NATURE OF PROCEEDINGS: Hearing on Defendants’ Motion to Set Aside Default

 

Defendants’ Motion to Set Aside Default is granted.

 

BACKGROUND

On March 5, 2024, Plaintiff Angelica Lopez filed this action against her former landlord, Global Investments LLC, and building manager, Yuliana Solis (collectively, the Defendants).

On July 12, 2024, Plaintiff filed a First Amended Complaint FAC.

On July 16, 2024, Defendants filed an Answer to the original Complaint.

On October 15, 2024, the clerk’s office rejected the Plaintiff’s request for entry of judgment, citing the Defendants’ July 16, 2024, Answer.

In an October 31, 2024, minute order, the Court found that the clerk’s office rejected Plaintiff’s request for default in error and, on its own motion, ordered Defendants in default.

Defendants filed a Motion to Set Aside Default. Plaintiff does not oppose the motion.

 

LEGAL STANDARD

Code of Civil Procedure section 473(b) provides that when an application for relief is made no more than six months after entry of default and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, the court shall set aside a default entered against the attorney’s client, unless the court finds that the default was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. Code Civ. Proc., § 473(b). “[A]n attorney affidavit of fault under the mandatory relief provisions of section 473, subdivision (b) need not include an explanation of the reasons for the attorney's mistake, inadvertence, surprise, or neglect.” Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 443.

 

ANALYSIS

Defendants argue that they have no record of having received service of the FAC but take Plaintiff’s word that she served it. Mot. at p. 3:13-14.

“‘It has been repeatedly held that a defaulting defendant is entitled to be served by an amended complaint when the amendment is as to a matter of substance and not a mere matter of form . . . . The reason for this rule is plain. A defendant is entitled to opportunity to be heard upon the allegations of the complaint on which judgment is sought against him.’” Engebretson & Co. v. Harrison (1981) 125 Cal.App.3d 436, 440 (quoting Thompson v. Cook (1942) 20 Cal.2d 564, 568). “Whenever a document is required to be served on a party, the service must be made on the party’s attorney if the party is represented.” Cal Rules of Court, Rule 1.21.

Defendants argue that either Defense counsel did not receive the FAC or otherwise was unable to file a responsive pleading. Mot. at p. 5. 26-27. Either there was no service, or there was an oversight on the part of Defense counsel. Id. at p. 6 2-3. Defendants’ motion is accompanied by an attorney affidavit of fault, and Plaintiff does not oppose the motion. Accordingly, Defendants’ motion is granted. See Cal Rules of Court, Rule 8.54 (“failure to oppose a motion may be deemed a consent to the granting of the motion.”).

 

CONCLUSION

Defendants’ Motion to Set Aside Default is granted. Defendants shall file and serve the Answer attached as Exhibit B to the motion  within 10 days.