SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

On November 6, 2018, plaintiff Brian Miller (“Plaintiff”) filed this action against defendants Tina Nails Salon, Danielle Trin as an individual and dba Tina Nails Salon, Xuan Thao Duy Nguyen as an individual and dba Tina Nails Salon, Hy That Ton as an individual and dba Tina Nails Salon, and Does 1 to 50 for injuries arising from a pedicure.    

On November 6, 2018, Plaintiff filed amendments to complaint, naming Tom Cong Tran as Doe 1, Daniel Tran as Doe 2, and Dinh Tran as Doe 3.  

Plaintiff obtained defendants Tom Cong Tran and Dinh Tran’s defaults on February 3, 2021, and Daniel Tran’s default on March 24, 2021. Thereafter, default judgment was entered against defendants Tom Cong Tran, Daniel Tran, Dinh Tran, jointly and severally, on March 24, 2023.  

On May 9, 2023, defendants Tom Cong Tran and Daniel Tran (formerly known as Dinh Tran) (collectively, “Defendants”), filed the instant motion to set aside the default and default judgment against them.  

Plaintiff opposes the motion, and Defendants filed a reply. 

 

II. Motion to Set Aside Default and Default Judgment  

CCP § 473(b) states: 

 

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 made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. … Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any … dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.  

 

Under the mandatory relief provision, judges must vacate dismissals, default entries, and default judgments “whenever (1) an application is made no more than six months after entry of judgment, (2) the application is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, and (3) the attorney's mistake, inadvertence, surprise or neglect in fact caused the dismissal or entry of default.” (Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 927 (citing CCP §473(b)).)  

Plaintiff argues the motion is untimely. However, the six-month limitation period for mandatory relief commences at the time the default judgment is entered, rather than the earlier date the default is entered.  (Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 296-97 [“it makes little sense to vacate a judgment without also vacating an underlying default....”].) Default judgment was entered on March 24, 2023, and the instant motion was filed on May 9, 2023. Therefore, under the mandatory provision of CCP § 473(b), the motion is timely.  

Plaintiff cites to State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610, arguing relief under section 473 is not available due to inexcusable neglect, and that defense counsel’s actions constitute willful malfeasance. The Court is unable to locate the specific quote cited by Plaintiff in the case. Further, the Court notes that State Farm Fire & Casualty Co. referenced by Plaintiff at page 610 pertains to discretionary relief. Defendants are moving under the attorney-fault mandatory relief provision. Pursuant to the attorney-fault provision of CCP § 473(b), the mistake or inadvertence need not be excusable. (Leader v. Health Indus. of America, Inc. (2001) 89 Cal.App.4th 603, 616 [“The range of attorney conduct for which relief can be granted in the mandatory provision is broader than that in the discretionary provision, and includes inexcusable neglect”.].)   

Defense counsel’s affidavit provides that she failed to notice Plaintiff had filed amendments to complaint substituting Defendants into the action as Doe defendants. Defense counsel avers it was her mistaken belief that Defendants had not been properly Doe’d into the action nor were properly served with the amendments to complaint based on the proofs of service filed. Because of this mistaken belief, defense counsel declares she took no action to challenge service or file a responsive pleading, which resulted in the defaults and default judgment against Defendants.  

Here, defense counsel’s straightforward admission of fault is sufficient to set aside the dismissal. (State Farm Fire & Casualty Co., supra, at 609-610 [In order to qualify for mandatory relief, an affidavit from an attorney must be a straightforward admission of fault.].) Further, pursuant to the policy favoring deposing of cases of their merits, these facts warrant setting aside the default entered against Defendants.  (Taliaferro v. Taliaferro (1963) 217 Cal.App.2d 216, 220.) 

 

Based on the foregoing, motion to vacate default and default judgment filed by defendants Tom Cong Tran (Doe 1) and Daniel Tran f.k.a. Dinh Tran (Does 2 and 3) is GRANTED.  Tte (1) February 3, 2021 default obtained against Tom Cong Tran and Dinh Tran, (2) March 24, 2021 default obtained against Daniel Tran, and (3) default judgment entered against Tom Cong Tran, Daniel Tran, and Dinh Tran are set aside.