Filed 7/28/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

STEVEN DOLLASE, 

Plaintiff and Respondent,

v.

WANU WATER INC.,

Defendant and Appellant.

 B314900

 (Los Angeles County

 Super. Ct. No. 19STCV19368)

APPEAL from a postjudgment order of the Superior Court 

of Los Angeles County. Barbara Ann Meiers, Judge. Reversed 

and remanded with directions.

Abt & Associates and Gregory D. Abt for Defendant and 

Appellant.

Norton Rose Fulbright US, James H. Turken and Neil P. 

Thakor for Plaintiff and Respondent.

_________________________
2

SUMMARY

The trial court entered a default judgment against 

defendant Wanu Water Inc. on June 16, 2020, and on 

December 7, 2020, defendant filed a motion to set aside its 

default and vacate the default judgment under the mandatory, 

attorney-fault provision of Code of Civil Procedure section 473, 

subdivision (b) (section 473(b)). The mandatory provision 

requires the court to vacate the default judgment if the 

application is filed “no more than six months after entry of 

judgment,” is “in proper form,” and is accompanied by an 

attorney’s affidavit of fault, unless the court finds the default 

“was not in fact caused by” the attorney’s mistake, inadvertence,

surprise or neglect. (Ibid.)

Here, the trial court denied defendant’s motion and gave no 

reason for its ruling. The record shows the filing was timely and 

was accompanied by an attorney’s affidavit of fault. Thus, the 

only bases for denying the motion to vacate the default judgment 

were that the application was not “in proper form” or that the 

default “was not in fact caused by” the attorney’s neglect. 

(§ 473(b).) We have considered both possibilities and conclude 

neither justifies denying the motion.

Accordingly, the default and the default judgment must be 

vacated.

FACTS

1. The Court Filings: June 3, 2019, to August 4, 2020

On June 3, 2019, plaintiff Steven Dollase filed a complaint 

against defendant alleging causes of action for breach of contract, 

fraud and conversion. The proof of service of the summons and 

complaint showed personal service by Tina Irizarry of First Legal 

on Frances Hernandez, National Registered Agents, Inc.,
3

Registered Agent for defendant, at an address in Dover, 

Delaware.

On August 2, 2019, plaintiff’ filed a request for entry of 

default, and default was entered as requested on that date.

On February 24, 2020, plaintiff filed for entry of default 

judgment. 

On June 16, 2020, judgment by default was entered in the 

amount of $702,526.91. 

On August 4, 2020, the trial court issued a writ of 

execution, and plaintiff obtained $63,739.79 from defendant’s 

Wells Fargo Bank account. 

2. Defendant’s Motion To Vacate the Default Judgment

On December 7, 2020, defendant filed a motion to set aside 

the default and vacate the default judgment. Defendant’s motion 

also requested an order quashing service of process, an order 

staying any further action to enforce the judgment, and an order 

requiring plaintiff to return $63,739 already obtained by plaintiff.

Defendant based its motion on the mandatory provision of 

section 473(b), contending the default and default judgment were 

entered as a result of the neglect of defendant’s chief legal officer, 

John Grbic, as detailed in his affidavit of fault. Defendant also 

relied on subdivision (d) of section 473, which permits a court to 

set aside a void judgment, and on the court’s “inherent authority

to vacate a default and default judgment on equitable grounds.” 

And, defendant contended plaintiff submitted a false proof of 

service. 

a. Mr. Grbic’s affidavit of fault

The affidavit of fault of defendant’s chief legal officer, 

Mr. Grbic, gives his description of what happened between the 

time plaintiff filed his complaint (June 3, 2019) and the time 

defendant moved to vacate the default judgment (December 7, 

2020). That chronology is as follows.
4

In mid-July 2019, Mr. Grbic learned from one of 

defendant’s outside counsel that plaintiff had filed a summons 

and complaint against defendant. He did not know if or how 

service had been completed, and he did not inquire, or take any 

action to safeguard defendant from having a default entered 

against it. Mr. Grbic listed the actions he should have but did 

not undertake. He stated he was solely responsible for the acts 

and omissions that resulted in the default and the default 

judgment.

On August 2, 2019 (the same day default was entered), 

Mr. Grbic e-mailed plaintiff’s counsel saying defendant had 

received word that a complaint was filed and was “looking to 

retain local counsel” to handle the complaint; Mr. Grbic asked if 

he could provide plaintiff’s counsel’s name as the point of contact 

when counsel was retained.

