Opinion
NOT TO BE PUBLISHED
Appeals from post judgment orders of the Superior Court of Orange County No. 30 2008 00103768, William M. Monroe, Judge.
Snell & Wilmer LLP, and Richard A. Derevan for Defendants and Appellants.
Wirtz Hellenkamp LLP, Terrance John Hellenkamp and Corrie J. Klekowski for Plaintiffs and Respondents.
OPINION
O’LEARY, J.
Tonja Demoff, Toby Maloney, and several corporations owned and controlled by them (hereafter referred to collectively as the defendants unless the context indicates otherwise) appeal from the orders denying their motions to set aside a $1.2 million default judgment entered against them in favor of Kemery Day and her two corporations, Four Days Investment, Inc., and JAB 1962 NV, LLC (hereafter referred to collectively and in the singular as “Day”). The trial court struck the defendants’ answer and entered their defaults after they failed to appear at trial, and several weeks later conducted a default prove up hearing resulting in the judgment. We agree with the defendants the judgment is void because the trial court had no power to order entry of their defaults. When the defendants did not appear the trial court’s options were to proceed with the trial in their absence in accordance with Code of Civil Procedure section 594 or continue the trial. We further agree the judgment is void because the damages awarded exceeded what was pled in the complaint. Accordingly, the order is reversed.
The corporations are: TDCO LLC, a California limited liability company; TDCO Realty LLC, a Nevada limited liability company; TDCO Realty, Inc., a California corporation; Financial Freedom Seminar Systems LLC, a California limited liability company; and 04 Ocean, LLC, a California limited liability company (hereafter collectively called the Corporations).
All further statutory references are to the Code of Civil Procedure.
FACTS & PROCEDURE
Day filed her complaint against the defendants for fraud and breach of contract, among other causes of action, in March 2008. In short, Day alleged Demoff promoted herself as a “wealth coach” who through public speaking, seminars, books, and infomercials, advised people on how to become financially “free” through investing in real estate. On alleged promises she was to be Demoff’s partner in various Demoff run ventures, and would receive 25 percent of commissions earned on certain real estate transactions; Day gave Demoff $249,000 (her life savings), as loans. The loans were not repaid and the commissions were not paid. The defendants, represented by counsel, answered the complaint in April 2008.
A trial date was set for May 4, 2009, and the case was originally assigned to Judge Daniel J. Didier. In February 2009, the individual defendants (Demoff and Maloney) became self represented and defense counsel’s motion to be relieved as counsel for the Corporations was granted. On April 23, 2009, 10 days before the trial date, the defendants retained new counsel, Jessica Barfield McCarren, and substitutions of attorney were filed.
The matter was originally called for the estimated seven day jury trial on May 4. Although Day answered ready, her counsel explained he had not received trial documents from the defendants (e.g., exhibits, witness lists, stipulated facts etc.), understandably he thought as new defense counsel had just substituted in. The trial court continued trial to May 11, directing counsel to “conduct a meaningful issues conference pursuant to [Orange County Superior Court Local Rule 450 [now rule 317].]”
On May 11, Day appeared ready for trial, but defense counsel, Barfield McCarren, advised the court she had been sick for the entire past week, and was not ready to proceed with trial. She requested a short continuance. When the trial court stated it sensed “maybe there is not a lot of interest on behalf of the defense to move forward with this case[, ]” Barfield McCarren assured the court that was not the case. The court continued the case to May 13. On May 13, Day again appeared and answered ready. Demoff was present, but defense counsel Barfield McCarren had called in sick. The court continued trial to May 26.
On May 26, Day and her counsel appeared and answered ready. The defendants were not present, but defense counsel Barfield McCarren was. When asked if defendants were ready for trial, Barfield McCarren said “the official answer” was “ready, ” but she wanted another two weeks to prepare. The trial court expressed its concern about “a lack of defense preparation for trial and in compliance with local rule 450” and suggested it would entertain a request by Day for sanctions. The court ordered Barfield McCarren to meet and confer with Day’s counsel by May 29. It continued trial to June 8, and set a hearing on an order to show cause (OSC) regarding sanctions for failure to comply with the court rules and for being unprepared for trial.
