Judge: Mark E. Windham, Case: 23STLC07599, Date: 2024-10-01 Tentative Ruling

Case Number: 23STLC07599    Hearing Date: October 1, 2024    Dept: 26

Okorocha v. Cortez, et al.

VACATE DEFAULT AND DEFAULT JUDGMENT

(CCP § 473.5)

TENTATIVE RULING:

Defendant Rita Cortez’s Motion to Vacate Default and Default Judgment is GRANTED ON CONDITION THAT DEFENDANT SUBMITS A COPY OF THEIR PROPOSED RESPONSIVE PLEADING BY THE TIME OF THE HEARING.

ANALYSIS:

On November 28, 2023, Plaintiff Okorie Okorocha (“Plaintiff”), in propria persona, filed the instant action for breach of contract against Defendant Rita Cortez (“Defendant”). Following Defendant’s failure to file a responsive pleading, the Court entered their default on February 29, 2024 and default judgment on April 30, 2024. Defendant filed the instant Motion to Vacate Default and Default Judgment on August 19, 2024. No opposition has been filed to date.

Discussion

Defendant moves to vacate the entry of default pursuant to Code of Civil Procedure section 473.5, or on equitable grounds. 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).)

Defendant’s Motion was timely four months of the entry of default judgment and is supported by a declaration that explains that Defendant learned of this action from her bank at the end of June 2024. (Motion, Cortez Decl., ¶13 and Exh. A.) Although Plaintiff filed a proof of substitute service of the Summons and Complaint, Defendant’s declaration demonstrates that they could not have been sub-served as stated therein. (Id. at ¶¶4-9.) Specifically, although the proof of service indicates that Defendant was served by leaving the papers with a “co-resident” at 285 Arlington Drive, Pasadena, California, on December 21, 2023, Defendant did not reside at that location or have a co-resident at that location. (Ibid.) At the time of purported service, Defendant resided at 800-816 S. Orange Grove Blvd., Pasadena, California. (Id. at ¶10.) Defendant did not receive actual notice of the action until June 2024. (Id. at 14.)

However, the Motion is not accompanied by a copy of Defendant’s proposed answer to the Complaint, as required by the moving statute. Defendant must submit a proposed answer by the time of the hearing to meet the requirements for relief from the default and default judgment pursuant to Code of Civil Procedure section 473.5.

Conclusion

Defendant Rita Cortez’s Motion to Vacate Default and Default Judgment is GRANTED ON CONDITION THAT DEFENDANT SUBMITS A COPY OF THEIR PROPOSED RESPONSIVE PLEADING BY THE TIME OF THE HEARING.

Court clerk to give notice.