Judge: Melvin D. Sandvig, Case: 23CHCV02991, Date: 2024-08-19 Tentative Ruling

Case Number: 23CHCV02991    Hearing Date: August 19, 2024    Dept: F47

Dept. F47

Date: 8/19/24

Case #23CHCV02991

MOTION TO VACATE DEFAULT

Motion filed on 5/10/24.

MOVING PARTY: Defendant Fawn M. Grant

RESPONDING PARTY: Plaintiff LCS Capital, LLC

NOTICE: ok

RELIEF REQUESTED: An order vacating the default entered on 11/15/23 against Defendant Fawn M. Grant.

RULING: The motion is granted as set forth below. 

SUMMARY OF FACTS & PROCEDURAL HISTORY

On 10/4/23, Plaintiff LCS Capital, LLC (Plaintiff) filed this action against Defendants Fawn M. Grant (Grant) and Richard Renken (Renken) (collectively, Defendants) for breach of contract.  On 10/15/23, Grant was personally served with the summons and complaint in this matter.  (See Proof of Service filed 11/15/23).  On 11/15/23, default was entered against Grant.  On 11/20/23, while represented by their former counsel, Defendants filed a joint answer to the complaint.

On 3/19/24, Defendants substituted in their current counsel.  Unaware that default had been entered against Grant, thereafter, Defendants filed a Motion for Leave to Amend Answer which is scheduled for hearing on 10/2/24 and a Motion to Compel Arbitration which is scheduled for hearing on 10/3/24.

Grant did not become aware of the default entered against her until 3/27/24 when Plaintiff’s counsel informed Grant’s current counsel in an email.  (Grant Decl.; Michel Decl.).  Since Defendants had just served a 30-day notice of intent to arbitrate pursuant to the contract, Grant waited to file and serve the instant motion.  (Grant Decl.; Michel Decl.).  There was an additional delay because of a family medical emergency experienced by Grant’s counsel.  (Michel Decl.).

Thereafter, on 5/10/24, Grant filed and served the instant motion seeking an order vacating the default entered on 11/15/23 against Defendant Fawn M. Grant.  The motion was originally scheduled for hearing on 12/27/24, but was advanced, pursuant to Grant’s ex parte application, to 8/19/24.  (See 7/11/24 Minute Order).  Plaintiff has not opposed or otherwise responded to the motion. 

ANALYSIS

The Court may vacate a default and default judgment entered as a result of a defendant’s mistake, inadvertence, surprise or excusable neglect, if the motion is made within a reasonable time, not exceeding 6 months from the entry of default, and the motion is accompanied by a copy of the pleading the defendant proposes to file upon the setting aside of the default.  See CCP 473(b). 

The Court finds that Grant has made a sufficient showing that the default was entered as a result of her mistake, inadvertence, surprise and/or excusable neglect and the motion was made within a reasonable time (and less than 6 months after the entry of the default) after Grant learned of same and based on other relevant circumstances.  (See Grant Decl.; Michel Decl.).  Grant has also provided a copy of her proposed (first amended) answer to the complaint.  (See Grant Decl., Ex.A). 

CONCLUSION

The motion is granted.  The Court notes that the pleading Grant proposes to file is actually and First Amended Answer to the Complaint made on behalf of Grant and Renken.  (See Grant Decl., Ex.A).  Since Renken is not in default the original Answer filed on 11/20/23 is still operative as to him and a Court order would be required to allow the filing of an amended answer by Renken. 

At the hearing, the Court will discuss with counsel whether Plaintiff is willing to stipulate to allow the First Amended Answer to be filed on behalf of both Grant and Renken at this time.  If not, Grant will be ordered to separately file a revised answer to the complaint on behalf of herself only and Renken will have to proceed with the motion to amend answer.