Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This is a collections case.  Plaintiff Bank of America N.A. filed a complaint against Defendant Christie N. Alkana to collect on a credit card debt.  Plaintiff served Defendant, and when no response was made, the Court entered default judgment on February 17, 2023. 

This hearing is on Plaintiff’s motion to set aside the default judgment.  Plaintiff represents it recently learned Defendant was not a resident of the State of California and was not properly served.  Plaintiff asks the Court to vacate the default judgment due to Plaintiff’s counsel’s mistake, inadvertence and error.   

LEGAL STANDARD 

Code of Civil Procedure section 473, subdivision (b)¿provides, in relevant part: 

“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.” (Code Civ. Proc., § 473, subd. (b).) 

The court has broad discretion to vacate the entry of default, default judgment, a dismissal, or other proceeding, but that discretion can be exercised only if the moving party establishes a proper ground for relief, by the proper procedure and within the set time limits. Pursuant to¿Code of Civil Procedure section 473(b), a motion to vacate cannot be brought more than six months after the proceeding was taken and must be made within a “reasonable time.”   

Code of Civil Procedure section 473, subdivision (b)¿allows a court to vacate a prior order upon a showing that the order was entered due to a party's mistake, inadvertence, surprise, or excusable neglect.  The terms mistake, inadvertence, surprise, and excusable neglect which warrant relief under¿Code of Civil Procedure section 473, subdivision (b)¿are defined as follows: 

Mistake may be one of¿fact or law.  Mistake of¿fact occurs when a person understands the¿facts to be other than they are; a mistake of¿law occurs when a person knows the¿facts as they really are, but has a¿mistaken belief as to¿the legal consequences of those¿facts.  (People v. Kelly (1939) 35 Cal.App.2d 571, 574.)  “Mistake is not a ground for relief under¿section 473, subdivision (b), when the court finds that the ‘mistake’ is simply the result¿of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law”.  (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 229-230.)   

Further, the term “surprise,” as used in¿section 473, refers to “some condition or situation in which a party … is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.”  (Id. at 229-230.)   

Finally, as for inadvertence or neglect, “[t]o warrant relief under¿section 473¿a litigant’s neglect must have been such as might have been the act of a reasonably prudent person under the same circumstances.”  (Henderson, 187 Cal.App.4th at 229-230.)  A lawyer’s failure to discharge routine professional duties is not excusable.  “Conduct falling below the professional standard of care, such as the failure to timely object or to properly advance an argument is not therefore excusable.”  (Generale Bank Nederland N.V. v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1400.)   

Where the mistake, inadvertence, surprise or neglect is excusable “and the party seeking relief has been diligent, courts have often granted relief pursuant to the discretionary relief provision of¿section 473¿if no prejudice to the opposing party will ensue.” (Id.)  In such situations only “very slight evidence will be required to justify a court in setting aside the default.”  (Miller v. City of Hermosa Beach (1993) 13 Cal.App.4th 1118, 1136.)   

Moreover, because the law strongly favors trial and disposition on¿the merits, “any doubts in applying [Code of Civil Procedure] section 473¿must be resolved in favor of the party seeking relief from default. Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits.” (McCormick¿v.¿Board of Supervisors, 198 Cal.App.3d at 359-360 citing,¿Elston¿v.¿City of Turlock¿(1985) 38 Cal.3d 227, 233.) 

DISCUSSION 

Plaintiff seeks discretionary relief under Code Civ. Proc. § 437, subdivision (b).   

Plaintiff claims mistake in believing that it properly served Defendant.  But a motion under § 437(b) may only be made six months after judgment was entered.  Here, judgment was entered on February 17, 2023.   

Notwithstanding, the Court concludes that because there was no proper service, the default judgment is void, and under § 437, subdivision (d), a void judgment may be attacked at any time.  (Falahati v. Kondo (2005) 127 Cal.App.4th 823, 830 (“[a] void judgment can be attacked at any time by a motion under Code of Civil Procedure section 473, subdivision (d) …”); Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444 (a judgment may be void due to improper service of summons).)    

CONCLUSION 

Based on the foregoing, the Court GRANTS Plaintiff Bank of America N.A.’s motion to vacate default.     

 

IT IS SO ORDERED. 

 

DATED:  May 3, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court