On June 8, Day and her counsel again appeared and answered ready for trial. Demoff was present with defense counsel, Barfield McCarren. When the court asked if they were ready for trial, Barfield McCarren announced she wanted to withdraw from representing the defendants. Barfield McCarren explained she did not feel she could adequately represent the defendants due to unspecified health issues. Counsel explained she had just “come to terms” with her situation the night before—hence the lack of a written motion to withdraw. When the trial court asked Barfield McCarren if she had any medical documentation, she said she would get a note from her doctor.
The court explained to Demoff that if it granted Barfield-McCarren’s request to be relieved, Demoff would have to proceed in propria persona. When Demoff protested that Barfield McCarren had not been communicating with her, the court explained it had no control over Demoff’s choice of counsel and she would have to decide if she wanted to continue with her current counsel. Demoff and Barfield McCarren conferred off the record. When they returned, Barfield McCarren explained to the court Demoff did not want her to withdraw and “aside from my physical condition, [the defendants] are happy with me representing them.” Barfield McCarren suggested the court continue the trial for a few more days, to allow Barfield McCarren to talk with her doctors to see if “they can affirmatively say that I can go forward in 30 or 45 days....” The court continued trial and Barfield-McCarren’s motion to withdraw to June 19, ordered Barfield McCarren to submit evidence to the court regarding her health issues, and ordered the defendants would have 30 days to obtain new counsel.
On June 19, Day and her counsel again appeared ready to start trial. Barfield McCarren appeared for the defendants and presented a doctor’s note stating she was medically excused from work from May 15 until June 30. Barfield McCarren submitted her declaration stating in May she had been sick with pneumonia. On June 4, a close family member passed away, causing her to be further distracted. Barfield McCarren advised the court that in view of the doctor’s note, if she remained on, she would need another couple of weeks to recover before she could proceed to trial. The trial court observed that if it were a criminal case it would discharge Barfield McCarren, but it could not do so in a civil case, “besides, your client, for whatever reason, wants to retain you as a lawyer. That’s fine. It makes it easier for the court because that’s an absolute right they have. Okay. And then if you’re not prepared next time, just go forward. [¶] I don’t know what else I can do to impress upon you the need to go forward with this case.”
Trial was continued to July 13. The court noted the case would have to be assigned to a different courtroom. The court warned the defendants, “the court certainly recognizes the issue of the right to counsel. Quite frankly, I thought that... Demoff would obtain new counsel but she has the absolute right to retain this counsel and this court has no discretion [over] that. [¶] The remedy, of course, is if counsel is not prepared next time in spite of all of the admonitions, in fact, ... Demoff stood here and told me face to face that she did not want to discharge this lawyer, I’m hearing it again today. [¶] The next trial date there would just be absolutely no excuses. None. If they’re not prepared, we will do a default prove up.”
On July 13, Day and her counsel appeared ready for trial. Demoff was present with Barfield McCarren, and they answered ready for trial. The court placed the case on the day to day trailing trial list.
On July 15, a courtroom became available and the case was sent to Judge William M. Monroe for trial. Day was present with her counsel, ready to start trial. Neither the defendants nor their counsel were present. The court clerk explained she had received a telephone call from Barfield McCarren, who informed her that she was unable to proceed due to illness. Barfield McCarren told the clerk she had fainted that morning and drove herself to the hospital, where she was waiting to be seen. The court recessed until the afternoon and had the clerk direct Barfield McCarren to call the court in the afternoon with an update.
In the afternoon, the clerk advised the court Barfield McCarren had called and was still in the hospital waiting to be seen by a doctor. The trial court recounted the procedural history of the case and observed the defense was not prepared to go forward. The court ordered the answer stricken, granted Day’s motion to enter defaults of all defendants, and set a “default prove up hearing” for July 29. Subsequently, the court clerk informed the court she had again spoken with Barfield McCarren and told her the court had entered defaults. Barfield McCarren replied that “she will be filing a motion.”
The default prove-up hearing was continued to September 2, 2009. Day filed and served on the defendants an extensive “default judgment packet, ” including declarations and documents supporting her claims, that was submitted to the court for review. The court signed Day’s proposed judgment awarding $774,852.11 in damages, $160,483.10 in prejudgment interest, $308,466 in attorney fees, and $10,441.50 in costs, for a total of $1,254,242.71. The judgment was on a judicial council form on which boxes were checked stating it was a judgment by the court by default in accordance with section 585, subdivision (b), but boxes were also checked stating it was a judgment after a court trial after defendant did not appear at trial having been properly served with notice of trial.