On August 8, 2019, plaintiff’s counsel responded 

affirmatively, also telling Mr. Grbic a default had already been 

entered. Mr. Grbic responded that “we never received service”

and that counsel “will be in touch soon.” Plaintiff’s counsel

responded (August 9) that “we served your registered agents in 

Delaware.”

In October 2019, Mr. Grbic and plaintiff’s counsel began 

negotiations to settle the matter. E-mails attached to Mr. Grbic’s 

affidavit reflect settlement communications beginning on 

October 10, 2019, and continuing through January 27, 2020. The 

record does not contain a response to a counteroffer plaintiff 

made on January 27, 2020, or any further e-mail 

communications. 

On February 24, 2020, as already mentioned, plaintiff filed 

for entry of default judgment. 

Six months later, on August 28, 2020, Mr. Grbic learned, to

his “complete surprise,” that plaintiff’s counsel had filed a default 
5

package on February 24 and that plaintiff had obtained a default

judgment on June 16, 2020. He learned this when Wells Fargo

Bank informed him of the writ of execution plaintiff had obtained 

and that $63,739.79 had been debited from defendant’s Wells 

Fargo Bank account. 

Plaintiff’s counsel did not give Mr. Grbic notice of his intent 

to file the default package, and did not mail Mr. Grbic any of the 

notices the court sent to plaintiff’s counsel relating to the hearing 

on the default judgment or a copy of the judgment.

b. The Gregory Abt declaration

In addition to the Grbic affidavit of fault, defendant’s 

motion to vacate the default judgment included a declaration 

from Mr. Abt, outside counsel retained by defendant. Mr. Abt

declared that on November 8, 2020, as he was preparing to file

defendant’s motion to vacate the default judgment, he noticed 

that the signature of the process server (Ms. Irizarry) on the 

proof of service “did not in any way shape or form” resemble her 

signature on the proof of service in another pending case in which 

he also represented defendant. He then collected eight other 

proofs of service signed by Ms. Irizarry from other states, and 

attached these to his declaration, asserting the person who 

signed the proof of service in this case was not the same person 

who signed the others. Defendant requested judicial notice of all 

these proofs of service. 

The Abt declaration also states that “[a]ttached as 

Exhibit 7 to this declaration is [defendant’s] motion to quash 

service that will be provided under a separate declaration.” But 

no separate declaration, and no motion to quash, appears in the 

trial court record. 

At the hearing on defendant’s motion to vacate the default,

on February 8, 2021, the proposed motion to quash was nowhere 

to be found. The hearing was held remotely because of the
6

pandemic protocols, so counsel could not provide a copy at the 

hearing. (This court granted defendant’s motion to augment the 

record on appeal to include the motion to quash, together with 

documents showing defendant’s January 1, 2021 e-filing request

to attach the motion to the Abt declaration already on file, as well 

as a February 8, 2021 request for courtesy copy delivery and 

February 9, 2021 confirmation of delivery to “DEPT 12 Judge 

Meiers.”) 

3. Plaintiff’s Opposition

Plaintiff’s opposition, filed December 18, 2020, included 

declarations from his counsel, Neil Thakor, and from the process 

server, Ms. Irizarry.

Ms. Irizarry declared that, on June 12, 2019, she served 

Frances Hernandez with National Registered Agents, Inc. at its

address in Delaware, and immediately signed the proof of service. 

She stated the proof of service was “not in any way forged or 

doctored”; the signature was hers; and she was willing to be 

deposed and testify to those facts. 

Mr. Thakor described the chronology of events and

appended much of the same e-mail correspondence with 

Mr. Grbic as already recounted. 

In the opposition, plaintiff contended, along with erroneous 

legal arguments based on outdated precedent, that “default was 

entered as a result of the neglect of both Wanu’s counsel, Wanu’s 

Chief Executive Officer and its Board.” As evidence, plaintiff 

pointed to the communications attached to Mr. Thakor’s 

declaration, showing that defendant’s chief executive officer 

(CEO) was copied on the e-mail in which plaintiff’s counsel

disclosed that a default had been entered against defendant

(August 8, 2019); on e-mails showing plaintiff’s counsel sent 

Mr. Grbic and the CEO a copy of the complaint on October 3, 

2019; and on an e-mail in which plaintiff’s counsel stated that “I 
7

don’t think we will be waiting for you to retain counsel much 

longer” (October 3, 2019).

