2013-00151217-CL-CL

California High Reach vs. Preferred Painting

Nature of Proceeding: Motion to Set Aside

Filed By: Hohenstein, Michael

Self-represented Defendant Michael Hohenstein’s motion to set aside default entered
against Preferred Painting is granted.

Defendant moves to set aside the default entered in this matter on the basis that
Preferred Painting is not a separate entity but rather a fictitious entity under which he
does business. Plaintiff California High Reach named Defendant and “Preferred
Painting, A Sole Ownership” as defendants. Defendant filed a general denial on
November 12, 2013. (General Denial filed 11/12/13, ROA #8.) The Court notes that
the caption of the General Denial specifically states “DBA Preferred Painting.” (Id.)
Defendant states that he mistakenly believed that his answer covered his fictitious
business name as well as himself. Preferred Painting’s default was taken on January
15, 2014.

Defendant seeks to set aside the default on the grounds of “inadvertence, surprise, or
reasonable neglect.” (Not. 1:23.) Defendant bases his motion on CCP § 473(b). Here
the Court finds Defendant’s showing is sufficient. Defendant declares that he has
never been sued before and reasonably believed that the general denial he filed
covered his fictitious business name since the complaint identified Preferred Painting
as a “Sole Ownership” and himself as “Owner.” (Def.’s Decl. ¶ 4.) When Plaintiff’s
counsel informed him that his DBA had not answered, Defendant promptly sought to
file an answer on behalf of his DBA prior to the time his default was taken. (Id. ¶ 5.)
Defendant did not received notification that the clerk rejected the answer for, among
other things, not having a case number and proof of service, until after Preferred
Painting’s default was entered. (Id. ¶¶ 5-7.) Plaintiff’s argument that Defendant was
not reasonable in simply ignoring a named defendant in the complaint notwithstanding,
the Court finds that Defendant’s showing is sufficient. Defendant was both reasonable
in his belief that a general denial would cover himself and his DBA and diligent in
seeking the instant relief. In fact, “[u]se of a fictitious business name does not create a
separate legal entity…The business name is a fiction, and so too is any implication
that the business is a legal entity separate from its owner.” (Pinkerton’s, Inc. v.
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Superior Court (1996) 49 Cal.App.4 1342, 1348 [citations omitted].) Indeed, where
the party appears in its true name in an action, entry of default against the party under
a fictitious business name is improper and has no legal effect. (Id. at 1349.) As a
result, Defendant’s motion to set aside the default entered against his DBA Preferred
Painting is granted.

Further, Defendant’s request that his general denial was effective as to him and his
DBA and that he should not be required to enter a separate appearance for the DBA is
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granted. (Pinkerton’s, Inc., supra, 49 Cal.App.4 at 1349 [“trial court incorrectly
concluded two separate appearances had to be made, one by the corporation in its
true legal name and one by the corporation under its fictitious name”].) Defendant
need not enter a separate appearance for the DBA.

As a result, the motion is granted and the default entered against Preferred Painting on
January 15, 2014 is set aside.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.