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Filed 3/12/13 Tah v. U.S. Bank CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

ELSI TAH,

Plaintiff and Appellant,

v.

U.S. BANK, N.A., as Trustee, etc.,

Defendant and Respondent.

 A135289

 (Sonoma County

 Super. Ct. No. SCV-249909)

Plaintiff Elsi Tah (Tah) appeals from a judgment dismissing her case against U.S. 

Bank N.A. (the Bank), as Trustee for Citigroup Mortgage Loan Trust, Inc. Mortgage 

Pass-Through Certificates, Series 2007-AR-1, after the Bank’s demurrer to Tah’s 

complaint was sustained without leave to amend. The sole issue is whether a court may 

grant relief pursuant to Code of Civil Procedure section 473, sua sponte, from an entry of 

default to enable a defendant to file a demurrer.1 Our answer is “yes,” and we affirm the 

judgment.

I. BACKGROUND

According to the trial court docket, designated as part of the clerk’s transcript on 

appeal, Tah filed her complaint on June 28, 2011. The complaint, which Tah has not 

included in the appellate record, is attached as an exhibit to her brief. The complaint 

alleges that the Bank is the trustee of a deed of trust securing a $622,300 mortgage loan 

 

1 Unless otherwise indicated, subsequent statutory references are to the Code of 

Civil Procedure.
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on Tah’s residence. It seeks to postpone foreclosure of the deed of trust, rescind the loan 

agreement, and recover damages on various theories. 

When the court ruled on the Bank’s demurrer, it took judicial notice of its file in 

this case and a previous case filed by Tah against the Bank and others for the same relief 

sought in the present suit (Tah v. Wells Fargo Bank, N.A., et al; Sonoma County Super 

Ct. No. SVC-248866).2 The Bank, which was sued in the prior action as trustee of a 

different trust—the Harborview 2005-2 Trust Fund—demurred to the first amended 

complaint in that action, and the demurrer was sustained without leave to amend in May 

2011. On June 28, 2011, Tah dismissed the prior action without prejudice, and filed the 

complaint in this case. 

The attorney who handled both cases for the Bank declared in support of the 

demurrer in this case that when he received the complaint he mistakenly believed it was 

the complaint in the prior action that Tah had dismissed. Thus, he did not timely file a 

responsive pleading. 

On June 30, 2011, Tah moved for an order postponing foreclosure, and the motion 

was granted in an order filed on August 5. The order, drafted by Tah’s counsel, stated: 

“Plaintiff’s motion to postpone non-judicial foreclosure is granted, because defendants 

have failed to contact the borrower before recording a Notice of Default,[3]pursuant to 

Civil Code §2923.5(a), and failed to include a declaration that the defendants have tried 

with due diligence to contact the borrower, pursuant to Civil Code § 2923.5(b). The 

foreclosure sale is postponed until compliance with Civil Code §2923.5 can be shown.” 

On October 3, 2011, Tah filed a request for entry of default against the Bank. The 

clerk of the superior court entered the default as requested on that date. After receiving 

Tah’s request for entry of default, the Bank’s counsel said he tried unsuccessfully to 

 

2 We hereby grant the Bank’s motion to augment the record with documents from 

the prior and current cases.

3 According to documents in a request for judicial notice in support of the 

demurrer, a notice of default was recorded against Tah’s property showing that her loan 

was $153,801.63 in arrears as of April 19, 2010. 
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reach Tah’s counsel by telephone. He left messages explaining his “own mistaken belief 

that [the current case] had been dismissed and inquired whether [counsel] would stipulate 

to removing [Tah’s] request for default, given that relief from default is mandatory when 

default is entered due to mistake by counsel.” The Bank’s lawyer eventually spoke with 

Tah’s counsel’s assistant who advised him in e-mails that Tah’s counsel would contact 

him on October 28, but he did not. 