Most of the settlement communications do not show 

defendant’s CEO as receiving a copy, including one from 

plaintiff’s counsel in November 2019 saying plaintiff would 

“proceed with the default judgment” if defendant refused its

demand to inspect financial records. Plaintiff also cited an e-mail 

from Mr. Grbic to plaintiff’s counsel (January 27, 2020), stating

that “the board appears to be very interested in litigation to 

obtain the data needed for the other cases against [other 

persons].” That e-mail (which also states “we will get back to you 

with a response” to plaintiff’s counteroffer) is the last e-mail in 

the record about settlement.

From the evidence just described, plaintiff contended that 

defendant “made the deliberate decision to not respond to the 

Complaint and seek relief from default,” and “cannot now force 

its attorney to fall on his sword, to cover up for its own mistakes.”

4. Defendant’s Reply

Defendant argued there was no evidence that any conduct 

on its part in any way contributed to the entry of default on 

August 2, 2019, which it says is the critical period for 

determining the viability of an attorney’s affidavit of fault. 

Moreover, defendant contended that, even assuming defendant

was in any way responsible, precedents state that mandatory 

relief does not require the attorney to be solely responsible, citing 

Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 928–929

(Benedict) (observing that “[o]n its face, section 473, 

subdivision (b), does not preclude relief under the mandatory 

provision when default is entered as a result of a combination of 

attorney and client fault. The statute merely requires that the 

attorney’s conduct be a cause in fact of the entry of default (see 
8

§ 473, subd. (b)), but does not indicate that it must be 

the only cause”).

Defendant also continued to argue that the judgment was 

void because of a false proof of service.

5. Additional Briefing

On January 4, 2021, at a hearing on the motion to vacate 

the default judgment, the court stayed all collection efforts and 

enjoined plaintiff from disbursing any funds already collected, 

and “set[] a hearing as to service.”

On February 2, 2021, two days before the then-scheduled 

hearing date, plaintiff filed a supplemental brief in opposition to 

defendant’s motion to vacate the judgment. In addition to other

points unnecessary to recite here, plaintiff argued for the first 

time that defendant’s application did not include an answer or 

other pleading proposed to be filed, as required by the statute,

and therefore it must be denied. 

Defendant responded with a declaration from counsel 

protesting the “11th-hour service” and, among other points, 

stating that its motion to vacate the default was accompanied by 

a motion to quash as its “other pleading proposed to be filed,” as 

provided in the statute. 

6. The Hearing

The court held the hearing on February 8, 2021. The

parties argued about the proposed motion to quash, whether it 

qualified as a responsive pleading, and whether it had been filed, 

since there was no copy in the court’s file. The hearing was 

remote because of the pandemic, so counsel could not provide a 

copy at the hearing. The parties also argued about the validity of 

service of the summons and complaint, and particularly the 

discrepancy in Ms. Irizarry’s signature on the proof of service 

compared with other proofs of service. The trial court took the 

matter under submission.
9

On February 22, 2021, the court issued its ruling denying 

defendant’s motion to set aside the default and vacate the default 

judgment, and served the minute order on the parties. The court 

did not state a reason for its decision.

Almost six months later, on August 13, 2021, defendant 

served notice of entry of the court’s order, and filed a notice of 

appeal on August 17, 2021. 

During the briefing of this appeal, plaintiff requested 

judicial notice of four documents.

1 None of the documents was

judicially noticed by the trial court, and none of them has any 

relevance to either of the two issues we decide in this case. We 

therefore deny the request.

DISCUSSION

Section 473(b) provides in pertinent part: 

“Notwithstanding any other requirements of this section, the 

court shall, whenever an application for relief is made no more 

than six months after entry of judgment, is in proper form, and is 

accompanied by an attorney’s sworn affidavit attesting to his or 

her mistake, inadvertence, surprise, or neglect, vacate any 

(1) resulting default entered by the clerk against his or her client, 

and which will result in entry of a default judgment, or 

(2) resulting default judgment or dismissal entered against his or 

her client, unless the court finds that the default or dismissal was 

not in fact caused by the attorney’s mistake, inadvertence, 

surprise, or neglect.”

