SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

On January 7, 2019, Plaintiff Jocelyn Sherry (“Plaintiff”) filed this action against Defendant RSSN, Inc. dba Sage Restaurant and Lounge (“Defendant”) for damages arising from a slip and fall.  

Default was obtained on March 7, 2023, and default judgment entered on September 8, 2023 

On September 1, 2023, Defendant filed its Answer to Plaintiff’s complaint.  

Defendant argues it explained how the mistake occurred regarding the agent for service of process, and that it hired Hatch to perform a one-time service of establishing the corporation. Defendant only became aware of the error regarding the agent for service of process in August 2023 when it received notice of Plaintiff’s complaint, and promptly remedied the issue. Defendant contends it has presented a reasonable excuse for its lack of actual notice, and that it is ready to proceed on this action on the merits. 

  

II. Legal Standard 

The Court may set aside any void judgment or order at any time. (Code Civ. Proc., § 473, subd. (d); Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249.)¿¿Code of Civil Procedure section 473.5, subdivision (a) provides, “When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.”  (Code Civ. Proc., § 473.5, subd. (a).)    

“After six months from default, a trial court may still vacate a default on equitable ground even if statutory relief is unavailable.”¿ (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.)¿ A party may obtain equitable relief from an entry of dismissal based on an extrinsic mistake when the moving party: (1) has a meritorious case, (2) articulates a satisfactory excuse for not presenting a defense to the original action, and (3) demonstrates diligence in seeking to set aside the dismissal once discovered.¿ (Id. at p. 982.) However, there is no longer any requirement of showing a meritorious defense as to a statutory motion to set aside default.  (Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1144.) 

Here, Defendant avers that it had no knowledge that Hatch was its agent for service of process. In support thereof, Defendant submits the declaration of its owner and operator, Leon Boulos (“Boulos”). Boulos declares he purchased the real property located at 6511 Greenleaf Ave., Whitter, California 90601, and during the purchase, he paid Hatch to complete paperwork to establish the corporation.  Boulos declares he had no knowledge that Hatch had assigned himself as the agent for service of process for the corporation, and that Boulos has had no interaction with Hatch since. Boulos further declares that the first time he received a copy of Plaintiff’s lawsuit was on or about August 8, 2023, when employee Albert Thella gave him a packet of documents retrieved from the mailbox, which included the summons and complaint. Boulos then informed his insurance company about the lawsuit, and counsel was retained on his behalf. 

Although mandatory relief is no longer available because it is more than six months from after entry of default, Defendant moves on equitable grounds, which is not subject to the same strict timing requirement. (Luxury Asset Lending, LLC v. Philadelphia Television Network, Inc. (2020) 56 Cal. App. 5th 894, 910 [A trial court may vacate a default on equitable grounds even if statutory relief is unavailable.].) The moving party carries the burden of proving that he or she is entitled to equitable relief. (Ibid.) Section 473 concerning relief from judgment or order taken by mistake, etc., should be liberally construed. (Goodson v. Bogerts, Inc. (1967) 252 Cal. App. 2d 32, 38.)  

The Court finds that Defendant has articulated a satisfactory excuse regarding lack of notice, and that the filing of the Answer evinces Defendant’s intent to participate in litigation. “[I]t is not every mistake that will excuse a default, the determining factor being the reasonableness of the misconception.” (Shank v. County of L.A. (1983) 139 Cal.App.3d 152, 157.) Further, the motion was served and filed within a reasonable time, within 7 months after entry of default. Plaintiff’s contention that she will be severely prejudiced because of the efforts expended in obtaining default and default judgment is unavailing, especially as public policy favors disposing cases on the merits. These facts warrant setting aside the default entered against Defendant.  (Taliaferro v. Taliaferro (1963) 217 Cal.App.2d 216, 220 [“It is the policy of the law that every case should be heard upon the merits where possible; that a motion to set aside a default is one addressed to the sound discretion of the court; that the ruling on such motion will not be reversed in the absence of a clear showing of abuse of discretion; that section 473 is a remedial provision to be liberally construed to the end that cases be disposed of upon their merits.”].)   

 

The motion is therefore GRANTED.  The March 7, 2023 default and September 8, 2023 default judgment obtained against RSSN, Inc. dba Sage Restaurant and Lounge¿are set aside.  

 

Additionally, in terms of the Answer already filed, the Court notes that entry of default cuts off a party’s right to appear in the action, including by filing pleadings, until default is set aside. (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385-86.) Because the filing of the Answer prior to default being set aside was improper, the Answer filed on September 1, 2023 is hereby STRICKEN. Defendant is ordered to re-file its Answer within ten (10) days of this Order. Considering the age of this case, the parties must move expeditiously in litigating this action.   

 

Moving party is ordered to give notice. 

 

 

Dated this 18th day of January 2024