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).
) · 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.
Sep 25, 2020
Los Angeles County, CA
Conclusion Defendant Jores Baghoomian’s Motion to Vacate Default Judgment is DENIED. Plaintiff to give notice. Defendant Jores Baghoomian’s Motion to Vacate Default Judgment is DENIED.
Sep 21, 2020
Los Angeles County, CA
Conclusion Defendant Jores Baghoomian’s Motion to Vacate Default Judgment is DENIED. Plaintiff to give notice.
Sep 21, 2020
Los Angeles County, CA
The Court having denied Defendant’s first and second Motions to Vacate Default Judgment, and the Appellate Division having affirmed the Court’s January 9, 2019 order denying the first Motion to Vacate Default Judgment, the Court finds Defendant’s third Motion to Vacate Default Judgment, etc. to be an improper motion for reconsideration of the first and second Motions to Vacate Default Judgment.
Sep 03, 2020
Los Angeles County, CA
Judgment Debtor/Defendant Kevin Gully's Motion to Vacate Default Judgment is taken off calendar for defective service. This is Defendant's second attempt to vacate the default judgment entered against him in October 2006. His first motion was taken off calendar on February 21, 2020, because he had untimely served the motion and had mailed it to the wrong address. The current motion was timely served. However, Defendant mailed the current motion to precisely the same wrong address for Plaintiff's counsel.
Sep 03, 2020
Collections
Collections
San Diego County, CA
MOTION TO SET ASIDE DEFAULT JUDGMENT (CCP §§ 473(b), 473.5) TENTATIVE RULING: Defendant Leonardo Orozco’s Motion to Vacate Default Judgment and Defendant Armado Sagrero’s Motion to Vacate Default Judgment are PLACED OFF CALENDAR. ANALYSIS: On September 25, 2017, Plaintiff California Casualty Indemnity Exchange (“Plaintiff”) filed the instant action for automobile subrogation against Defendants Amador Sagrero (“Defendant Sagrero”) and Leonardo Orozco (“Defendant Orozco”).
Sep 03, 2020
Los Angeles County, CA
MOTION TO VACATE DEFAULT JUDGMENT (CCP § 473(b)) TENTATIVE RULING: Defendant Shake Sharon Daghlian’s Motion to Vacate Default Judgment is GRANTED. DEFENDANT SHAKE SHARON DAGHLIAN IS TO FILE AND SERVE RESPONSIVE PLEADING WITHIN 20 DAYS’ SERVICE OF THIS ORDER. ANALYSIS: Plaintiff American Tires Distributors, Inc.
Sep 02, 2020
Los Angeles County, CA
MOTION TO VACATE DEFAULT JUDGMENT (CCP § 473(b)) TENTATIVE RULING: Defendant Shake Sharon Daghlian’s Motion to Vacate Default Judgment is GRANTED. DEFENDANT SHAKE SHARON DAGHLIAN IS TO FILE AND SERVE RESPONSIVE PLEADING WITHIN 20 DAYS’ SERVICE OF THIS ORDER. ANALYSIS: Plaintiff American Tires Distributors, Inc.
Sep 02, 2020
Los Angeles County, CA
The hearing on Defendant Nutt's motion to vacate default judgment is taken off calendar for defective service. No proof of service has been filed with Defendant's motion. Plaintiff has not opposed the 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.
Aug 27, 2020
Collections
Collections
San Diego County, CA
The hearing on Defendant Nutt's motion to vacate default judgment is taken off calendar for defective service. No proof of service has been filed with Defendant's motion. Plaintiff has not opposed the 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.
Aug 27, 2020
Collections
Collections
San Diego County, CA
Judicial Notice Defendants request that the Court take judicial notice of: (1) Notice of Motion, Motion to Set Aside/Vacate Default Judgment, Memorandum of Points & Authorities, and Declaration of John H. Thaler in Case Number 11E11652; (2) Exhibits N, F, and G to the Declaration of John H.
Aug 25, 2020
Los Angeles County, CA
Lee) Motion to Set Aside Default and Vacate Default Judgment, filed on 7-21-20 under ROA No. 101. The court finds that the default judgment is void due to improper service as discussed above., is GRANTED. Defendants are to give notice.
Aug 18, 2020
Orange County, CA
The opposition argues, and the reply concedes, that the Judgment upon which the moving papers rely, was not the final judgment in that matter, but that the Judgment relied upon was subsequently set aside by the court in the unlawful detainer matter on April 12, 2016, when the court granted an ex parte motion to vacate default judgment, with the matter ultimately being resolved through an order dismissing the case with prejudice on June 24, 2016.
Aug 14, 2020
Real Property
other
Los Angeles County, CA
On March 12, 2020, defendants filed a motion to set aside and/or vacate default judgment. On March 16, 2020, defendants filed a “first amended” version of their motion to set aside default judgment. The court notes as a preliminary matter that these documents are mislabeled given that no judgment has been entered against defendants, although their defaults were entered on August 5, 2019.