1 The documents are: a motion to set aside a default that 

defendant filed in a different case in September 2020; an affidavit 

supporting that motion; a notice of confirmation of an electronic 

filing in this case dated August 1, 2019; and an e-mail from 

plaintiff’s counsel to his assistant on August 2, 2019, asking her 

to refile and re-serve the request for entry of default.
10

“Unlike the discretionary ground for relief, a motion based 

on attorney fault need not show diligence in seeking relief. The 

motion is timely if filed within six months of the entry of the 

default judgment or dismissal.” (Younessi v. Woolf (2016) 

244 Cal.App.4th 1137, 1147; Milton v. Perceptual Development 

Corp. (1997) 53 Cal.App.4th 861, 868.)

“The purpose of [the] mandatory relief provision is to 

alleviate the hardship on parties who lose their day in court due 

to an inexcusable failure to act by their attorneys. [Citation.] 

More recently, the Court of Appeal has stated the purpose was to 

relieve the innocent client of the burden of the attorney’s fault, to 

impose the burden on the erring attorney, and to avoid 

precipitating more litigation in the form of malpractice suits.” 

(Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 723 (Rodriguez).)

Here, plaintiff contends two grounds support the trial 

court’s denial of the application for mandatory relief. We 

disagree, and address plaintiff’s arguments in turn.

1. “In Proper Form”

Plaintiff asserts the application for relief was not “in proper 

form” because it “did not contain a proposed answer or any other 

responsive pleading,” and because defendant did not provide a 

proposed answer before the February 8, 2021 hearing. 

a. The legal principles

We apply the following principles.

First, there is precedent stating the Legislature “intended 

the phrase ‘ “in proper form” ’ to encompass the mandate that the 

application for relief . . . be accompanied by the pleading proposed 

to be filed therein.” (Hernandez v. FCA US LLC (2020) 

50 Cal.App.5th 329, 336–337 (Hernandez), citing Carmel, Ltd. v. 

Tavoussi (2009) 175 Cal.App.4th 393, 401 (Carmel).) 

Second, substantial compliance with that requirement is

sufficient. (Carmel, supra, 175 Cal.App.4th at p. 403.)
11

Third, the statutory language plaintiff relies on requires

submission of “the answer or other pleading proposed to be filed”

– language that on its face does not exclude a motion to quash as 

a proper response to a complaint.

b. This case

The substance of plaintiff’s argument is that a motion to 

quash is not “a responsive pleading” because it does not

demonstrate readiness to proceed on the merits. Plaintiff relies 

on language in cases where the defendant in default proposed to 

file an answer together with the motion for relief from default. 

The issue in those cases was whether the filing of a proposed 

answer substantially complied with the statute if the answer was 

not attached to the application and was instead filed later. For 

example, in Carmel, the defendants executed a proposed answer, 

but the record did not show they included it with their 

application for relief. But the defendants “made it available at 

the hearing on the motion,” and this “substantially complied with 

the requirements of the mandatory relief provision of [section 

473(b)].” (Carmel, supra, 175 Cal.App.4th at p. 403.)

In Carmel, the court stated that “we interpret the phrase 

‘in the proper form’ to include the requirement that a proposed 

answer accompany the application for mandatory relief.” 

(Carmel, supra, 175 Cal.App.4th at p. 402.) Similarly, Job v. 

Farrington (1989) 209 Cal.App.3d 338, relied on in Carmel,

stated that the object of the “proposed answer or other pleading” 

requirement “was simply to require the delinquent party seeking 

leave to contest on the merits, to show his good faith and readiness 

to at once file his answer in the event that leave is granted.” 

(Job, at pp. 340, 341, italics added.) Both cases involved a 

proposed answer, not any other kind of pleading, and their 

language is accordingly couched in terms of a proposed answer, 

rather than any other kind of pleading. Neither case holds that a 
12

responsive pleading must address the merits of the case, and 

neither court discusses what “on the merits” means. In short, 

neither court considered whether a motion to quash service of 

process constitutes an “other pleading proposed to be filed”

within the meaning of section 473(b).

