LATOYIA G. FURLOW VS RODERICK CULPEPPER, ET AL.

Tentative Rulings

Case Number: 19STLC03391    Hearing Date: September 23, 2020    Dept: 26

Furlow v. A&M Financial Services, et al

MOTION TO VACATE ENTRY OF DEFAULT

(CCP § 473(b))

TENTATIVE RULING:

Defendant A&M Financial Services’ Motion to Vacate Default is GRANTED. THE DEFAULT ENTERED ON JUNE 4, 2020 IS HEREBY VACATED. DEFENDANT A&M FINANCIAL SERVICES TO FILE AND SERVE HIS ANSWER WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

ANALYSIS:

On April 8, 2019, Plaintiff Latoyia G. Furlow (“Plaintiff”) filed the instant action for breach of contract against Defendants A&M Financial Service (“Defendant A&M”), Cah Financial Services, and Roderick Culpepper. According to the proof of substitute service, Defendant A&M was served effective May 25, 2019. (Proof of Service, filed 6/3/19.)

On June 26, 2019, Plaintiff filed a First Amended Complaint and re-served Defendant A&M personally on July 8, 2019. When Defendant A&M failed to respond to the First Amended Complaint, Plaintiff entered its default on June 4, 2020. Defendant A&M sought to file an Answer on June 12, 2020 and then filed the instant Motion to Vacate Entry of Default on June 18, 2020. Plaintiff filed an opposition on September 9, 2020.

Discussion

Defendant A&M Financial moves for relief from the default judgment pursuant to Code of Civil Procedure, section 473, subdivision (b), under which 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 must also be accompanied by a copy of the moving party’s responsive pleading. (Code Civ. Proc., § 473, subd. (b).)

The Motion was initially filed less than six months after entry of default, making it timely under the moving statute. It is also accompanied by a declaration from Defendant A&M Financial’s principal, Jerry Anderson, who states that upon learning of this action, he questioned Defendant Culpepper. (Motion, Anderson Decl., ¶¶1-3.) Defendant Culpepper explained to Anderson that Plaintiff was his client and that he would handle the situation. (Id. at ¶3.) Anderson checked in with Defendant Culpepper periodically and was assured that the action was being handled. (Id. at ¶4.) Anderson, who is 81 years old, has never been involved in a lawsuit and believed Defendant Culpepper would take care of the situation without his involvement. (Id. at ¶5.) Upon receipt of the request for entry of default, Anderson realized Defendant Culpepper had not informed the Court A&M Financial was not involved with Plaintiff and retained counsel to vacate the entry of default. (Id. at ¶6.)

In opposition, Plaintiff argues that Defendant A&M Financial’s reliance on Defendant Culpepper was unreasonable and inexcusable because Anderson had notice of the action but continued to speak only to Defendant Culpepper about it. Plaintiff’s counsel also declares he sought to speak to Defendant A&M Financial directly about this case, but his calls were not returned. (Motion, Bowen Decl., ¶9.) Additionally, Plaintiff’s tax returns for 2016 and 2017, on which this action is based, are signed for by Defendant Culpepper on behalf of A&M Financial. (Motion, Furlow Decl., Exhs. A and B.)

“Excusable neglect” is generally defined as an error “ ‘ “a reasonably prudent person under the same or similar circumstances might have made.” ’ ” (Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1354 (citing Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258.) Anderson declares that he was rented office space to Defendant Culpepper and they had no employer-employee relationship. (Motion, Anderson Decl., ¶2.) Anderson further states that Defendant Culpepper handles his own clients and informed Anderson that Plaintiff was Culpepper’s client. (Id. ¶3.)

The parties’ evidence is in conflict regarding the extent of Defendant A&M Financial involvement in the preparation of Plaintiff’s tax returns. Plaintiff’s opposition, however, raises crucial discrepancies. Despite Defendant Culpepper’s declaration that he never worked for A&M Financial and has never done business as A&M Financial, Plaintiff’s 2016 and 2017 tax returns bear his name as working for the firm “A&M Financial Services.” Plaintiff’s counsel also disavows Defendant Culpepper’s contention that they were making progress towards a resolution of the case. (Motion, Culpepper Decl., ¶4.) According to Plaintiff’s counsel, it was a struggle to get ahold of either Defendant. (Id. at ¶¶8-11.) After Culpepper provided a false address he has been evading Plaintiff’s counsel’s attempts at communication. (Id. at ¶¶11-14.) The Court has since denied Plaintiff’s application to serve Defendant Culpepper by publication. (Id. at ¶14.)

The discrepancies in the parties’ accounts seem to originate from Defendant Culpepper. He signed the 2016 and 2017 tax returns for Plaintiff with A&M Financial Services listed as the firm, but now disavows any relationship with Defendant A&M Financial. Similarly, Defendant Culpepper stated that the parties were working towards a settlement, which is contradicted by Plaintiff’s counsel. This supports the idea that Anderson was reassured by Defendant Culpepper that he would take care of the action. Defendant Culpepper expressly admits to making these reassurances.

Under these circumstances, the Court finds A&M Financial had demonstrated excusable neglect in failing to respond to the Complaint.

Conclusion

Defendant A&M Financial Services’ Motion to Vacate Default is GRANTED. THE DEFAULT ENTERED ON JUNE 4, 2020 IS HEREBY VACATED. DEFENDANT A&M FINANCIAL SERVICES TO FILE AND SERVE HIS ANSWER WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

Court clerk to give notice.