Judge: Mark E. Windham, Case: 24STLC02579, Date: 2024-11-18 Tentative Ruling

Case Number: 24STLC02579    Hearing Date: November 18, 2024    Dept: 26

 Orewyler v. Wang, et al.

VACATE ENTRY OF DEFAULT

(CCP § 473(b))

TENTATIVE RULING:

Defendants Yichuan Wang and Liang Guan’s Motion to Vacate Default is DENIED.

ANALYSIS:

On April 9, 2024, Plaintiffs Brandon Orewyler and Chante Eliaszadeh (“Plaintiffs”) filed the instant action against Defendants Yichuan Wang and Liang Guan (“Defendants”). Following Defendants’ failure to file a responsive pleading, the Court entered their default on August 20, 2024.

Defendants filed the instant Motion to Vacate Default on September 4, 2024. Plaintiffs filed an opposition on November 5, 2024 and Defendants replied on November 12, 2024.

Discussion

Defendants moves to vacate the entry of default on two grounds. First, that Plaintiffs did not warn defense counsel in advance of obtaining default, and second, pursuant to Code of Civil Procedure section 473, subdivision (b). The Motion is supported by the declaration of defense counsel, who states that the parties met and conferred regarding the date to file Defendants’ proposed Motion to Strike but could not reach a resolution. (Motion, Cole Decl., ¶7.) In opposition, however, Plaintiff Orewyler provides a declaration with an attached email demonstrating that they did in fact inform defense counsel they would seek default, but would wait until June 22, 2024. (Opp., Orewyler Decl., Exh. A, ¶¶2-3.) Plaintiffs’ counsel also informed defense counsel that further extension of the time to respond had to approved by the Court. (Ibid.) Even with that warning, Plaintiffs did not file the request for entry of default until August 20, 2024. Therefore, Plaintiffs did warn defense counsel that entry of default would be sought. Defendants’ response to this evidence in reply is that Plaintiffs’ warning of entry of default had become “stale” by the time the request for entry of default was actually filed, two months later. It is truly an astonishing argument to make in favor of vacating the default that Defendants were provided too much time to file a responsive pleading. The Court finds no basis in law or fairness to hold that Defendants should have been provided a warning in closer proximity to the filing of the request for entry of default such that the warning provided in June 2024 was of no effect. The request to vacate the entry of default on the grounds of lack of warning by Plaintiffs to defense counsel is denied.

Regarding relief pursuant to 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 party fault attesting to their excusable mistake, inadvertence, surprise or neglect. (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 instant Motion was timely filed less than one month after entry of default. However, as explained above, Defendants were warned that default would be sought in mid-June 2024 and still failed to file a responsive pleading. The Motion does not explain how this was excusable and instead attempted to make it appear as if Defendants had no warning that their default would be taken. The Court cannot find that Defendants’ failure to respond to the action after a clear warning that default would be taken is excusable. Therefore, relief under Code of Civil Procedure section 473, subdivision (b) from the entry of default is also denied.

Conclusion

Defendants Yichuan Wang and Liang Guan’s Motion to Vacate Default is DENIED.

Plaintiffs to give notice.