First Motion to Set Aside Default Judgment
On October 6, 2009, Barfield McCarren filed an ex parte application to set aside the default judgment against the defendants under section 473, subdivision (b), invoking both the discretionary and mandatory attorney fault provisions. On October 8, the ex parte application was denied and Demoff was told it must be set as a noticed motion. On November 9, 2009, Barfield McCarren refiled the motion as a noticed motion.
In her declaration, Barfield McCarren stated she failed to appear on July 15 for trial because of the unexpected occurrence of her fainting as she prepared to leave for court that morning. Barfield McCarren stated she lost consciousness briefly and hit her head as she fell. She drove straight to the hospital. Barfield McCarren said she had sent Demoff a text message telling her to be at court on July 15, but Demoff apparently did not get the text message. In addition to the original doctor’s note excusing her from work until June 30, Barfield McCarren attached to her declaration photocopies of the hospital patient identification bracelet and prescription department discharge form confirming she was in a Los Angeles area hospital on July 15.
Demoff submitted her own declaration stating she was frustrated with Barfield-McCarren’s poor communication and repeated requests for continuances, but if the court vacated the defaults, she intended to continue to retain Barfield McCarren as her counsel for trial. Demoff also attached emails indicating she checked the court’s website on July 16 and learned of the entry of the defaults, and she was aware of the original date set for the default prove-up hearing (July 29) and understood it was important that they appear.
Barfield McCarren did not attend the December 8 hearing on the motion to set aside the default, but the defendants were represented by counsel specially appearing on Barfield-McCarren’s behalf. The trial court, before Judge Monroe, denied the motion. In its minute order, in denying discretionary relief the court referenced the numerous trial continuances and Demoff’s own behavior. The court concluded mandatory relief for attorney fault was not applicable as “the default was not due to failure to file an answer to the complaint but rather for failure to appear at trial.”
On February 3, 2010, now represented by new counsel the Corporations filed a notice of appeal from the September 2, 2009, default judgment and the December 8, 2009, order denying the motion to vacate. Demoff and Maloney had both filed for bankruptcy, but after obtaining relief from the automatic stays, they filed a notice of appeal from the judgment and order on March 9, 2010. We subsequently dismissed the appeal from the judgment as untimely, leaving in place the appeal from the order denying the motion to vacate the judgment.
Second Motion to Set Aside Default Judgment
On June 14, 2010, the defendants filed a second motion to set aside the defaults and vacate the default judgment contending the judgment was void because the trial court lacked authority to enter a default when an answer was on file and it lacked authority to strike the answer for failure to appear at trial. In such cases (i.e., where a defendant fails to appear at trial), the only remedy is to proceed with an uncontested trial in accordance with section 594. The defendants further asserted the default judgment was void because it exceeded the amount of damages pleaded in the complaint.
The pending appeal from denial of the first motion did not deprive the trial court of jurisdiction to consider this motion. A void judgment may be set aside by the trial court despite the pendency of an appeal. (Betz v. Pankow (1993) 16 Cal.App.4th 931, 938.)
The trial court denied the motion. In its minute order, the court stated, “[Day’s] reference to the uncontested trial as a default judgment does not change the nature of the [section] 594 hearing.” The court found the notice requirements of section 594 had been met, and because the judgment was one entered after an uncontested trial, not a default judgment, damages were not limited by the complaint. The court observed that although it had discretion to grant relief, “given the history of the case, not a single reason comes to mind why the court might want to exercise discretion to grant relief.”
The defendants separately appealed the order denying the second motion to vacate the defaults and set aside the default judgment. We consolidated the appeals.
DISCUSSION
1. The trial court acted in excess of its authority in striking the answer and entering the default judgment.
The defendants contend the trial court erred by denying both motions to set aside the default judgment. The second motion asserted the judgment was void because the trial court acted in excess of its authority when it struck the answer and entered defaults when they did not appear at trial. We agree. Because there was an answer on file, the trial court had no power to order the entry of the defendants’ defaults when they failed to appear for trial. The trial court’s only option was to proceed with the trial in their absence under section 594 or continue the trial. The postjudgment attempt to recharacterize the default prove-up hearing as an uncontested trial was unavailing.
