KELLEY JACKSON INTERIOR DESIGN, LLC VS LESLIE BALLAS

Tentative Rulings

Case Number: 20STLC00363    Hearing Date: January 11, 2021    Dept: 26

MOTION TO VACATE DEFAULT

(CCP § 473(b))

TENTATIVE RULING:

Cross-Defendant Kelley Jackson’s Motion to Vacate Entry of Default is CONDITIONALLY GRANTED. UPON FILING OF KELLEY JACKSON’S PROPOSED ANSWER BY JANUARY 11, 2021, THE DEFAULT ENTERED ON JUNE 10, 2020 IS HEREBY VACATED. KELLEY JACKSON’S COUNSEL OF RECORD IS ORDERED TO PAY ATTORNEY FEES AND COSTS OF $827.80 TO COUNSEL FOR CROSS-COMPLAINANT LESLIE BALLAS WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

ANALYSIS:

Plaintiff Kelley Jackson Interior Design, LLC (“KJID”) filed the instant action for breach of contract and common counts against Defendant Leslie Ballas (“Ballas”) on January 14, 2020. On April 10, 2020, Ballas filed a Cross-Complaint against KJID and Kelley Jackson, an individual (“Jackson”). On June 4, 2020, KJID filed an Answer to the Cross-Complaint. The Court entered default against Jackson on the Cross-Complaint on June 10, 2020.

Jackson filed the instant Motion to Vacate Default on July 2, 2020. Ballas filed an opposition on December 23, 2020.

Discussion

Jackson seeks relief from the default entered on June 10, 2020 pursuant to Code of Civil Procedure, section 473, subdivision (b). Under this statute, 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 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 is timely brought six months after entry of default of the action and supported by an attorney declaration of fault. Defense counsel declares that he inadvertently failed to include Jackson in the Answer to the Cross-Complaint filed on behalf of KJID. (Motion, Sigelman Decl., ¶1.) Jackson sought a stipulation from Plaintiff to vacate the entry of default that was refused. (Id. at ¶2.) The Motion states that it is accompanied by a copy of Jackson’s proposed Answer, as required under the moving statute. (Id. at ¶4.) However, the Court cannot locate the proposed Answer in the Motion papers. Jackson must file a copy of the proposed Answer by the January 11, 2021 hearing date.

Finally, Ballas is entitled to an award of attorney fees and costs as a result of moving party’s attorney’s fault in causing the entry of default. (Code Civ. Proc., § 483, subd. (b).) The amount sought, however, is excessive. Under a lodestar calculation, Ballas is awarded attorney fees of $800.00 and costs of $27.80. (Opp., Irmas Decl., ¶12.)

Conclusion

Cross-Defendant Kelley Jackson’s Motion to Vacate Entry of Default is CONDITIONALLY GRANTED. UPON FILING OF KELLEY JACKSON’S PROPOSED ANSWER BY JANUARY 11, 2021, THE DEFAULT ENTERED ON JUNE 10, 2020 IS HEREBY VACATED. KELLEY JACKSON’S COUNSEL OF RECORD IS ORDERED TO PAY ATTORNEY FEES AND COSTS OF $827.80 TO COUNSEL FOR CROSS-COMPLAINANT LESLIE BALLAS WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

Moving party to give notice.