On August 9, 2019, plaintiff Cheynese Douglas (“Plaintiff”) filed this action against defendants Adrian Hernandez and American Tex-Chem Corporation (collectively, “Defendants”) arising out of injuries Plaintiff sustained as a passenger in an August 14, 2017 motor vehicle accident with Defendants.  On November 26, 2019, Plaintiff filed the operative First Amended Complaint. (“FAC”). 

On April 21, 2021, default was entered against Defendants.  On November 11, 2021, Defendants filed an Answer to the FAC. 

On October 14, 2022, the Court rejected the parties signed Stipulation to Continue Trial Date and Extending Discovery Cut-off Deadlines Based Upon New Trial Date because Defendants were in default. 

On November 2, 2022, the Court denied Defendants’ Ex Parte Application to Set Aside Default, or in the Alternative, Shorten Time to Hear A Motion to Set Aside. 

  Defendants now move to set aside the default on grounds that the default was taken due to Defendants’ counsel’s mistake.   

Is it not clear whether Plaintiff has filed an opposition to this motion.  Defendants’ reply treats Plaintiff’s Opposition to Defendants’ Ex Parte Application to Set Aside Default Judgment of Both Defendants as if it were an opposition to this motion as well.  Accordingly, the Court considers Plaintiff’s Opposition to Defendants’ Ex Parte Application in deciding this motion.    

The court has broad discretion to vacate the entry of default, default judgment, or a dismissal where the moving party timely establishes a proper ground for relief.¿ (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.)¿ Code of Civil Procedure, section 473, subdivision (b) contains two distinct provisions for relief from default: a discretionary provision and a mandatory provision.¿ (Code Civ. Proc., § 473, subd. (b).)  Under the discretionary provision, 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.¿ (Id.) 

Defendants’ motion was filed more than six months after entry of default.  Application for relief under Code of Civil Procedure, section 473, subdivision (b), shall be made in no case exceeding six months.  (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 (section 473 is unavailable when more than six months have elapsed from entry of default).)  Thus, the Court may not grant Defendants relief from default under section 473, subdivision (b).  

However, after six months from entry of default, a trial court may still vacate a default on equitable grounds even if statutory relief is unavailable.  (Olivera v. Grace (1942) 19 Cal.2d 570, 575-576.)  Equitable grounds include instances “where the defendant in the action, having a valid legal defense on the merits, was prevented in any manner from maintaining it by fraud, mistake, or accident, and there had been no negligence, laches, or other fault on his part, or on the part of his agents.”  (Olivera, 19 Cal.2d at p. 575.) 

In her declaration, Defendants’ counsel states that she learned on November 12, 2021 that a default hearing was set on the Court’s calendar.  Counsel promptly contacted Plaintiff’s counsel and requested that she take the hearing off calendar and allow Defendants to answer the complaint.  Implicit in that agreement was that Plaintiff’s counsel would set aside default.  (Volk Decl., ¶¶  2-4.)   

In opposition, Plaintiff argues it is unreasonable for Defendants’ counsel to allege having relied upon Plaintiff’s counsel to set aside the default as no such promise can be implied.  (Plaintiff’s Opposition to Defendants’ Ex Parte Application, 5:18-20.)    

The Court agrees defense counsel should not have relied upon Plaintiff’s counsel to set aside the default.  To set aside an entry of default, the defendant must file a stipulation signed by both parties or by noticed motion.  (See Code Civ. Proc., §§ 473, subd. (b); 473.5.)  However, Defendants’ counsel’s belief demonstrates that the default was entered against Defendants through the mistake of Defendants’ counsel.  There is no evidence the default was entered because of Defendants’ negligence or other faulty conduct.   

Accordingly, Defendants’ Motion is GRANTED.  Default entered on April 21, 2021 

against Defendants is vacated.  Defendants’ Answer is deemed filed as of November 11, 2021. 

Moving party to give notice.