Case Number: KC066126    Hearing Date: August 05, 2014    Dept: O

Well and Fit Adult Day Health Care, Inc. v. Trisea, LLC, et al. (KC066126) Revised Tentative

1. Defendant Trisea, LLC’s MOTION FOR ORDER SETTING ASIDE DEFAULT

Respondent: Plaintiff Well and Fit Adult Day Health Care, Inc.

2. Plaintiff Well and Fit Adult Day Health Care, Inc.’s MOTION FOR ATTORNEYS’ FEES AND COSTS

Respondent: NO OPPOSITION

TENTATIVE RULING

1. Motion to Set Aside Default

Defendant Trisea, LLC’s motion for order setting aside default is DENIED.

The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. (CCP 473(b).)

Trisea moves to vacate entry of default because it claims an “agent” of BTY Properties executed a substitution of attorney without Trisea’s consent. (Ko Decl., Pars. 4-5.) The motion failed to identify this “agent.” However, in Opposition, Plaintiff points out that the agent is Fiona Ko, who, in exhibits to the Cross-Complaint, is identified as a “Managing Member” of Trisea. (Opposition, Ex. I, Cross-Complaint, Ex. C.) Trisea also contends it was coerced into signing the substitution, but this claim is inadmissible hearsay. Noticeably absent from the motion, is any declaration by Fiona Ko, the individual who signed the substitution. Finally, the Substitution of Attorney form gives notice to the parties that corporations may not represent themselves. Having failed to meet its burden of establishing mistake, inadvertence, surprise, and excusable neglect, the motion is DENIED.

2. Motion for Attorney’s Fees and Costs

Plaintiff Well and Fit Adult Day Health Care, Inc.’s motion for attorneys’ fees and costs is DENIED without prejudice. Plaintiff has yet to obtain a default judgment.