Judge: Mark E. Windham, Case: 24STLC02033, Date: 2024-08-08 Tentative Ruling
Case Number: 24STLC02033 Hearing Date: August 8, 2024 Dept: 26
Anakwenze, et al. v. Thomas, et al.
VACATE ENTRY OF DEFAULT
(CCP §§ 473(b))
TENTATIVE RULING:
Defendant Melanie Orange-Thomas’
Motion to Vacate Entry of Default is DENIED.
ANALYSIS:
On March 20, 2024, Plaintiffs Odera Anakwenze and Ebere
Anakwenze (“Plaintiffs”) filed the instant action for breach of lease agreement
against Defendants Myles Thomas (“Defendant Thomas”) and Melanie Orange-Thomas
(“Defendant Orange-Thomas”). Following Defendant Orange-Thomas’ failure to file
a responsive pleading, the Court entered their default on May 14, 2024.
Defendant Orange-Thomas filed the instant Motion to Vacate Default on June 24,
2024. Plaintiffs filed an opposition on July 26, 2024.
Discussion
As an initial matter, Plaintiffs argue that the Motion was
untimely served on June 19, 2024, less than the required 16 court days prior to
the hearing date. (See Code Civ. Proc., § 1005.) The Court notes the untimely
service but finds Plaintiffs were able to file a substantive opposition without
any apparent prejudice. Plaintiffs also make an argument in opposition to the
Motion pursuant to Code of Civil Procedure section 473.5, which the Court will
disregard. The Motion is not brought pursuant to that statute.
The Motion to Vacate Default is brought pursuant to Code of
Civil Procedure section 473, subdivision (b), which 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.)
Where the statute requires
that “ ‘ “the application must be made within a ‘reasonable time’ … what is a
reasonable time in any case depends upon the circumstances of that particular
case.” While in “the determination of that question, a large discretion is
necessarily confided to [the trial] court” ... there must be some showing—some
evidence—as the basis for the exercise of such discretion.’ ” (Caldwell v.
Methodist Hospital (1994) 24 Cal.App.4th 1521, 1524 [citing Carrasco v.
Craft (1985) 164 Cal.App.3d 796, 805].) The Motion was timely filed
less than two months after entry of default.
The Motion, however, is not supported by a declaration from
Defendant Orange-Thomas explaining their failure to timely file a response. The
Motion argues that Defendant Orange-Thomas was in the middle of meeting and
conferring with Plaintiffs’ counsel when default was entered. The opposition
from Plaintiffs is supported by a declaration from counsel explaining that
communications were exchanged with Defendant Orange-Thomas on May 1 and 2, 2024
with settlement and counter-offers. (Opp., Hensley Decl., ¶¶4-5.) Plaintiffs’
counsel did not hear back from Defendant Orange-Thomas and emailed on May 13,
2024 warning that default would be taken without a response. (Id. at ¶6
and Exh. 2.) Defendant Orange-Thomas did not respond and default was entered on
May 14, 2024. (Id. at ¶7.) Defendant Orange-Thomas does not explain this
lack of response in their Motion.
Finally, the Motion is also not supported by a copy of
Defendant Orange-Thomas’ proposed responsive pleading. Accordingly, the
requirements for relief under Code of Civil Procedure section 473, subdivision
(b) have not been met.
Conclusion
Defendant Melanie Orange-Thomas’ Motion to Vacate Entry of
Default is DENIED.
Court clerk to give notice.