On August 24, 2021, plaintiff Tae Kang filed this action against defendant Pacific Bell Telephone Company (“Defendant”) for general negligence and premises liability arising from injuries sustained from a fall on August 29, 2019.  Default was entered on February 18, 2022 and Defendant filed an answer on March 4, 2022.  Defendant moves to set aside the default on grounds that the default was taken due to Defense counsel’s mistake, inadvertence, and surprise.  The motion is unopposed.    

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.) 

Defendant concedes this motion was filed more than six months after entry of default.  (Motion, at p. 4:2-3.)  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).)  Defendant does not cite authority to the contrary.  

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.) 

Here, Defendant shows default was entered against it through the mistake or accident of Defendant’s counsel.  There is no evidence that default was entered because of Defendant’s negligence or other faulty conduct.