The Bank demurrered on November 2. The Bank’s counsel stated in his 

declaration that, before demurring, he contacted a superior court clerk and was told that 

no default against the Bank had been entered. On January 20, 2012, Tah filed opposition 

to the demurrer on the sole ground that the entry of default cut off the Bank’s right to 

appear in the action. The Bank’s lawyer declared that he spoke again with a superior 

court clerk on January 24 and was advised that no default had been entered. 

At the February 1, 2012, hearing on the demurrer, after Tah’s counsel informed 

the court that a default had been entered, the court responded: “Let’s suppose it was. 

And let’s suppose that Defendant is going to file a 473 motion to set that aside. . . . Let 

me just tell you what I’m thinking of doing at this point in light of this confusion, is 

taking the demurrer under submission, setting a date for a 473 motion at this point . . . so 

that that motion can be heard in a timely fashion.” Tah’s counsel stated that “the Court’s 

course of conduct would be acceptable to Plaintiff,” but the Bank objected to it, arguing 

that “[the] Bank has a right under California law, under statute, to file a responsive 

pleading up until a date a default is entered. Our position remains the default was not 

entered.” 

The court took the demurrer under submission and then sustained it without leave 

to amend, stating that it had “taken Judicial Notice of its own file [and] considered the 

implications of C.C.P. §473.” Judgment was entered for the Bank, from which Tah has 

timely appealed. 

II. DISCUSSION

Tah argues that the demurrer was erroneously sustained, renewing the argument 

she presented in the trial court that entry of default against the Bank precluded it from 
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filing a pleading in the case. (6 Witkin, Cal. Procedure (5th ed. 2008) Proceedings 

Without Trial, § 175, p. 617.) Tah also contests the demurrer ruling on substantive 

grounds, arguing that her complaint states causes of action based on violations of Civil 

Code sections 2923.5 et seq.

The Bank does not dispute on appeal, as it did in the trial court, that default was in 

fact entered against it. But the Bank argues that Tah has forfeited all of her arguments by 

failing to designate an adequate appellate record. The Bank further argues that the 

demurrer was properly considered on its merits, and correctly sustained without leave to 

amend under the doctrine of res judicata by virtue of the judgment in the prior action.

We agree with the Bank that the record is inadequate to evaluate Tah’s assertions 

of substantive error in the court’s decision. The record does not include the Bank’s 

memoranda in support of the demurrer, or the supporting declaration and request for 

judicial notice. Tah did not even designate the complaint as part of the record. 

Consequently, we are in no position to evaluate her causes of action on the merits. Tah’s 

opposition to the demurrer was based entirely on the entry of default against the Bank, 

and that procedural argument is the only one properly before us.4

This appeal boils down to the narrow question of whether the court, on its own 

motion, could grant relief under section 473 from the entry of default. We conclude that 

it could. Section 473, subdivision (b) provides that “[t]he court may, upon any terms as 

may be just, relieve a party of 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.” It has long been “well established” that the 

statute is “to be liberally construed” (Riskin v. Towers (1944) 24 Cal.2d 274, 279), and 

section 473, subdivision (b) does not expressly prohibit the court from acting on its own 

motion. A court should have the power to rectify mistakes of its staff that contribute to 

those of counsel, such as the erroneous advice of the clerks in this case that no default 

 

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Thus, we need not determine whether the prior judgment against Tah was res 

judicata barring her present claims.
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had been entered. The majority of the reported cases on point support our conclusion. 

(Compare Allstate Ins. Co. v. Fisher (1973) 31 Cal.App.3d 391, 396-397 [court properly 

set aside default on its own motion], and Stuart v. Alexander (1935) 6 Cal.App.2d 27, 28 

[same], with Remainders, Inc. v. Superior Court (1961) 192 Cal.App.2d 411, 412-413 

[court cannot grant defendant relief from default on its own motion].) We think vesting 

such inherent authority in the trial court is the better rule.

III. DISPOSITION

The judgment is affirmed.

_________________________

Siggins, J.

We concur:

_________________________

Pollak, Acting P.J.

_________________________

Jenkins, J.