The Code of Civil Procedure, section 473(b) provides the court with discretionary and mandatory authority to relieve a party from default.
The Code provides that “[t]he 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.... 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 (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or 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.” Code of Civ. Proc., § 473(b).
Under Code of Civil Procedure § 473(b), a motion to vacate a default under this discretionary section cannot be brought more than six months after the entry of default. Smith v. Pelton Water Wheel Co. (1907) 151 Cal. 394, 397, 90 P. 934; Schwartz v. Smookler (1962) 202 Cal.App.2d 76, 81, 20 Cal.Rptr. 507; Stevenson v. Turner (1979) 94 Cal.App.3d 315, 318; Weiss v. Blumencranc (1976) 61 Cal.App.3d 536, 541. “The six-month period runs from entry of default, not entry of judgment.” Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42 (citation omitted).
As to mandatory relief, section 473(b) provides that mandatory relief 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. This mandatory provision only applies to mistake, inadvertence, surprise or excusable neglect by counsel and not the party himself or herself. Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1248 (“We determine that where the parties to a lawsuit have contributed to a default or dismissal, they are not entitled to relief pursuant to subdivision (b) of section 473”). Further, unlike the discretionary relief whereby the six-month time frame begins to run at entry of default and not default judgment, the time frame under the mandatory prong of section 473(b) begins to run at the time of entry of default judgment. Sugasawara v. Newland (1994) 27 Cal.App.4t 294, 296-97.
If the Court “could not set aside the default, it also could not set aside the default judgment under Code of Civil Procedure section 473, because that would be ‘an idle act.’” Pulte Homes Corp. v. Williams Mech., Inc. (2016) 2 Cal.App.5th 267, 273.
If the party does not reply in time, Civil Code, section 473.5 may apply:
Code of Civ. Proc. §§ 473.5(a),(b).
Thus, the defendant must demonstrate that he lacked “actual notice” “in time to defend the action and a default or default judgment has been entered against him” in this action. (Id. § 473.5(a).)
Code of Civil Procedure, section 473(d) addresses court errors:
The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.
“It is not open to question that a court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts.” People v. Mitchell (2001) 26 Cal.4th 181, 185 (citations omitted).
HEARING ON MOTION TO SET ASIDE DEFAULT & VACATE DEFAULT JUDGMENT FILED BY CAPITAL ONE BANK (USA) * TENTATIVE RULING: * Plaintiff has filed a motion to vacate the default judgment entered against the Defendant on May 6, 2011. Plaintiff asserts that its inquiries into this case disclose that someone other than the named defendant against whom the default was taken unlawfully used the credit card in question.
Jul 13, 2020
Burch
Contra Costa County, CA
CASE NO: 19VECV00672 [TENTATIVE] ORDER RE: MGRDICHIAN’S MOTION TO SET ASIDE/VACATE DEFAULT JUDGMENT Dept. U 8:30 a.m. July 8, 2020 I.
Jul 08, 2020
Personal Injury/ Tort
Fraud
Los Angeles County, CA
Defendants' motion to vacate default judgment is Granted in part. CCP sections 473(d), 585(b). It appears Defendants' prior Counsel, David Johnston, represented Defendants in a number of bankruptcy matters as well as at least one other civil matter in two other courts prior to the entry of the instant default judgment. The only claim that prior Defense Counsel abandoned Defendants is in this instant action, which frankly doesn't make any sense.
Jul 06, 2020
San Joaquin County, CA
MOTION TO SET ASIDE/VACATE DEFAULT JUDGMENT (CCP § 473.5 ) TENTATIVE RULING: Defendant Victor Cirrincione’s Motion to Set Aside Default Judgment is DENIED.
Jun 29, 2020
James E. Blancarte
Los Angeles County, CA
Conclusion For the foregoing reasons, Defendant’s motion to quash service of the summons and complaint and to vacate default judgment is GRANTED. Defendant is order to give notice of the Court’s ruling.
Jun 25, 2020
Los Angeles County, CA
. §§ 473(d), 473.5) TENTATIVE RULING: Defendant Rodney Maez’s Motion to Vacate and Vacate Default Judgment is DENIED. ANALYSIS: Plaintiff Interinsurance Exchange of the Automobile Club (“Plaintiff”) filed the instant action against Defendant Rodney Maez (“Defendant Rodney”) and Ashley Diane Maez (“Defendant Ashley”) on July 20, 2017. The court entered default judgment against Defendants on August 9, 2018.
