ALLSTATE NORTHBROOK INDEMNITY COMPANY A/S/O ROLANDO CERVANTES VS JORGE MARIO DUARTE, ET AL.

Tentative Rulings

Case Number: 20STLC03644    Hearing Date: February 09, 2021    Dept: 25

HEARING DATE:    Tue., February 9, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Allstate Northbrook Indemnity Co. v. Duarte, et al.

CASE NUMBER: 20STLC03644  COMP. FILED: 04-27-20

PROCEEDINGS:     MOTION TO VACATE DEFAULT

MOVING PARTY:   Defendants Jorge Mario Duarte and Pactrux, Inc.

RESP. PARTY: None

MOTION TO SET ASIDE/VACATE DEFAULT  

(CCP § 473(b))

TENTATIVE RULING:

Defendants Jorge Mario Duarte and Pactrux, Inc.’s Motion to Vacate Default is GRANTED. The default entered against Defendants on October 15, 2020 is HEREBY VACATED. Proposed answer to be filed within ten (10) days of this order.

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of February 5, 2021 [   ] Late [X] None

REPLY: None filed as of February 5, 2021 [   ] Late [X] None

ANALYSIS:

1. Background

On April 27, 2020, Plaintiff Allstate Northbrook Indemnity Company (“Plaintiff”) filed an action for motor vehicle negligence and general negligence against Defendants Jorge Mario Duarte (“Duarte”) and Pactrux, Inc. (“Pactrux”) (collectively, “Defendants”). Following Defendants’ failure to respond, default was entered against them on October 15, 2020.

Defendants filed the instant Motion to Vacate Default (the “Motion”) on November 2, 2020. To date, no opposition has been filed.

1. Legal Standard & Discussion

Defendants seek relief pursuant to Code of Civil Procedure section 473, subdivision (b). (Mot., p. 2:1-3.) Under this statute, an application for relief must be made no more than six months after entry of the judgment, dismissal, order or other proceeding 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.)

Defendants’ Motion is timely. They seek to set aside the October 15, 2020 default entered against them due to Defendants’ counsel’s mistake and inadvertence. (Mot., p. 3:11-15.) Specifically, counsel states that he neglected to notice that Defendants were each served on different dates and mistakenly believed that the later date, September 1, 2020, was the only operative date. (Id., Salley Decl., ¶ 5.) The error was further compounded when he mistakenly calendared November 1, 2020 as the deadline to file a responsive pleading. (Id.) Counsel did not realize his error until October 23, 2020, when he reviewed the file in anticipation of speaking with Plaintiff’s counsel regarding a possible settlement. (Id. at ¶ 6.)

Based on the timely request to vacate the default supported by an attorney affidavit of fault, the Motion is GRANTED.

1. Conclusion & Order

For the foregoing reasons, Defendants Jorge Mario Duarte and Pactrux, Inc.’s Motion to Vacate Default is GRANTED. The default entered against Defendants on October 15, 2020 is HEREBY VACATED. Proposed answer to be filed within ten (10) days of this order.

Moving party is ordered to give notice.