Judge: Mark E. Windham, Case: 23STLC07952, Date: 2024-05-14 Tentative Ruling

Case Number: 23STLC07952    Hearing Date: May 14, 2024    Dept: 26

Long v. Pacific Coast Taco, Inc., et al.

MOTION TO VACATE ENTRY OF DEFAULT

(CCP §§ 473(b), 473.5, 473(d))

TENTATIVE RULING:

Motion of Jodi Pais Montgomery and David Berrent, Temporary Co-Conservators of the Estate and Person for Nader Ashoori and Temporary Co-Trustees of the Nader Ashoori Trust, dated March 23, 2009, as amended and restated, to Vacate Default and Default Judgment Against Defendant Nader Ashoori is GRANTED. THE DEFAULT ENTERED ON FEBRUARY 13, 2024 AND THE DEFAULT JUDGMENT ENTERED ON FEBRUARY 28, 2024 ARE HEREBY VACATED.

ANALYSIS:

On December 14, 2023, Plaintiff Michael Long (“Plaintiff”) filed the instant action against Defendants Pacific Coast Taco, Inc. (“Defendant PCT”) and Nader Ashoori (“Defendant Ashoori”). When Defendants failed to file a responsive pleading, Plaintiff obtained their default on February 13, 2024 and default judgment on February 28, 2024.

On April 19, 2024, Defendant Ashoori filed the instant Motion to Vacate Default and Default Judgment. No opposition has been filed to date.

Discussion

Jodi Pais Montgomery and David Berrent, Temporary Co-Conservators of the Estate and Person for Nader Ashoori and Temporary Co-Trustees of the Nader Ashoori Trust, dated March 23, 2009, as amended and restated (“Moving Parties”), move to vacate the entry of default pursuant to Code of Civil Procedure section 473, subdivision (b) and (d), and section 473.5.

Under Code of Civil Procedure section 473, subdivision (b), 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 filed just two months after entry of default, making its timely. The Motion also attaches a declaration demonstrating that default was entered due to Defendant Ashoori’s excusable neglect. Specifically, Moving Parties demonstrate that a conservatorship was established for Defendant Ashoori on February 20, 2024 in LASC Case No. 24STPB01366. (Motion, Kim Decl., Exhs. E-G.) Upon being informed of the conservatorship on February 23, 2024, Plaintiff’s counsel suggested stipulating to vacate the entry of default against Defendant Ashoori. (Id. at Exh. C.) However, the Court entered default judgment on February 28, 2024, before the parties had an opportunity to prepare and file a stipulation.

Finally, the Notice of Motion indicates that it is accompanied by a proposed answer, but no such answer is attached to the papers or otherwise filed. Moving Parties are to submit a copy of the proposed answer by the time of the hearing. As the requirements for relief from the default under Code of Civil Procedure section 473, subdivision (b) have been demonstrated, the Motion is granted.

Conclusion

Motion of Jodi Pais Montgomery and David Berrent, Temporary Co-Conservators of the Estate and Person for Nader Ashoori and Temporary Co-Trustees of the Nader Ashoori Trust, dated March 23, 2009, as amended and restated, to Vacate Default and Default Judgment Against Defendant Nader Ashoori is GRANTED. THE DEFAULT ENTERED ON FEBRUARY 13, 2024 AND THE DEFAULT JUDGMENT ENTERED ON FEBRUARY 28, 2024 ARE HEREBY VACATED.

Moving party to give notice.