Case Number: BC512818    Hearing Date: October 06, 2014    Dept: 34

Moving Party: Plaintiff Los Angeles County Metropolitan Transit Authority

Resp. Party: None

Plaintiff’s motion to vacate the default entered against Ebone Nicole Smith is GRANTED.

BACKGROUND:

Plaintiff commenced this eminent domain action on 6/21/13. Defendants Miguel Valenzuela, Eustace Simpson, Olasumbo Oladipupo, Victor Sanchez, and Ebonae Nicole Smith, and their respective dba entities, were substituted for Doe defendants on 7/10/13. On 7/10/13, plaintiff dismissed the following defendants, without prejudice: Royal Auto Center, MV Auto Repair, Nicci’s Closet Hair Studio, Auto Mall Auto Electric, and A-1 Smog Check.

Answers were filed by defendants JP Morgan Chase Bank, N.A. (8/9/13) and Jean Haddad Florence LLC (8/26/13). On 10/16/13, plaintiff and these defendants filed a stipulation and order for partial withdrawal of deposit. Pursuant to the stipulation, JP Morgan Chase would obtain $1,219,639.14 plus interest from the funds on deposit, in exchange for a disclaimer as to any further right, title, or interest in the subject property. Jean Haddad Florence LLC would obtain $500,000.00 from the funds.

On 10/30/13, the Court entered an order for prejudgment possession of the subject property. On 1/23/14, the Court entered an interlocutory judgment in condemnation as to defendant Jean Haddad Florence LLC.

On 11/4/13, the Court entered default against Ebone Nicole Smith.

On 8/6/14, the Court continued the OSC re entry of default judgment. The Court noted that defendant Smith’s name had been spelled two different ways: Ebonae Nicole Smith and Ebone Nicole Smith. The Court instructed plaintiff to correct this discrepancy and indicated that the request for entry of judgment would be granted once the correction was made.

ANALYSIS:

Plaintiff moves to vacate the default entered against Ebone Nicole Smith pursuant to Code of Civil Procedure section 473(a). “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect.” (Code Civ. Proc., § 473(a).) The entry of default constitutes a proceeding. (See Brockman v. Wagenbach (1957) 152 Cal.App.2d 603, 615.)

Plaintiff’s counsel declares that the request for entry of default for Smith contained an undetected typographical error, and that Smith’s actual name is Ebonae Nicole Smith. (See Suarez Decl., ¶¶ 3-5.) After being informed of the error, plaintiff submitted a new request for entry of default to correct the spelling of Smith’s name, but this request was rejected by the clerk. (Id., ¶¶ 6-7, Exhs. C, D.) Plaintiff was thereafter informed that a motion to vacate the previously entered default was necessary in order to process the correct default. (Id., ¶ 9.) This is sufficient to support the instant motion.

Plaintiff’s motion to vacate the default entered against Ebone Nicole Smith is GRANTED.