MONROE JACQUES DE ROTHSCHILD VS RICHARD DISISTO, ET AL.

Tentative Rulings

Case Number: 18STLC13144    Hearing Date: January 13, 2021    Dept: 26

Rothschild v. Disisto, et al.

MOTION TO VACATE ENTRY OF DEFAULT

(CCP § 473(b))

TENTATIVE RULING:

Defendant Richard Disisto’s Motion to Vacate Entry of Default is DENIED.

ANALYSIS:

Plaintiff Monroe Jacques De Rothschild (“Plaintiff”) filed the instant action for fraud, recission and related claims arising out of a construction agreement against Defendant Richard Disisto (“Defendant Disisto”) and others on October 24, 2018. The Complaint was not served. Plaintiff filed a First Amended Complaint on January 29, 2019. On February 7, 2020, Plaintiff filed Proof of Service by Substitute Service with respect to Defendant Disisto. Following Defendant Disisto’s failure to file a responsive pleading, the Court entered his default on March 23, 2020.

Defendant Disisto filed the instant Motion to Vacate Entry of Default on September 15, 2020. To date, no opposition has been filed to the Motion.

Discussion

Defendant Disisto seeks relief from the default entered on March 23, 2020 pursuant to Code of Civil Procedure, section 473, subdivision (b). Under this statute, an application for relief 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 instant Motion is brought pursuant to the discretionary relief prong of section 473, subdivision (b) for Defendant Disisto’s own mistake, inadvertence, surprise or neglect. A motion for relief based on party mistake, inadvertence, surprise or neglect must not only must be brought within six months after entry of the order from which relief is sought, but also within a reasonable time. (Code Civ. Proc., § 473, subd. (b).)

Defendant Disisto has not shown that the Motion is timely. The Motion was filed on September 15, 2020, almost six months after the March 23, 2020 entry of default. Defendant Disisto admits to learning of this action in April 2020, but does not explain why the Motion was not filed until five months later. (Motion, Disisto Decl., ¶¶2-7.)

The Court also finds the declaration does not adequately explain why Defendant Disisto was unaware of this action. According to the proof of service filed on February 7, 2020, the First Amended Complaint was served on Defendant Disisto by leaving the papers at a private mailbox office with the person apparently in charge and then mailing the papers there. (Proof of Service, filed 2/7/20, ¶¶4-5.) The request for entry of default was mailed to the same address and presumably received by Defendant Disisto. (Request for Entry of Default, filed 3/23/20, ¶6b.) The Motion does not argue that the service address was improper or raise any other challenge to the propriety of service. The papers were left at the mailbox on January 21, 2020 and mailed there on the same date. (Proof of Service, filed 2/7/20, ¶5.) If the party’s failure to respond to the action is the result of inexcusable neglect, relief is not available under Code of Civil Procedure section 473, subdivision (b). (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438 (citing Rodrigues v. Superior Court (2005) 127 Cal.App.4th 1027, 1033).) Defendant’s declaration does not demonstrate that his lack of notice was not the result of his inexcusable neglect.

Based on the foregoing, the Court finds Defendant Disisto has not demonstrated that the factors for relief under Code of Civil Procedure section 473, subdivision (b) are satisfied.

Conclusion

Defendant Richard Disisto’s Motion to Vacate Entry of Default is DENIED.

Plaintiff to give notice.