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Filed 6/27/23 City and County of San Francisco v. Bato 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

CITY AND COUNTY OF SAN 

FRANCISCO et al.,

Plaintiffs and Respondents,

v.

ANGELICA BATO,

Defendant and Appellant.

 A164141

 (City & County of San Francisco

 Super. Ct. No. CGC-18-564770)

Defendant Angelica Bato appeals a judgment entered after the trial 

court denied her motion to set aside entry of default. She brought the motion 

more than a year after default was entered, and the trial court denied it on 

the grounds that the lengthy delay showed a lack of diligence and that Bato 

had not shown she had a meritorious defense to the action. On appeal, Bato 

raises a variety of arguments for why the default should not have been 

entered, but she does not address the bases for the trial court’s decision. We 

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The City and County of San Francisco (the City) brought this action 

against Bato and others on March 5, 2018, alleging they owned or operated 

an illegal gambling establishment and asserting causes of action for red light 
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abatement (Pen. Code, §§ 11225–11235), public nuisance, non-compliance 

with the City’s building and planning codes, and unlawful business practices 

(Bus. & Prof. Code, §§ 17200–17210). Bato was served with the complaint by 

mail, and her counsel, Andrew Dimitriou, acknowledged receipt of the 

summons and complaint on February 26, 2019. The City inquired repeatedly 

about when Dimitriou would file Bato’s answer; Dimitriou told the City’s 

counsel on multiple occasions that he would be filing a verified answer for 

Bato, and on April 17, 2019 he sent a copy of an answer to the City’s counsel. 

He did not, however, file the answer with the court. The caption indicated it 

was filed by “Attorneys for Defendant Angela Bato,” and the first page of the 

answer began, “Defendant, Angela Bato, . . . hereby answers the Complaint,” 

but the verification was signed “Angelica Bato.” (Italics added.) 

A case management conference was scheduled for June 12, 2019, but on 

May 22, 2019, the trial court delayed the conference until July 17 “to obtain 

an answer[] from, or enter default[] against, defendant[] ANGELICA C 

BATO.” In a June 26, 2019 case management statement, the City’s attorney 

explained that Dimitriou had not responded to multiple emails asking 

whether he intended to file an answer, and further explained that “[a]s a 

professional courtesy I have not sought a default against A. Bato yet.” The 

same day, Dimitriou told the City’s counsel he would be out of the office until 

July 5 and would file an answer upon his return. 

The trial court cancelled the scheduled July 17, 2019 case management 

conference and issued an order to show cause directing the City to appear on 

August 27, 2019 to show cause why the action should not be dismissed, or 

sanctions imposed for failure to obtain an answer from, or enter default 

against, Bato. 
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Dimitriou informed the City on July 12, 2019 that he had filed the 

answer, enclosing another copy of the answer, but the answer did not appear 

on the court’s docket. The City’s counsel emailed Dimitriou on July 19 to tell 

him the answer was not on the docket and asking if it had been properly 

filed. He wrote again July 29, reminding Dimitriou of the order to show 

cause and telling him he would seek default if the answer was not filed 

immediately. The next day, Dimitriou forwarded a copy of an email he 

received from the filing service, which contained this message from the court

clerk: “Rejected because there is still confusion as to who the Answer is being 

filed on behalf of. Pleading indicates Angela Bato, whereas the Verification 

portion signed by the actual defendant indicates ANGELICA Bato. Name of 

defendant must be consistent throughout document.” Dimitriou told the 

City’s counsel he would correct the answer and refile it that day, but he did 

not do so. 

The City filed its response to the order to show cause on August 22, 

2019, explaining that as a matter of professional courtesy, and in light of 

Dimitriou’s repeated representations that he would file the verified answer

on Bato’s behalf, the City had not previously filed a default. The same day, 

the City filed a request for entry of default, and the court clerk stamped the 

front page of the request, in a box on the top right labeled “FOR COURT USE 

ONLY,” with the following: “DEFAULT ENTERED AS REQUESTED.” 

Another box at the bottom of the front page had boxes labeled “Default 

entered as requested on (date)” and “Default NOT entered as requested (state 

reason).” These boxes were left blank. The same day, the request for default 

was served on Bato by mail both at an address that was apparently her home

address and at her business address, and it was also electronically served on 

her counsel, Dimitriou. 
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Dimitriou emailed the City’s counsel on October 30, 2019 asking to talk 

with him about the case, but he cancelled the scheduled conversation and did 

not respond to the City’s invitation to reschedule it. 

Bato obtained new counsel, whom she first approached for 

representation in June 2020. She filed a motion to set aside the default on 

November 24, 2020, five months after she contacted her new counsel and 

more than 15 months after the default was entered. She made the motion on 

equitable grounds, asserting that the court clerk acted illegally in rejecting 

the answer she presented for filing in July 2019 and that her former counsel 

had “totally failed to represent” her, thus establishing extrinsic fraud or 

mistake. And, she asserted, the City’s counsel acted wrongfully in seeking a 

default under the circumstances. She asked the court to deem her answer 

filed. 

