Wanda E. Eurasquin v. Zaza Prime LLC, et al.

CASE NO.: 24NWCV04598 HEARING: 09/02/2026 @ 9:30 a.m. #15 TENTATIVE ORDER Defendant Corey Simmon's motion to set aside default is GRANTED. The default entered on December 26, 2025, is set aside and vacated. Defendant Corey Simmons is granted leave to file an Answer by October 2, 2026, end of business day. Moving party(s) to give notice. Defendant Corey Simmons moves for an order setting aside the default and default judgment previously entered in this action on December 26, 2025, and for leave to file an Answer.

Background

On November 22, 2024, Plaintiff Wanda E. Eurasquin ("Plaintiff") filed a complaint against Defendants Zaza Prime LLC, Corey Simmons, and Madelyn Martinez alleging causes of action for: (1) breach of contract, (2) international misrepresentation, (3) false promise, (4) fraud in contract formation, (5) constructive fraud, (6) unjust enrichment, and (7) alter ego.

On June 3, 2025, Plaintiff served Defendant Corey Simmons ("Defendant") by substitute service.

On December 26, 2025, the Court entered default against Defendant.

Defendant now seeks to set aside the default and filed the instant motion on June 5, 2026.

On August 18, 2026, Plaintiff filed an opposition.

On August 26, 2026, Defendant filed a reply.

Legal Standard

"The 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." (Code Civ. Proc., Sec. 473, subd. (b).)

Request for Judicial Notice

Defendant requests judicial notice of the demurrers filed by Defendant and Defendant Madelyn Martinez and the Certificate of Mailing of Minute Order filed September 9, 2025 and dated September 11, 2025.

The Court takes judicial notice of these documents pursuant to Evidence Code section 452 subdivision (d).

Analysis

Defendant moves for an order setting aside the December 26, 2025 default because the Clerk's Certificate of Mailing was not sent to Defendant as there was no address listed for him on the Notice.

Defendant argues that he was never given notice by the Court.

Defendant argues that it was not until he contacted Plaintiff's counsel on April 20, 2026, that he actually received notice.

Defendant argues that he did not file an answer due to surprise.

"'[S]urprise,' as used in section 473, refers to some condition or situation in which a party ... is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against." (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206 [internal quotations and citation omitted].)

The Court finds that Defendant cannot rely on surprise to justify why he did not file an answer.

The ruling on the demurrer was issued on September 9, 2025.

Even if Defendant had not been given notice of the ruling on demurrer, Defendant was awaiting a ruling on the demurrer.

He was the one who filed it and reserved a hearing date for it.

Defendant has not shown that he inquired about the Court's ruling or anything regarding the case for more than eight months.

If Defendant had exercised ordinary prudence, he would have inquired about his demurrer or the case during that time.

Furthermore, Defendant states that he "was not present when the decision was rendered because [he] thought that Madelyn Martinez was going and that she would tell [him] what happened if it was important. She never did." (Declaration of Corey Simmons, P. 4.)

This shows that Defendant has not exercised ordinary prudence or diligence that could have saved him from the surprise.

Additionally, as Plaintiff points out, Plaintiff's counsel mailed Defendant the request for default, the notice of the default entered against Defendant, and the request for default judgment at the address shown on Defendant's demurrer. (Declaration of Ibrahim Muhtaseb, Ex. A.)

Thus, Defendant was given notice of the default proceedings prior to his inquiry with Plaintiff's counsel.

Thus, the Court denies Defendant's motion to set aside on the ground of surprise.

Defendant also attempts to rely on Code of Civil Procedure section 473.5; however, section 473.5 does not apply because Defendant received actual notice of the action in time to defend it as shown by the demurrer he filed.

In his reply, Defendant raises the argument that the deadline to file his answer had not begun to run because under Code of Civil Procedure section 472b, "[w]hen a demurrer to any pleading is sustained or overruled, and time to amend or answer is given, the time so given runs from the service of notice of the decision or order, unless the notice is waived in open court, and the waiver entered in the minutes." (Code Civ. Proc., Sec. 472b.)

Here, the September 9, 2025 Order/Ruling shows that notice was not waived and the clerk was to give notice.

The Clerk's Certificate of Mailing also does not include the address at which Defendant was given notice, thus it cannot be shown that Defendant was given notice of the September 9, 2025 Order/Ruling.

"It is well settled that a court has the inherent power to correct [a] clerical error in its judgment so that the judgment will reflect the true facts. [Citation.] The power of a court to correct clerical mistakes in judgments is also a statutory power pursuant to section 473. . . . A clerical error in the judgment includes inadvertent errors made by the court which cannot reasonably be attributed to the exercise of judicial consideration or discretion." (Estate of Douglas (2022) 83 Cal.App.5th 690, 695 [internal citation and quotations omitted]; Code Civ. Proc., Sec. 473, subd. (d) ["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"].)

Because Defendant was inadvertently not given notice of the September 9, 2025 Order/Ruling, the time by which Defendant had to file his answer had not yet run, and default should not have been entered.

Accordingly, the Court grants the motion to set aside default.

Conclusion

Defendant Corey Simmon's motion to set aside default is GRANTED.

The default entered on December 26, 2025, is set aside and vacated.

Defendant Corey Simmons is granted leave to file an Answer by October 2, 2026, end of business day.

Case Number: 25NWCV00855 Hearing Date: September 2, 2026 Dept: D HANS E. GARCIA V. HYUNDAI MOTOR AMERICA, et al.