Case Number: 12K14013    Hearing Date: August 11, 2014    Dept: 77

Defendant Marcos Santillan’s Motion to Vacate Default is GRANTED. CCP § 473(b).

Defendant’s Answer and Cross-Complaint filed on December 31, 2013 are hereby stricken. CCP § 128. These pleadings were accepted in error as Defendant’s default had been previously entered on December 9, 2013. Entry of Defendant’s default instantaneously cuts off his right to appear in the action. The Defendant is ‘out of court.’ Defendant has no right to participate in the proceedings until either (a) the default is set aside (in which event, he may respond to the complaint), or (b) a default judgment is entered (in which event, he may appeal). Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 CA3d 381, 385-86.

This motion, however, is granted. Defendant has established a proper ground for relief, by the proper procedure and within the set time limits per CCP § 473(b). Furthermore, this motion is timely and plaintiff will not be prejudiced by the motion being granted. In addition, California courts favor a trial on the merits. Based on the foregoing, this motion is granted. Defendant to file his answer and cross-complaint within 20 days.

Moving party to give notice.

Defendant Nicandro Solis’ Motion to Vacate Default Judgment is DENIED. CCP § 473(b).

No judgment has been entered and defendant’s default was entered on December 13, 2012. This motion has been brought solely per CCP § 473(b). However, this motion was filed on February 6, 2014, well beyond the six month limitation of CCP § 473(b). As such, this court does not have jurisdiction to vacate the default. Accordingly, this motion is denied.

Plaintiff’s Request for Sanctions per CCP § 128.5 is DENIED. Plaintiff’s reliance on CCP 128.5 is misplaced. That statute, by its own terms, does not apply to cases filed after December 31, 1994. CCP § 128.5(b)(1).

Moving party to give notice.