Plaintiff cites the policies supporting the requirement that 

a proposed pleading accompany the application for relief, as 

described in Carmel: “ ‘ “policies [which] favor getting cases to 

trial on time, avoiding unnecessary and prejudicial delay, and 

preventing litigants from playing fast and loose with the 

pertinent legal rules and procedures.” ’ ” (Carmel, supra, 

175 Cal.App.4th at pp. 401–402.) While a motion to quash 

service would involve a delay in reaching the merits, plaintiff 

does not explain why it would create “ ‘ “unnecessary and 

prejudicial delay,” ’ ” or how it would constitute “ ‘ “playing fast

and loose with the pertinent legal rules and procedures.’ ” ’ 

(Ibid.)

Plaintiff further claims a motion to quash is not a pleading 

at all because it is not listed in Code of Civil Procedure

section 422.10 (“The pleadings allowed in civil actions are 

complaints, demurrers, answers, and cross-complaints”) and

because section 420 defines “pleadings” as “the formal allegations 

by the parties of their respective claims and defenses, for the

judgment of the court.” We do not construe the meaning of the 

term “pleading” in section 473(b) so narrowly. 

In a different context, Goddard v. Pollock (1974) 

37 Cal.App.3d 137 states that a motion to quash service of

summons “clearly constitutes a ‘pleading’ which, if timely filed,

would have precluded the clerk from thereafter entering 

defendants’ default.” (Id. at p. 141, citing Code Civ. Proc., § 585 

[governing when judgment may be had if a defendant fails to 

answer or file other specified motions, including a motion to 
13

quash].) Further, in many cases involving dismissals (as opposed 

to default judgments) under the mandatory provision, the “other 

pleading proposed to be filed” is a motion, or some other 

document that is not a “pleading” as defined in section 422.10. 

(See, e.g., Hernandez, supra, 50 Cal.App.5th at p. 337 [motion for 

attorney fees, after a settlement and dismissal]; see also 

Rodriguez, supra, 234 Cal.App.4th at pp. 719–720 [verified 

discovery responses, after dismissal implementing a terminating 

sanction for discovery abuse].) Consequently, the term “pleading”

is not limited as plaintiff suggests.

Next, plaintiff contends that even if a motion to quash 

qualifies as an “other pleading,” in this case the proposed motion 

to quash “was never submitted.” Plaintiff correctly states that at 

the February 8, 2021 hearing, the trial court did not have a copy 

of the proposed motion to quash. But the record reflects delivery 

of a courtesy copy to the trial court the following day, as plaintiff 

admits. The record also reflects defendant’s earlier, apparently 

unsuccessful, efforts to file the proposed motion to quash, 

beginning on January 1, 2021.

We conclude that defendant substantially complied with 

the requirement that a proposed pleading accompany a motion to 

vacate a default. We are aware that in other cases finding 

substantial compliance, the “answer or other pleading” had been 

lodged with the court by the day of the hearing. (Carmel, supra, 

175 Cal.App.4th at p. 403 [“We do not know whether defendants’

counsel inadvertently failed to accompany the motion with their

proposed answer, or whether the proposed answer simply did not 

find its way into the court’s file. But we perceive no reason why 

the court could not have reviewed the proposed answer proffered 

at the hearing and ordered it filed.”]; see also Rodriguez, supra,

234 Cal.App.4th at p. 733 [substantial compliance where “verified 
14

discovery responses were served the day before the hearing and 

copies were lodged with the court the day of the hearing”].)

The circumstances here are different. The record shows 

counsel tried to file the motion to quash before the hearing.

Moreover, the hearing was conducted remotely, while pandemic 

protocols were in place, so counsel was not in a position to 

present a copy of the motion to quash to the trial court at the 

hearing. Further, the court did not decide the motion to vacate

the default until February 22, 2021, well after delivery to the 

court of a copy of the motion to quash on February 9, 2021. 

Plaintiff identifies no prejudice suffered from delivery to the court

one day after, rather than at, the hearing. The substantial

compliance standard was met.

2. The Causation Issue

Because defendant’s motion to vacate the default judgment 

was timely and in proper form, the trial court was required to 

vacate the default judgment “unless the court finds that the 

default . . . was not in fact caused by the attorney’s mistake, 

inadvertence, surprise, or neglect.” (§ 473(b).)

a. The law

There is a split of authority on whether the attorney must 

be the sole cause of the default in order to rely on the mandatory 

relief provision. Some cases say mandatory relief is available 

only if the party against whom the judgment is taken is “totally 

innocent of any wrongdoing and the attorney was the sole cause 

of the default or dismissal.” (Lang v. Hochman (2000) 

77 Cal.App.4th 1225, 1248; id. at p. 1252 [“When deciding 

whether to grant relief, the court must resolve the issue whether 

attorney actions, or the misconduct of the parties themselves, 

actually caused the default or dismissal.”].) 

