2015-00174325-CU-BC

Yao Lin Zhang vs. Zhongyi Li

Nature of Proceeding: Motion to Set Aside Default and Default Judgment

Filed By: Ng, Ned

Plaintiff Yao Lin Zhang’s motion to set aside default judgment is unopposed but is denied without prejudice.

Plaintiff filed the operative Complaint Court on January 23, 2015. On December 6, 2016, this Court granted Plaintiff’s motion for service by publication against Defendant. Plaintiff completed service of summons and complaint by publication in English and Chinese in three different newspapers. To date, Defendant has failed to respond to the Complaint.

On December 4, 2017, Plaintiff filed a Request for Entry of Default. Plaintiff’s counsel, who prepared the Request, inadvertently stated the judgment amount to be entered as $0.00, rather than requesting a hearing under Code of Civil Procedure section 585(c). Default was entered against Defendant on December 4, 2017. Plaintiff’s counsel now seeks to remedy the error, and set aside the default.

Code of Civil Procedure section 473(b) provides that “[t]he court may, upon any terms as may be just, relieve a party … from a judgment, dismissal, order or other proceeding … taken against him or her through his or her mistake inadvertence, surprise, or excusable neglect.” Subparagraph (b) also provides that application for relief from default must 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.”

Here, the Court believes that Plaintiff’s arguments regarding counsel’s mistake in checking the incorrect box and identifying the judgment as $0.00 were indeed inadvertent and a mistake as contemplated by the language of section 473(b). Unfortunately, Plaintiff has not attached a copy of a proposed amended Request for Entry of Default to be filed in this case, as required by § 473(b). The explicit language of the statute makes clear that the Court cannot grant the application in the absence of the pleading proposed to be filed. Accordingly, the motion is deniedwithout prejudice to Defendant refilling the motion with the proposed pleading attached.

Defendant is reminded that any such renewed motion must, pursuant to § 473, be filed within six months from the time default was entered. Here, default was entered on December 4, 2017. Accordingly, any renewed motion for relief from entry of default must be filed and served no later than June 4, 2018.