PRETRIAL ADJUDICATION
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Default
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Relief from Default
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Code Civ. Proc. §473
............Grounds
9 Cards On This Topic:
Relief from default judgment because of mistake, inadvertence, surprise, or excusable neglect.
Mailing address cannot be marked "unknown" for purposes of CCP 587 merely because personal service could not be effected at that address; default should have been set aside as defective affidavit of mailing was prejudicial to D.
Trial court erred in denying Ds' application to vacate default judgment where they substantially complied with requirements of mandatory provision of CCP 473(b).
Motion to set aside default properly denied where W's service of civil complaint on D in prison was executed correctly and judgment not void; slight error in spelling of his name did not entitle him to set aside.
Default set aside where 3d amend. complaint did not name D and failed to apprise him of demand, no notice informed him of amount of damages sought and he had no opportunity to respond to "errata" adding him as D.
Trial court properly denied CCP 473(b) relief where defaults not taken against D through its mistake, inadvertence, surprise, or excusable neglect; other defaults void where D not given notice of damages requested.
Absent proper affidavit or declaration that Ds' lack of actual notice was not caused by inexcusable neglect or avoidance of service, trial ct. properly denied motion to set aside default.
Code Civ. Proc. §473 relief from insured’s default unavailable to insurance company where company well aware of its error in denying coverage.
When clerk acts in excess of statutory power in entering default, such act is open to attack at any time, and 6-month limitation period of Code Civ. Proc. §473 not applicable.