Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Defendant Shlomo Meiri 

 

RESPONDING PARTY: Plaintiff Bank of America N.A.  

 

 

BACKGROUND 

 

Plaintiff Bank of America N.A. issued a credit card account to Defendant Shlomo Meiri.  Plaintiff alleges Defendant defaulted on the account.  The Complaint alleges common counts for an open book account and account stated.   

Plaintiff served Defendant with the Complaint by substitute service.  Plaintiff’s process server left a copy of the complaint at Defendant’s residence and mailed a copy to the same address.  Defendant did not respond to the Complaint. 

Plaintiff requested entry of default which was entered by the Clerk of the Court on October 15, 2021.  Default judgment was then entered on June 1, 2022.  Both the request for entry of default and request for default judgment were mailed to Defendant.   

This hearing is on Defendant’s motion to set aside entry of default and default judgment.  Defendant argues he never received a copy of the complaint and only learned of the action after he received notice of the default judgment in July 2022.       

LEGAL STANDARD 

Code Civ. Proc. §473, subd. (b)¿provides for two distinct types of relief from a default -- commonly differentiated as “discretionary” and “mandatory.”  “Under the¿discretionary relief provision, on a showing of ‘mistake, inadvertence, surprise, or¿excusable neglect,” the court has discretion to allow relief from default.  Under the mandatory relief provision, on the other hand, upon a showing by attorney declaration of ‘mistake, inadvertence, surprise, or neglect,’ the court must vacate any ‘resulting default judgment or dismissal entered.’”  (Leader v. Health Industries of America, Inc.¿(2001) 89 Cal.App.4th 603, 615-616.)¿  

Applications seeking relief under the mandatory provision of¿§473¿must be “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc. §473, subd. (b).)  The mandatory provision further adds that “whenever relief is granted based on an attorney’s affidavit of fault [the court shall] direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” (Id.)   

The application for relief must be made no more than six months after the judgment, dismissal, order, or proceeding was taken.  (Id.)  And the application must be “accompanied by a copy of the answer or other pleading proposed to be filed therein”.  (Id.) 

“It is settled that the law favors a trial on the¿merits. . . and therefore liberally construes¿section¿473.”  (Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1477.)  “Doubts in applying¿section 473 are resolved in favor of the party seeking¿relief from¿default. . . and if that party has moved promptly for¿default relief,¿only slight evidence will justify an order granting such¿relief.”  (Id. at 1477-78.) 

DISCUSSION 

Defendant’s motions to set aside default and default judgment is timely.  The motion was filed on November 1, 2022, within six months after default judgment was entered on June 1, 2022.  However, the motion is not accompanied by a copy of the proposed answer to the complaint.  Accordingly, the motion is not procedurally proper, and the Court denies the motion without prejudice.    

CONCLUSION 

For the foregoing reasons, the Court DENIES without prejudice Defendant Shlomo Meiri’s motion to set aside default and default judgment.   

DATED:  March 22, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court