Other cases say that mandatory relief is available unless 

the party is guilty of intentional misconduct. (See, e.g.,
15

SJP Limited Partnership v. City of Los Angeles (2006) 

136 Cal.App.4th 511, 520 [“Because [the attorney’s] declaration 

indicates that his mistake or neglect caused [the plaintiff’s]

dismissal and because the evidence does not support a finding of 

intentional misconduct on [the plaintiff’s] part, we find that the 

trial court erred in not granting [the plaintiff] mandatory relief 

from dismissal.”]; Benedict, supra, 87 Cal.App.4th at pp. 930, 932

[“if the Lang court meant to hold that relief is precluded when a 

default is caused in part by a mistake or error of judgment by the 

client and in part by attorney oversight or neglect, we simply 

disagree”; “Inasmuch as [the defendants’] counsel submitted 

declarations indicating ways in which counsel’s mistake or 

neglect caused the entry of default, the trial court properly 

granted the requested [mandatory] relief, even though [a 

defendant’s] mistakes were an additional cause in fact of the 

entry of default.”].)

We need not enter the fray on this point, because there is

no substantial evidence to support plaintiff’s contention that 

defendant caused the entry of default.

b. This case

We have described the record in detail in the Facts section, 

including the evidence plaintiff relies on for his claim that the 

attorney, Mr. Grbic, was not solely at fault (ante, at pp. 6–7). At 

best, the record shows defendant’s executives may have had a 

limited awareness of the lawsuit. That is not enough to show 

defendant caused the default to be entered.

Plaintiff insists the record shows Mr. Grbic was “simply 

covering up for his client.” But the only evidence plaintiff cites

are a few e-mails after the default was entered, showing a copy to 

defendant’s CEO. As already described, these were e-mails 

disclosing that a default had been entered; showing transmission 
16

of a copy of the complaint, including a statement by plaintiff’s 

counsel that “I don’t think we will be waiting for you to retain 

counsel much longer,” and a statement by Mr. Grbic that “[i]f we 

have to litigate, we’re prepared to bring a full set of 

counterclaims.” Plaintiff also cites e-mails (not showing a copy to

the CEO) from Mr. Grbic to counsel for plaintiff saying “we’re

also mindful of time to file and not going to put up with footdragging” on a settlement offer, and “the board appears to be very 

interested in litigation to obtain the data needed for the other 

cases against [other persons].”

In sum, there is no evidence defendant caused the entry of 

default, which occurred on August 2, 2019, before any of the email correspondence plaintiff cites. Nor can we reasonably infer,

from that correspondence, that (as plaintiff argues), defendant

“made the deliberate decision to not respond to the Complaint to 

try to settle at a discount instead of seeking relief from default.”

Plaintiff contends the question whether the attorney 

caused the default “is in part a credibility determination,” citing 

Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 915. But in that 

case the trial court actually made a credibility determination,

and there was evidence to support it. (Ibid.) Here, the court did 

not explain its reasoning and did not make any credibility

finding, and we find no reason to discredit Mr. Grbic’s 

declaration.

On a final note, we do not describe in detail or consider the 

parties’ contentions regarding the reliability of the proof of 

service of the summons and complaint. That will be a matter for 

the trial court to decide on remand. It is sufficient to say the 

dispute does not appear to be manufactured for purposes of delay 

because in November 2020, outside defense counsel expressed his 
17

belief that the proof of service was false and, whether or not 

counsel was correct, he apparently had legitimate reasons to 

think so.

DISPOSITION

The order denying defendant’s motion for relief under 

section 473(b) is reversed. The cause is remanded to the trial 

court with directions to vacate its order and to enter a new order 

granting the motion for relief; vacating the entry of default and 

vacating the default judgment; recalling and quashing the writ of 

execution, vacating the levy, and ordering return of the 

$63,739.79 to defendant. Defendant shall recover its costs on

appeal.

GRIMES, J.

WE CONCUR:

STRATTON, P. J. 

VIRAMONTES, J.