Jun 24, 2020
Los Angeles County, CA
.: BC592069 [TENTATIVE] ORDER RE: MOTION TO VACATE DEFAULT JUDGMENT Date: June 22, 2020 Time: 8:30 a.m. Dept. 56 MOVING PARTY: Plaintiff Interinsurance Exchange of the Automobile Club The Court has considered the moving papers. No opposition papers were filed, and no courtesy copies of any opposition papers were provided to the Court. BACKGROUND Plaintiff filed a complaint arising from an alleged automobile accident.
Jun 22, 2020
Personal Injury/ Tort
other
Los Angeles County, CA
HEARING ON MOTION TO SET ASIDE AND VACATE DEFAULT JUDGMENT FILED BY CAPITAL ONE BANK (U.S.A.), N.A. * TENTATIVE RULING: * The Plaintiff has moved to vacate and set aside a default judgment against the Defendant that was entered on May 4, 2012. Plaintiff confirms that its investigation discloses that the debt was incurred by a third party who committed fraud against the defendant by using the defendant’s credit card account. Under Rappleyea v.
Jun 15, 2020
Burch
Contra Costa County, CA
) · On 5/16/16, Defendant filed a motion to vacate default judgment, which the Court denied on 7/8/16. On 12/12/18, Defendant filed a second motion to vacate default judgment, which the Court denied on 2/8/19. Defendant filed a Notice of Appeal on this order (“Appeal No. 3”). (Pl.’s RJN, Ex. 2.) · On 5/22/19, Plaintiff filed a motion to dismiss Defendant’s appeal as to Appeal Nos. 1-3.
Mar 13, 2020
Los Angeles County, CA
Conclusion & Order For the foregoing reasons, Defendant Michilene Hooks’ Motion to Vacate Default Judgment is DENIED. Moving party is ordered to give notice.
Mar 11, 2020
James E. Blancarte
Los Angeles County, CA
s and "Interested Party" Servando Ferreira's Motion to Vacate Default Judgment The court denies Defendant Taqueria El Tapato #3, Inc.'s ("Taqueria") request for an order vacating the default judgment entered in favor of Plaintiff Estela Espinoza and against Defendant Taqueria on September 6, 2017.
Mar 09, 2020
Ventura County, CA
Defendant filed the instant motion to vacate default judgment on October 19, 2018. On November 19, 2018, the Court ruled that the motion was untimely because it was filed more than six months after entry of default. Following Plaintiff’s appeal, the Appellate Division issued a remittitur reversing the Court’s November 19, 2018 ruling and ordering the Court to reconsider whether Defendant is entitled to relief from default and default judgment.
Feb 27, 2020
Los Angeles County, CA
Based on the foregoing lack of proper notice, the hearing on Defendant’s Motion to Vacate and Vacate Default Judgment is CONTINUED TO APRIL 21, 2020 AT 10:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. OPPOSITION AND REPLY PAPERS, IF ANY, ARE TO BE FILED AND SERVED IN ACCORDANCE WITH THE CODE OF CIVIL PROCEDURE SECTION. Court clerk to give notice.
Feb 26, 2020
Los Angeles County, CA
Defendant Leonardo Orozco’s Motion to Vacate Default Judgment is DENIED.
Feb 20, 2020
Los Angeles County, CA
Defendant Kelvin Gully's motion to vacate default judgment is taken off calendar for defective service. The motion was not timely served and was mailed to the wrong address. Plaintiff has not opposed this motion. Therefore, objections to defects in service have not been waived. IT IS SO ORDERED. This ruling is the order of the Court, filed as of this date. No formal order is required.
Feb 19, 2020
Collections
Collections
San Diego County, CA
MOTION OF PLAINTIFF SHERRY SEITZINGER (PRO PER) TO VACATE DEFAULT JUDGMENT ON THE PLEADINGS BASED ON DISCRETIONARY OR, IN THE ALTERNATIVE, MANDATORY RELIEF PROVISIONS OF CCP 473 NO TENTATIVE RULING There are no moving papers available in the court’s file. The parties are to appear and bring copies of papers pertaining to this motion. The Court will also take the opportunity to conduct a Case Management Conference. ___________________________ _____________________________________________ DATED: HON.