Aug 12, 2020
Personal Injury/ Tort
Fraud
Los Angeles County, CA
HEARING ON MOTION TO/FOR VACATE DEFAULT JUDGMENT FILED BY FIRST INVESTORS SERVICING CORPORATION, ATTO RN * TENTATIVE RULING: * Plaintiff moves to vacate a Default Judgment entered against the Defendant on March 9, 2020. Plaintiff alleges that the Defendant filed for bankruptcy on March 6, 2020 and that filing automatically stayed the proceedings in this case and precluded the entry of a default judgment. The motion to vacate the default judgment is granted and the case is reinstated.
Aug 10, 2020
Burch
Contra Costa 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.
Aug 05, 2020
Los Angeles County, CA
The opposition argues, and the reply concedes, that the Judgment upon which the moving papers rely, was not the final judgment in that matter, but that the Judgment relied upon was subsequently set aside by the court in the unlawful detainer matter on April 12, 2016, when the court granted an ex parte motion to vacate default judgment, with the matter ultimately being resolved through an order dismissing the case with prejudice on June 24, 2016.
Jul 31, 2020
Los Angeles County, CA
The opposition argues, and the reply concedes, that the Judgment upon which the moving papers rely, was not the final judgment in that matter, but that the Judgment relied upon was subsequently set aside by the court in the unlawful detainer matter on April 12, 2016, when the court granted an ex parte motion to vacate default judgment, with the matter ultimately being resolved through an order dismissing the case with prejudice on June 24, 2016.
Jul 31, 2020
Real Property
other
Los Angeles County, CA
Discussion Movant Joshua Singer moves to vacate default judgment on grounds that the New York Supreme Court, County of Westchester, which granted default judgment against him on August 16, 2017 in the action 2 Cooper Square LLC v. Joshua Singer (Index No. 67146/2016), had no jurisdiction over him, as he had not been served with summons in that action; and alternatively on grounds of excusable default. An opposition has not been filed.
Jul 29, 2020
Los Angeles County, CA
19STCV24891 BANK OF AMERICA vs ARMENUI SAMVELIAN Defendant Armenui Samvelian’s Unopposed Motion to Set Aside and Vacate Default Judgment TENTATIVE RULING: The motion is GRANTED. Defendant may file an answer within 20 days. The Court entered the default judgment because the Defendant failed to appear in this action; however, Defendant alleges she is a victim of identity theft and resides in Orange County.
Jul 23, 2020
Collections
Promisory Note
Los Angeles County, CA
FILED: 02-10-12 CASE NUMBER: LAM12K02327 DEFAULT: 07-20-12 NOTICE: OK DEFAULT JDMT: 07-24-12 PROCEEDINGS: MOTION TO VACATE DEFAULT JUDGMENT MOVING PARTY: Defendant Glenn D. Cunanan RESP. PARTY: None MOTION TO SET ASIDE/VACATE DEFAULT AN DEFAULT JUDGMENT (Equitable Relief) TENTATIVE RULING: Defendant Glenn D. Cunanan’s Motion to Vacate Default Judgment is GRANTED ON THE CONDITION that Defendant files a verified version of the proposed answer within ten (10) days of this order.
Jul 23, 2020
James E. Blancarte
Los Angeles County, CA
MOTION TO SET ASIDE/VACTE DEFAULT JUDGMENT (CCP §§ 473, 473.5) TENTATIVE RULING: Defendant Aaron Guerra’s Motion to Vacate Default Judgment is CONTINUED TO 0CTOBER 13, 2020 at 9:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendant must file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar or denied.
Jul 22, 2020
James E. Blancarte
Los Angeles County, CA
(1) Motion by CSAA for Leave to File Complaint in Intervention; (2) Motion by CSAA to Vacate Default Judgment of Defendant TSERING TENTATIVE RULING Parties are to appear via Zoom.
Jul 22, 2020
Solano County, CA
On 1/23/19 Defendant filed a motion to vacate default judgment based on lack of service, which was denied. Plaintiff asserts that there is no admissible evidence to support this motion; no proper declaration was submitted. Plaintiff objects to the evidence submitted in support of the motion on grounds of lack of personal knowledge; lack of authentication; lack of foundation; and hearsay.
Jul 21, 2020
Riverside County, CA
Motion to Set Aside/Vacate Default and Judgment The Motion by Defendant Loth Bounlatay (“Defendant”) to set aside/vacate default judgment is DENIED. The request by Plaintiff National Funding, Inc. (“Plaintiff”) for judicial notice of Exhibit A (a document filed in federal court) is granted. Evid. Code § 452(d). However, the Court takes judicial notice of the existence of the document and not the truth of the statements therein. Tenet Healthsystem Desert, Inc. v.
Jul 20, 2020
Orange County, CA
Please wait a moment while we load this page.
