Puryear v. Stanley

Opinion

PUGLIA, P. J.

Defendant Mark Stanley appeals from an order denying his motion to set aside a default and default judgment. The motion was noticed within six months of entry of default but was defective in that it was unaccompanied by a proposed answer or other responsive pleading as required by Code of Civil Procedure section 473. The single issue

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on appeal is whether that defect may be cured after the six-month period has expired within which such motions must be brought. We hold that it may not.

On August 19, 1981, plaintiff filed a verified complaint alleging that defendant, a licensed real estate broker, by fraud and negligent misrepresentations had induced plaintiff to sell certain real property. Defendant was personally served with summons and complaint on August 29, 1981. On January 27, 1984, plaintiff filed a request for entry of default. Default was entered on February 8, 1984, and default judgment was entered on February 15, 1984.

On July 26, 1984, defendant noticed for hearing on August 23, 1984, a motion to set aside the default and default judgment. The motion was made pursuant to Code of Civil Procedure section 473, but no proposed answer or other responsive pleading accompanied the notice. A proposed answer was later served on plaintiff on August 22, and was received by the superior court on August 23, 1984, the date the motion was heard by the court.

On November 21, 1984, the superior court denied the motion to set aside the default and default judgment, concluding that the failure to submit a proposed answer or other pleading within six months of the date of entry of the default judgment precluded relief under section 473.

Code of Civil Procedure section 473 provides that the “court may, upon such terms as may be just, relieve a party or his or her legal representative from a judgment, order, or other proceeding taken against him or her through his or her mistake, inadvertance, surprise or excusable neglect. Application for such relief 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 must be made within a reasonable time, in no case exceeding six months, after such judgment, order or proceeding was taken;