Crestline Enterprises v. Motorcars West CA2/1

Filed 3/30/15 Crestline Enterprises v. Motorcars West CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

CRESTLINE ENTERPRISES, INC., B256738

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. LC099645) v.

MOTORCARS WEST, LLC, et al.,

Defendants and Respondents.

APPEAL from an order of the Superior Court of Los Angeles County. Frank J. Johnson, Judge. Affirmed. ______ Boren, Osher & Luftman, Jeremy J. Osher and Eugenia Castruccio Salamon for Plaintiff and Appellant. Kolar & Associates, Elizabeth L. Kolar and Brook John Changala for Defendants and Respondents. ______

Crestline Enterprises, Inc. filed a complaint against Motorcars West, LLC, dba the Auto Gallery, Motorcars West I, LLC and Motorcars West Realty (collectively, Motorcars West) alleging contract and tort causes of action in connection with its purchase of motor vehicles. After Motorcars West failed to answer the complaint, Crestline Enterprises obtained entry of default and default judgment of $35,827.48 in damages, interest, costs and attorney fees. Less than three months after the default judgment, Motorcars West moved to vacate the entry of default and default judgment under Code of Civil Procedure section 473.5.1 The trial court granted the motion. Crestline Enterprises appeals, contending that the order granting the motion to vacate must be reversed because the evidence presented by Motorcars West did not meet the statutory requirements. We conclude the court acted within its discretion in granting the motion and thus affirm the order. DISCUSSION “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. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.” (§ 473.5, subd. (a).) 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.” (Id., subd. (b).) “Upon a finding by the court that the motion was made within the period permitted . . . and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the