Jan 30, 2020
Presiding
Santa Clara County, CA
MOTION OF PLAINTIFF SHERRY SEITZINGER (PRO PER) TO VACATE DEFAULT JUDGMENT ON THE PLEADINGS BASED ON DISCRETIONARY OR, IN THE ALTERNATIVE, MANDATORY RELIEF PROVISIONS OF CCP 473 NO TENTATIVE RULING There are no moving papers available in the court’s file. The parties are to appear and bring copies of papers pertaining to this motion. The Court will also take the opportunity to conduct a Case Management Conference. ___________________________ _____________________________________________ DATED: HON.
Jan 30, 2020
Santa Clara County, CA
(Plaintiff’s Opposition to Defendants’ Motion to Vacate Default Judgment; 4:20-21.) Plaintiff relies on the declaration of Briana Lara. The declaration of Briana Lara confirms that Plaintiff served Defendant South Coast Car Company, Inc. through the Secretary of State. The declaration of Briana Lara does not establish that Defendants’ lack of notice was due to avoidance of service of process or inexcusable neglect. Watts v.
Jan 28, 2020
Orange County, CA
Cunanan’s Motion to Vacate Default Judgment is CONTINUED to APRIL 9, 2020 at 10:30 a.m. in Department 25. At least 16 court days prior to the new hearing date, Defendant must file and serve supplemental papers addressing the defects in his motion as discussed herein. Failure to comply with the Court’s orders may result in the motion being placed off calendar or denied. ANALYSIS: I.
Jan 27, 2020
James E. Blancarte
Los Angeles County, CA
Plaintiff’s Motion to Set Aside and Vacate Default Judgment and Dismiss with Prejudice. The proof of service filed on June 19, 2009 declares that defendant was personally served the summons and complaint by a registered process server at his home on May 27, 2009. Default was entered on November 5, 2009. A default judgment was entered against defendant in the amount of $2,800.30 on December 24, 2009. The judgment was renewed on November 12, 2019.
Jan 24, 2020
El Dorado County, CA
.: VC067335 HEARING: 1/21/20 JUDGE: OLIVIA ROSALES #11 TENTATIVE ORDER Defendant Ammari’s motion to set aside entry of default and to vacate default judgment is DENIED. Plaintiffs to give NOTICE. Defendant Ammari moves to set aside default pursuant to CCP § 473.
Jan 21, 2020
Los Angeles County, CA
MOTION TO VACATE DEFAULT JUDGMENT (CCP § 473(d)) TENTATIVE RULING: Defendant Michilene Hooks’ Motion to Vacate Default Judgment is CONTINUED to MARCH 11, 2020 at 10:30 a.m. in Department 94. Background On December 29, 2000, Plaintiff Ford Motor Credit Company (“Plaintiff”) filed an action for breach of contract against Defendant Michilene S. Hooks (“Defendant”). On April 17, 2001, default was entered against Defendant. On April 19, 2001, default judgment was entered against Defendant.
Jan 14, 2020
James E. Blancarte or Serena R. Murillo
Los Angeles County, CA
On November 18, 2019, Defendant made a second filing titled “Motion, Notice, Demand, Petition, Application to Set-Aside/Vacate Default-Judgment [etc.]” On January 2, 2020, Plaintiff filed an opposition. No reply was submitted. Legal Standard Relief under section 473(b) is either discretionary or mandatory. Where a party cannot obtain an attorney affidavit of fault, the party may seek discretionary relief under section 473(b) due to “mistake, inadvertence, surprise, or excusable neglect.” (CCP § 473(b).)
Jan 10, 2020
Personal Injury/ Tort
Fraud
Los Angeles County, CA
BIRLA, RAMESH KUMAR – Defendant Ramesh Kumar Birla’s Motion to Vacate Default and Vacate Default Judgment – DENIED. Code of Civil Procedure section 473, subsection (b), provides, in pertinent part: “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.” Defendant Birla failed to provide a draft of his answer or other response to the Complaint with his motion.
Jan 10, 2020
Stanislaus County, CA
BERNAL #7 TENTATIVE ORDER Plaintiff’s unopposed Motion to Vacate Default Judgment against Defendant YANGKYU KANG is GRANTED. This action is dismissed without prejudice as to Defendant YANGKYU KANG. CCP § 473(d). Moving Party to give notice. No Opposition filed as of December 20, 2019. Plaintiff argues that a default judgment was inadvertently obtained against Defendant KANG on November 19, 2018. Plaintiff was apparently unaware that KANG had filed for Chapter 7 bankruptcy on November 16, 2018.
Dec 26, 2019
Collections
Promisory Note
Los Angeles County, CA
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