Section 594, subdivision (a) provides, “In superior courts either party may bring an issue to trial or to a hearing, and, in the absence of the adverse party, unless the court, for good cause, otherwise directs, may proceed with the case and take a dismissal of the action, or a verdict, or judgment, as the case may require; provided, however, if the issue to be tried is an issue of fact, proof shall first be made to the satisfaction of the court that the adverse party has had 15 days’ notice of such trial.... If the adverse party has served notice of trial upon the party seeking the dismissal, verdict, or judgment at least five days prior to the trial, the adverse party shall be deemed to have had notice.”
Our analysis is guided by this court’s opinion in Heidary v. Yadollahi (2002) 99 Cal.App.4th 857 (Heidary), and Wilson v. Goldman (1969) 274 Cal.App.2d 573 (Wilson), cited extensively in Heidary. Accordingly, we begin with those cases.
In Wilson, supra, 274 Cal.App.2d 573 defendant answered the complaint and was properly served with notice of trial, but when trial was called neither defendant nor his attorney appeared. (Id. at p. 576.) The court entered defendant’s default, and left it for plaintiffs’ counsel to “‘prove up damages at some future date.’ [Citation.] No evidence was taken, no trial was held and no continuance was granted. The case obviously was removed from the trial calendar.” (Ibid.) Several months later, plaintiffs filed a “‘Memorandum for Setting for Hearing (uncontested matter)’” describing the hearing as one to “‘Prove up Damages.’” (Ibid.) Defendant was not served with the documents or given notice of the hearing, at which time the trial court entered a default judgment for plaintiffs. Defendant subsequently filed a motion to set aside the default judgment under section 473, primarily based on counsel’s affidavit explaining he did not appear at the trial because he was hospitalized having just undergone major surgery. The trial court granted the motion and plaintiffs appealed.
In affirming the trial court, Wilson concluded that regardless of whether the attorney’s affidavit explaining his absence supported the trial court’s order, the default judgment was properly set aside because it was void. (Wilson, supra, 274 Cal.App.2d. at pp. 577 578.) Wilson explained a default may not be entered when “an answer is on file, whether the defendant does or does not appear at the time the action is called for hearing. [Citations.] Where the defendant who has answered fails to appear for trial ‘the plaintiff’s sole remedy is to move the court to proceed with the trial and introduce whatever testimony there may be to sustain the plaintiff’s cause of action.’ [Citation.] In such case a plaintiff is entitled to proceed under the provisions of... section 594, subdivision 1, and he may do so in the absence of the defendant provided the defendant has been given at least five days notice of the trial.” (Wilson, supra, 274 Cal.App.2d. at p. 576, first italics in original, second italics added.) Wilson went on to explain, “Where a defendant has filed an answer, neither the clerk nor the court has the power to enter a default based upon the defendant’s failure to appear at trial, and a default entered after the answer has been filed is void [citations], and is subject to expungment at any time.... [Citation.] Here the plaintiffs did not proceed to trial on the date set and for which notice of trial had been served. Instead they obtained an entry of defendant’s default beyond the power and authority of the court to grant.” (Id. at p. 577.)
In Heidary, supra, 99 Cal.App.4th 857, this court reached the same conclusion. In Heidary¸ defendants filed an answer but did not have notice of the date originally set for trial. When defendants failed to appear for trial, the court struck their answer and entered their defaults. Notice of entry of the defaults was served on defendants. (Id. at p. 860.) A month later, plaintiffs filed their default prove-up package and a default judgment was entered. The trial court subsequently denied as untimely defendants’ section 473 motion to set aside the defaults. This court reversed concluding the judgment was void on its face and thus subject to attack at any time. (Id. at p. 862.)
Applying the reasoning of Wilson, Heidary concluded the trial court was without authority to strike a defendant’s answer for failure to appear at trial. We noted although an answer may be stricken as a sanction for a defendant’s misuse of the discovery process, “that provision has no application to the situation where defendant simply fails to appear at trial.” (Heidary, supra, 99 Cal.App.4th at p. 864.) When the Heidary defendants failed to appear, “the court’s only options... were to proceed with the trial in their absence, or to continue the trial.” (Ibid.) As in Wilson, the Heidary plaintiffs did not immediately proceed with an uncontested trial. They “chose to wait until another day to prove up their damages, so no trial was held.” (Id. at pp. 863-864.)
