WESTLAKE SERVICES, LLC, ET AL. VS T & A ELITE AUTO SALE LLC,, ET AL.

Tentative Rulings

Case Number: 18STLC13723    Hearing Date: February 04, 2021    Dept: 26

Westlake Services, LLC v. T&A Elite Auto Sale, LLC, et al.

MOTION TO VACATE DEFAULT JUDGMENT

(CCP § 473(b), 473.5)

TENTATIVE RULING:

Defendant Azzam Ishak’s Motion to Vacate Default and Default Judgment is GRANTED. DEFENDANT AZZAM ISHAK’S ANSWER IS TO BE FILED WITHIN 20 DAYS’ SERVICE OF THIS ORDER. TRIAL DATE IS RESET FOR OCTOBER 29, 2021 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

Plaintiff Westlake Services, LLC (“Plaintiff”) filed the instant action for breach of contract and common counts against Defendants T&A Elite Auto Sale, LLC and Azzam Ishak (“Defendant Ishak”) on October 30, 2018. Following Defendants’ failure to file a responsive pleading, the Court entered their default on May 5, 2020 and default judgment on June 17, 2020.

Defendant Ishak filed the instant Motion to Vacate Default on September 14, 2020. Plaintiff filed an opposition on December 10, 2020 and Defendant Ishak replied on January 12, 2021.

Discussion

Defendant Ishak move for relief from the default pursuant to Code of Civil Procedure, section 473, subdivision (b) and section 473.5. The Court will consider each basis in turn.

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 brought pursuant to discretionary relief prong of section 473, subdivision (b) for Defendant Ishak’s own mistake, inadvertence, surprise or neglect.

The Court finds relief is timely sought under the statute. Default was entered on May 5, 2020 and the instant Motion was filed four months later on September 14, 2020. The Motion is also supported by the declaration of Defendant Ishak who states that he was not aware that his wife signed for service of the Summon and Complaint back in March 2020. (Motion, Azzam Ishak Decl., ¶¶3-5.) Defendant Ishak does not remember his wife giving him those documents. (Ibid.) The declaration of Becky Ishak corroborates this by attesting that she does not remember giving the documents to Defendant Ishak. (Motion, Becky Ishak Decl., ¶¶2-3.) This sufficiently demonstrates that Defendant Ishak was surprised by the entry of default and subsequent default judgment.

Finally, the Motion is accompanied by a copy of Defendant Ishak’s proposed Answer to the Complaint. (Motion, Exh. A.) All the requirements under Code of Civil Procedure section 473, subdivision (b) having been satisfied, relief from the entry of default and default judgment is proper.

The opposition fails to address the evidence regarding Becky Ishak’s failure to notify Defendant Ishak of this action. Also, any argument the opposition makes regarding the sufficiency of the proposed Answer should be addressed by demurrer to the pleading.

Code of Civil Procedure section 473.5

The Motion is also brought under Code of Civil Procedure section 473.5, subdivision (a):

When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action.

(Code Civ. Proc., § 473.5, subd. (a).) Additionally, the motion “shall be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.” (Code Civ. Proc., § 473.5, subd. (b).)

There is no indication in the Court’s records that written notice of the entry of default was served on Defendant Ishak, making June 17, 2022 the outer deadline to file a motion under Code of Civil Procedure section 473.5. However, there is also reasonabless requirement in bringing a motion under this staute. As noted above, the instant Motion was filed little more than four months after entry of default and just three months after default judgment. The Court finds the timing of the Motion to be reasonably diligent under section 473.5.

Additionally, Defendant Ishak provides information from which the Court can determine that lack of actual notice was not caused by his own avoidance of service or inexcusable neglect. Specifically that his wife signed for the papers but apparently did not understand their significance and did not give them to Defendant Ishak. (See Azzam Ishak Decl., ¶¶3-5.) The last requirement under this statute is submission of a proposed Answer, which the Court has already found to be satisfied.

Therefore, the request for relief under Code of Civil Procedure section 473.5 is also appropriate.

Conclusion

Defendant Azzam Ishak’s Motion to Vacate Default and Default Judgment is GRANTED. DEFENDANT AZZAM ISHAK’S ANSWER IS TO BE FILED WITHIN 20 DAYS’ SERVICE OF THIS ORDER. TRIAL DATE IS RESET FOR OCTOBER 29, 2021 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Moving party to give notice.