702, 84 Cal.Rptr.3d 351.)

In that regard we heartily endorse the related admonition found in The Rutter Group practice guide, and we note the authors' emphasis on reasonable time: “Practice Pointer: If you're representing plaintiff, and have had any contact with a lawyer representing defendant, don't even attempt to get a default entered without first giving such lawyer written notice of your intent to request entry of default, and a reasonable time within which defendant's pleading must be filed to prevent your doing so.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2008) § 5:73, p. 5-19 (rev. #1, 2008) as quoted in Fasuyi, supra, 167 Cal.App.4th at p. 702, 84 Cal.Rptr.3d 351.)

(Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 135.)

Based on the foregoing, the Motion to Vacate Default and Default Judgment is granted.

Conclusion

Defendant Defendants La Ceiba Inc. dba Laguna Market adba Laguna Market #2; and Leticia Valladares’ Motion to Vacate Entry of Default and Default Judgment is GRANTED.

Moving party to give notice.