SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

On July 27, 2021, Plaintiffs Jennifer Noriega and Larry Noriega (“Plaintiffs”) filed this action against Defendants Eduar's Construction and 314 Rowland, LLC (“Defendants”) for damages arising from a slip and fall.  

On April 13, 2022, Plaintiff obtained Defendants’ default.  

On April 18, 2022, Defendants’ filed their Answer to Plaintiff’s complaint.  

None filed. 

  

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, Defendants filed their Answer five days after default. 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.) “A defendant against whom a default has been entered is out of court and is not entitled to take any further steps in the cause affecting plaintiff's right of action; he cannot thereafter, until such default is set aside in a proper proceeding, file pleadings or move for a new trial or demand notice of subsequent proceedings.” (Brooks v. Nelson (1928) 95 Cal.App. 144, 147–148.)  Although Plaintiff is correct that mandatory relief is no longer available because it is more than six months from after entry of default, Defendants are moving on equitable grounds, which is not subject to the same strict timing requirement. A trial court may vacate a default on equitable grounds even if statutory relief is unavailable. (Luxury Asset Lending, LLC v. Philadelphia Television Network, Inc. (2020) 56 Cal. App. 5th 894, 910.) 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 Defendants have articulated a satisfactory excuse for not bringing the motion to set aside sooner, and that the filing of the Answer at the time evinces Defendants’ 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.) Considering defense counsel’s participation in this matter, such as opposing Plaintiff’s ex parte to continue trial and defense counsel’s appearance at the ex parte, the Court finds defense counsel’s misconception that the filing of the Answer was proper as reasonable. In terms of diligence, Defendants’ moving papers are vague in this aspect. Nonetheless, 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 [“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 April 18, 2022 default obtained against Defendants is set aside. Because the filing of the Answer after default was improper, the Answer filed on April 18, 2022 is hereby stricken. Defendants are ordered to re-file its Answer within ten (10) days of this order.  

 

Defendants are ordered to give notice.