Judge Mark E. Windham, Case Number: 23STLC08138, Date: 2024-06-17 Tentative Ruling

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Defendant Cheryl Jackson, individually and as Trustee of the Cheryl Jackson Living Trust dated 06/26/2017’s Motion to Vacate Entry of Default is GRANTED ON CONDITION THAT DEFENDANT’S PROPOSED RESPONSIVE PLEADING IS SUBMITTED TO THE COURT BY THE DATE OF THE HEARING ON THE MOTION. UPON THE MOTION BEING GRANTED, DEFENDANT IS TO FILE AND SERVE THE PROPOSED RESPONSIVE PLEADING WITHIN 20 DAYS.

On December 22, 2023, Plaintiff Trusted Home Construction, Inc. (“Plaintiff”) filed the instant action for breach of construction contract against Defendant Cheryl Jackson, individually and as Trustee of the Cheryl Jackson Living Trust dated 06/26/2017 (“Defendant”). Following Defendant’s failure to file a responsive pleading, the Court entered her default on February 16, 2024.

Defendant filed the instant Motion to Vacate Entry of Default on May 21, 2024. Plaintiff filed an opposition on June 4, 2024 and Defendant replied on June 10, 2024.

Defendant moves for an order vacating 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 also within a reasonable time. (Code Civ. Proc., § 473, subd. (b).) The Motion was timely filed three months after entry of default and is supported by a declaration of fault from Defendant. Defendant states she was in communication with her cousin, a city inspector, and understood that her cousin would reach out to Plaintiff’s counsel about the case. (Motion, Jackon Decl., ¶¶2-3.) However, Defendant’s cousin was hospitalized before doing so and Plaintiff promptly took Defendant’s default one month after service of the Summons and Complaint. (Id. at ¶4.) Plaintiff’s objection to Defendant’s declaration as lacking foundation is overruled. The declaration demonstrates that Defendant believed someone with professional expertise in construction would help resolve the dispute. The entry of default was due to Defendant’s excusable neglect in allowing her cousin to handle the matter. Upon realizing default had been entered, Defendant promptly retained counsel at the end of February 2024. (Motion, Holbrook, Jr. Decl., ¶2.) Defense counsel spent two months informally attempting to resolve the entry of default with Plaintiff’s counsel before filing the instant Motion to Vacate. (Ibid.)

However, the Motion is not accompanied by a copy of Defendant’s proposed responsive pleading, as required by the moving statute. A copy of the proposed responsive pleading must be submitted by the hearing date before the Motion can be granted.