The declarations supporting Bato’s motion are conspicuously vague as 

to the time she learned of the default. In her declaration, Bato averred 

Dimitriou, her initial counsel, assured her the case was under control; that he 

told her he would file the answer on her behalf; that he never told her the 

answer had been rejected or that default had been entered; and that she did 

not learn of the default until after she retained new counsel, whom she 

approached for representation because she was having difficulty 

communicating with Dimitriou. For his part, Bato’s new counsel declared 

that Bato first approached him in June of 2020 and told him she was having 

problems communicating with Dimitriou about the case; that he contacted 

Dimitriou, who promised to send the case files but did not do so; that 

Dimitriou led him to believe the case was under control and did not mention 

the default; and that he learned of the default (at some unspecified time) 
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when his office reviewed the online register of actions and downloaded 

various documents from the court. 

The trial court denied the motion, ruling that even assuming 

Dimitriou’s behavior amounted to a complete abandonment of the attorneyclient relationship, Bato failed to satisfy two of the three prongs of the test for 

equitable relief from default: she did not show she had a meritorious defense 

to the action, and she did not act with diligence in seeking to set aside the 

default once it was discovered. 

On June 4, 2021, the trial court entered a default judgment, from which 

Bato has appealed. 

DISCUSSION

A party may move for relief from default on statutory or equitable 

grounds. Section 473, subdivision (b) of the Code of Civil Procedure 

authorizes such relief based on “mistake, inadvertence, surprise, or excusable 

neglect” if a motion is brought within six months from entry of default. (See 

Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 (Rappleyea).) Even after the 

time for a statutory motion has passed, however, a court may grant relief 

from default on equitable grounds, for instance for extrinsic fraud or extrinsic 

mistake—“a term broadly applied when circumstances extrinsic to the 

litigation have unfairly cost a party a hearing on the merits.” (Id. at p. 981; 

accord, Pulte Homes Corp. v. Williams Mechanical, Inc. (2016) 2 Cal.App.5th 

267, 275 (Pulte Homes).) Bato’s motion was brought on equitable grounds. 

We review the trial court’s denial of a motion for equitable relief from a 

default for abuse of discretion (Rappleyea, at p. 981; County of San Diego v. 

Gorham (2010) 186 Cal.App.4th 1215, 1230), reversing only if the decision is 

“ ‘ “so irrational or arbitrary that no reasonable person could agree with it” ’ ” 

(Mechling v. Asbestos Defendants (2018) 29 Cal.App.5th 1241, 1249). 
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In considering a request for relief from default on equitable grounds, 

courts apply a three-part test: “first, the defaulted party must demonstrate it 

has a meritorious case; second, it must articulate a satisfactory excuse for not 

presenting a defense to the original action; and third, the moving party must 

demonstrate diligence in setting aside the default once it was discovered.” 

(Lee v. An (2008) 168 Cal.App.4th 558, 566; accord, Pulte Homes, at p. 275.)1 

The party seeking relief has the burden to show that each aspect of this test

is met. (Hudson v. Foster (2021) 68 Cal.App.5th 640, 664.)

The City did not dispute below that the second prong was satisfied, 

conceding that Dimitriou’s “presence as [her] attorney has been sorely lacking 

throughout this case, especially when it came to filing the verified answer.” 

(See People v. One Parcel of Land (1991) 235 Cal.App.3d 579, 584.) But, the 

City argued and the trial court agreed, Bato made no showing either that she 

had a meritorious defense or that she exercised diligence once the default was 

discovered. On appeal, Bato addresses neither point, except to assert,

without authority, that any lack of diligence in filing her motion was 

irrelevant. We note that she might have availed herself of the proposition 

that “[o]rdinarily a verified answer to a complaint’s allegations suffices to 

show merit.” (Rappleyea, supra, 8 Cal.4th at p. 983.) Because Bato verified 

the answer that was never filed, we will not rely on the first prong of the 

three-part test. 

1 Although there is some question whether this three-part test should 

be strictly applied where, as here, default judgment had not yet been entered 

when the court ruled on the motion for relief from default (see Rappleyea, 

supra, 8 Cal.4th at p. 982), Bato does not argue that as a general matter it is 

inappropriate to consider these factors when ruling on an equitable motion

for relief from entry of default. 
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With regard to the third prong, however, a review of the record 

confirms substantial evidence supporting the trial court’s conclusion that 

Bato failed to exercise diligence in setting aside the default. The evidence 

shows the City served not only her counsel, but Bato herself at both her home 

and business addresses, with the default request, but that she took no action 

in response for more than a year. (See Kramer v. Traditional Escrow, Inc.