We turn then to the present case. Day argues Wilson and Heidary are distinguishable due to facts concerning notice. Day argues that unlike the defendants in Heidary, Demoff had notice of the original July 15 trial date at which she failed to appear. But that distinction is without meaning. Indeed, as noted in Heidary, the defendant in Wilson had notice of the original trial date but failed to appear, resulting in the erroneous entry of his default. Here, had Day chosen to proceed with an uncontested trial on July 15 and presented evidence supporting her case, a judgment in her favor would have been within the court’s power. (§ 594, subd. (a).) But that’s not what happened. The court struck the answer, granted Day’s motion to enter the defendants’ defaults, and saved for another day the prove-up of the amount of damages.
Day also argues that unlike the defendants in Heidary or Wilson, Demoff had notice of the date of the September 2, 2009, prove-up hearing. She further argues the September 2, 2009, hearing was effectively an uncontested trial of which the defendants had notice and at which they failed to appear. Thus she asserts the judgment was proper under section 594, subdivision (a) [court may enter judgment following uncontested trial provided defendant had 15 days notice of trial date]. Indeed, in denying the defendants’ motion to vacate the judgment, the trial court agreed with Day’s argument the September 2, 2009, proceeding was mistakenly referred to as a default prove-up hearing, when in fact it was an uncontested trial under section 594.
We sympathize with the frustration both trial judges involved in this case experienced as a result of the defense shenanigans in this case and in particular with Barfield-McCarren’s unprofessional behavior. But we cannot engage in revisionist history. This is not a case of simple mislabeling. This was in all ways intended to be a default judgment, and nothing suggests the September 2 hearing was a continued trial date. On July 15, the trial court directed the clerk to strike the answer and enter the defendants’ defaults, and it directed Day to set a date for a default prove-up hearing and to process the proper default papers through the clerk’s office. The defendants were given notice their defaults had been entered. Day then prepared what the trial court stated was a default prove-up package prepared in accordance with section 585. Although the trial court questioned the amount of attorney fees Day requested, it “acquiesce[d]” to the total amount of damages requested in her default prove-up package.
Nor can we agree notice of the default prove-up hearing was notice of a continued trial date at which the defendants could have, but failed to, appear. The defendants had been placed in default. “The entry of a default terminates a defendant’s rights to take any further affirmative steps in the litigation until either its default is set aside or a default judgment is entered.” (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385.) A defaulted defendant has no standing to participate in the prove-up hearing, or to complain of the evidence introduced therein, other than to complain the damages awarded are excessive. (Ibid.;see also Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1303; Ostling v. Loring (1994) 27 Cal.App.4th 1731, 1745.)
2. The default judgment is void because the damages exceed the damages specified in the complaint.
The defendants also contend the default judgment is void because the damages awarded exceed the amount stated in the complaint. We agree.
Day’s complaint did not specify the damages sought, but rather contained a non specific prayer for, as relevant here, “damages in an amount according to proof at trial, plus interest at the legal rate... [¶] [and] [r]easonable attorney’s fees and costs....” The judgment awarded Day damages of $774,852.11, prejudgment interest of $160,483.10, attorney fees of $308,466, and costs of $10,441.50.
Day does not contend the amount of damages is ascertainable from the complaint. Her only response to the defendants’ argument in this regard is that because this was not a default judgment, but a judgment following an uncontested trial, the court was not limited to the amount stated in the complaint. (See Garamendi v. Golden Eagle Ins. Co. (2004) 16 Cal.App.4th 694, 705 706.) Our discussion above resolves this contention—the judgment was a default judgment, not a judgment following an uncontested trial.
Section 580, subdivision (a), provides in part: “The relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint....” The purpose of this section is to guarantee defaulting parties adequate notice of the maximum judgment that may be assessed against them. (Becker v. S.P.V. Construction Co. (1980) 27 Cal.3d 489, 494; Stein v. York (2010) 181 Cal.App.4th 320, 325 (Stein).)
