Judge: Michael E. Whitaker, Case: 21STCV42383, Date: 2023-01-11 Tentative Ruling

Case Number: 21STCV42383    Hearing Date: January 11, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

              Defendant Walter Hong (Defendant) through counsel, Andrew M. Stein (Counsel), move to vacate the default entered against Defendant by the Clerk of Court on April 7, 2022.  Plaintiff has filed a response to Defendant’s motion stating her non-opposition to Defendant’s request to vacate the entry of default.

ANALYSIS

Per Code of Civil Procedure section 473, subdivision (b), a court may “relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” In addition, a court must vacate a default or dismissal when a motion for relief under Section 473, subdivision (b) is filed timely and accompanied by an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise or neglect “unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise or neglect.”  (Code Civ. Proc., § 473, subd. (b).)  

The party or the legal representative must seek such relief “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Ca.App.4^th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”]).  “The six-month limit is mandatory; a court has no authority to grant relief under section 473, subdivision (b), unless an application is made within the six-month period.”  (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340, citations omitted.) 

First, the Court finds that Defendant’s motion for mandatory relief is timely because the Court has not entered a default judgment against Defendant in the action. The entry of a default judgment triggers the limitations period from which a party may seek mandatory relief under Section 473.  (See, e.g., Sugasawara v. Newland (1994) 27 Cal.App.4th 294 [six-month limitation period for relief from default based on attorney's neglect commences at time default judgment is rendered, rather than earlier when default is entered].)

            Second, Defendant seeks to vacate the entry of default on April 7, 2022, due to the fault of Defendant’s counsel.  Defendant’s application for relief is accompanied by the declaration of Defendant’s counsel, Andrew M. Stein (Counsel), stating that the sole grounds for failing to file a timely Answer in this matter was due to Counsel’ inadvertence and congestion of case calendar.  (Declaration of Andrew M. Stein, ¶ 3.)  Counsel states the instant motion to vacate the default was further delayed by his participation in a trial during the entire month of August.  (Declaration of Andrew M. Stein, ¶ 3.) 

            Based on the timely request to vacate the entry of default supported by an attorney affidavit admitting to attorney fault, the Court finds Defendant’s application to vacate entry of default conforms with the requirements under Code of Civil Procedure section 473, subdivision (b).

            Defendant further requests in his motion that the Court “accept the Demurrer as deemed filed, for a date to be determined.”  (Defendant’s Motion, p. 7.)  Defendant has failed to file a demurrer with the instant motion.  Further filing a demurrer in conjunction with the instant motion would be improper.  Accordingly, the Court denies the request.

CONCLUSION AND ORDER

            Therefore, the Court grants Defendant’s motion to vacate entry of default. The entry of default against Defendant on April 7, 2022 is hereby vacated.  

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.