(2020) 56 Cal.App.5th 13, 37 [diligence generally measured from when party 

discovers default].) More importantly, after she contacted her current 

counsel, who learned default had indeed been entered, she did not seek relief 

for five more months. The record therefore supports a conclusion that she did 

not exercise diligence in response to the default. (See Pulte Homes, supra, 

2 Cal.App.5th at pp. 271, 277–278 [four-and-a-half-month delay in seeking 

default showed lack of diligence].)

On appeal, instead of challenging the trial court’s findings, Bato raises 

several arguments for reversing the default judgment. First, she points to 

the fact that the clerk did not check the box at the bottom of the request for 

default indicating whether the default was entered as requested. From this, 

she contends that the clerk never actually entered the default. This 

argument fails. First, she did not raise it in the trial court and has therefore 

forfeited it. (See North Coast Business Park v. Nielsen Construction Co.

(1993) 17 Cal.App.4th 22, 28–29.) More fundamentally, this argument 

entirely ignores the fact that, at the top of the same page, the clerk stamped 

the words, “DEFAULT ENTERED AS REQUESTED.” We are satisfied that 

the clerk entered the default.

Second, Bato argues that the trial court clerk had a ministerial duty to 

file her answer despite the discrepancy in the names in the answer and 

verification, and the answer should therefore be deemed filed as of July 12, 
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2019. She relies on authorities indicating the clerk has a ministerial duty to 

accept a filing that substantially conforms to the applicable rules. (Rojas v. 

Cutsforth (1998) 67 Cal.App.4th 774, 776–778 [deeming complaint filed on 

date it was presented to clerk although declaration for court assignment was 

not signed and summons did not reflect address of correct division of court, 

contrary to local rules]; Mito v. Temple Recycling Center Corp. (2010) 187 

Cal.App.4th 276, 280 [clerk has ministerial duty to file complaint that 

complies with state requirements]; Carlson v. Department of Fish & Game

(1998) 68 Cal.App.4th 1268, 1276 [same]; United Farm Workers of America v. 

Agricultural Labor Relations Bd. (1985) 37 Cal.3d 912, 918 [petition for writ 

of review lacking required verification treated as filed when delivered to 

clerk, although matter could be dismissed later if defect not timely corrected]; 

Voit v. Superior Court (2011) 201 Cal.App.4th 1285, 1287–1288 [clerk has 

ministerial duty to file request for appointment of counsel that complied with 

rules of court and could not demand that party cite precedent supporting 

motion].) And, she contends, Dimitriou’s failure to file a corrected answer 

constitutes extrinsic fraud and mistake that justifies equitable relief. 

The authorities upon which Bato relies are distinguishable from the 

case before us. In most of those cases, the clerk’s wrongful rejection of a filing 

rendered an action untimely, barring an action entirely. That was not the 

case here. Nor did the clerk repeatedly refuse to accept a filing or improperly 

require an unrepresented party to cite precedent, as in Voit. Rather, the 

problem was a technical one that could easily have been remedied with no ill 

consequences to Bato by simply correcting the name on the answer and 

presenting it again for filing. 

For purposes of our analysis, we take no position on whether the clerk 

had a ministerial duty to file an answer that indicated on its face it was on 
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behalf of someone not named in the action, with a name inconsistent with the 

verification. (Cf. Kellar v. Hendey (1961) 189 Cal.App.2d 86, 87–88 [answer 

stricken if filed by stranger to action]; Cal. Rules of Court, rule 2.112(3) [each 

defense must state party asserting it if more than one party represented on 

pleading].) Even assuming error on the part of the trial court clerk, the facts

remain that the problem could easily have been resolved by changing the 

name on the first page of the answer, that Bato took no steps to do so, that on 

the same day the court entered the default, August 22, 2019, the request for a 

default was served on Bato herself at two addresses, as well as on her thenattorney, and yet she did not seek relief from the default for 15 months. We 

recognize the evidence that Dimitriou neglected his duties, but Bato was on 

personal notice of the default from August 2019 onward, and even after 

contacting a new attorney she waited five months before seeking relief. The 

trial court could reasonably conclude that Bato did not establish she acted 

diligently and that this extensive delay defeated her claim for equitable 

relief. 

Bato also contends the City took unfair advantage of the clerk’s error 

when it requested default. We fail to see how. The record indicates the City 

showed considerable forbearance in holding off on seeking default, doing so 

only when the trial court issued an order to show cause why the action should 

not be dismissed for its failure to do so. 

On this record, we cannot find the trial court’s decision was outside the 

bounds of reason, and we therefore find no abuse of discretion in denying 

equitable relief from default.

DISPOSITION

The judgment is affirmed. In the interests of justice, the parties shall 

bear their own costs on appeal.
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TUCHER, P.J.

WE CONCUR:

PETROU, J.

RODRÍGUEZ, J.

City & County of San Francisco et al. v. Bato (A164141)