As this court noted in Stein, supra, 181 Cal.App.4th pages 325-326, “Section 580 must be strictly construed. [Citation.]... ‘The notice requirement of section 580 was designed to insure fundamental fairness. Surely, this would be undermined if the door were opened to speculation, no matter how reasonable it might appear in a particular case, that a prayer for damages according to proof provided adequate notice of a defaulting defendant’s potential liability. If no specific amount of damages is demanded, the prayer cannot insure adequate notice of the demands made upon the defendant. [Citation.]’ [Citation.] [¶] The California Supreme Court has explained, ‘“[T]he court’s jurisdiction to render default judgments can be exercised only in the way authorized by statute.” [Citation.]... “[C]ertainly no statutory method of procedure or limitation on power could be more clearly expressed than that set forth in section 580....” [Citation.]’ [Citation.] [¶] If a default judgment awarded against a defendant exceeds the relief demanded in the complaint [citation], or is a different form of relief than demanded in the complaint [citation], the defendant is ‘effectively denied a fair hearing... [citations]’ [citation]. Thus, a default judgment in an amount greater than the amount demanded is void and subject to either direct or collateral attack. [Citation.]”
We recognize there are some references to some specific damage amounts in the body of Day’s complaint, but they are insufficient to support the judgment. (See National Diversified Services, Inc. v. Bernstein (1985) 168 Cal.App.3d 410, 418 [damage allegations in body of complaint may cure defect in specific prayer].) The complaint named as defendants, Demoff as an individual and five corporations of which Demoff was a “managing member and/or owner.” The complaint alleged the five corporations were Demoff’s alter egos. As to Maloney, the complaint alleged she was also “managing member and/or owner” of two of the named corporations, Financial Freedom Seminar Systems and 04 Ocean, LLC, but there were no alter ego allegations as to Maloney. Nine of the complaint’s 10 causes of action were against Demoff and or the corporations, not Maloney. Those causes of action included allegations of two unpaid loans to Demoff: one made in June 2006 for $49,000 and another made in December 2006 for $200,000. Day also alleged Demoff had promised her 25 percent of Demoff’s commissions on certain real estate transactions. She specifically mentioned being entitled to 25 percent of Demoff’s commissions on four properties “for a total of $64,112.90, ” but it is not clear whether that figure was Demoff’s total commission, or the amount Day should have received. She also alleged Demoff agreed to pay her a commission of $80,000 on another transaction, but only paid her $40,000. But other damage amounts pertaining to unpaid commissions are completely nonspecific. Thus, at most, the body of the complaint specifies $393,000 in damages as against Demoff and possibly some of the corporations. Nothing on the face of the complaint supports a $774,852.11 damage award.
More importantly, there is nothing in the complaint that would have put Maloney on notice of any amount sought against her. She was named only in the complaint’s tenth cause of action for breach of written contract. That cause of action alleged one of Day’s corporations entered into an agreement with 04 Ocean, LLC, a corporation owned by Demoff and Maloney, whereby the two corporations would buy certain investment properties and equally contribute to the costs. Day alleged Demoff, Maloney, and 04 Ocean, LLC, did not contribute equally, causing Day “damage[s] in an amount according to proof at trial....”
As noted in Heidary, supra, 99 Cal.App.4that page 868, “It is imperative in a default case that the trial court take the time to analyze the complaint at issue and ensure that the judgment sought is not in excess of or inconsistent with it. It is not in plaintiffs’ interest to be conservative in their demands, and without any opposing party to point out the excesses, it is the duty of the court to act as gatekeeper, ensuring that only the appropriate claims get through. That role requires the court to analyze the complaint for itself—with guidance from counsel if necessary—ascertaining what relief is sought as against each defaulting party, and to what extent the relief sought in one cause of action is inconsistent with or duplicative of the relief sought in another. The court must then compare the properly pled damages for each defaulting party with the evidence offered in the prove up. (§ 585, subd. (b) [‘[T]he court shall hear the evidence offered by the plaintiff, and shall render judgment in his or her favor for such sum (not exceeding the amount stated in the complaint, in the statement required by [s]ection 425.11, or in the statement provided for by [s]ection 425.115), as appears by such evidence to be just....’].)”.
Because we conclude the judgment was void, we need not address the defendants’ contentions concerning the trial court’s denial of their original motion to set aside the judgment under either the discretionary or mandatory attorney fault provisions of section 473.
DISPOSITION
The order denying the motion to vacate the default judgment is reversed, and the case is remanded with directions to vacate the default judgment and the entry of defaults against Appellants. In the interests of justice, the parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).).
WE CONCUR: RYLAARSDAM, ACTING P.J., BEDSWORTH, J.