WANDA E. EURASQUIN V. ZAZA PRIME LLC, et al.

CASE NO.: 24NWCV04598 HEARING: 09/03/2026 @ 9:30 a.m. #25 TENTATIVE ORDER Defendant Madelyn Martinez's motion to set aside default is GRANTED. The default entered on December 26, 2025, is set aside and vacated. Defendant Madelyn Martinez is granted leave to file an Answer by October 2, 2026, end of business day. Moving party(s) to give notice. Defendant Madelyn Martinez moves for an order setting aside the default and default judgment previously entered in this action on December 26, 2025, and for leave to file an Answer.

Background

On November 22, 2024, Plaintiff Wanda E. Eurasquin ("Plaintiff") filed a complaint against Defendants Zaza Prime LLC, Corey Simmons, and Madelyn Martinez alleging causes of action for: (1) breach of contract, (2) international misrepresentation, (3) false promise, (4) fraud in contract formation, (5) constructive fraud, (6) unjust enrichment, and (7) alter ego.

On June 3, 2025, Plaintiff served Defendant Madelyn Martinez ("Defendant") by substituted service. On December 26, 2025, the Court entered default against Defendant. Defendant now seeks to set aside the default and filed the instant motion on June 5, 2026. Counsel also substituted into the action on behalf of Plaintiff. On August 18, 2026, Plaintiff filed an opposition. On August 26, 2026, Defendant filed a reply.

Legal Standard

"The court may, upon any terms as may be just, relieve a party or 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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken." (Code Civ. Proc., Sec. 473, subd. (b).)

Request for Judicial Notice

Defendant requests judicial notice of the demurrers filed by Defendant and Defendant Madelyn Martinez and the Certificate of Mailing of Minute Order filed September 9, 2025 and dated September 11, 2025. The Court takes judicial notice of these documents pursuant to Evidence Code section 452 subdivision (d).

Analysis

Defendant moves for an order setting aside the December 26, 2025, default due to an invalid Clerk's Certificate of Mailing on the order overruling the demurrer heard on September 9, 2025. The Certificate only identifies Plaintiff's address and lacks any address for Defendant, thereby depriving Defendant of any notice by the Court.

Defendant both admits to ignorance of the law regarding a requirement to respond, and distraction caused by stating a new job and later funerals for both Defendant's grandmother and aunt. Defendant only learned of the default upon contacting Plaintiff's counsel on April 20, 2026. Defendant seeks relief on grounds of surprise.

Plaintiff opposes the motion on grounds of untimeliness, actual notice, a dilatory delay in responding, and lack of a showing of mistake, inadvertence or excusable neglect. Defendant in reply reiterates the lack of notice position and denies any actual notice.

"'[S]urprise,' as used in section 473, refers to some condition or situation in which a party ... is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against." (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206 [internal quotations and citation omitted].) Defendant's position under Code of Civil Procedure section 473, subdivision (b) appears based on mistake, rather than surprise. Ignorance of the law is not a basis for relief. (Ibid.)

On a threshold note, Defendant Corey Simmons was the only identified party to the demurrer. Further, the instant motion was timely filed five months and 10 days from the date of entry of the December 26, 2025, default. Defendant, apparently acting in pro per at the time, is not entitled to mandatory relief. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1251-1252; see Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 727.)

Where conduct by the party acting in pro per represents a deliberate, strategic decision, public policy vests the court with discretion to find no basis for relief. (Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 929-930; See Lang v. Hochman, supra, 77 Cal.App.4th at pp. 1251-1252.) To the extent the surprise position relies on ignorance of the law and distraction, such argument lacks a sufficiently specific showing justifying the delay from December 26, 2025, through the June 5, 2026, filing date. (McClain v. Kissler (2019) 39 Cal.App.5th 399, 424.)

As for lack of notice, the court also finds the position lacking. Defendant presents no dispute as to the validity of service, and the identified address on both the mailed proof of service and default application. The declaration of Defendant is vague as to how Defendant became aware of the action given the lack of any valid notice from the Court. Defendant otherwise tacitly admits to awareness and distraction, which therefore negates any denial of actual notice under the standard for Code of Civil Procedure section 473.5.

Notwithstanding, consistent with the September 9, 2025, order on the demurrer of Corey Simmons, the court ordered service by the clerk on all parties. The Clerk's Certificate of Mailing lacks an address for Defendant. The court therefore finds no notice of the September 9, 2025, order on the demurrer.

"It is well settled that a court has the inherent power to correct [a] clerical error in its judgment so that the judgment will reflect the true facts. [Citation.] The power of a court to correct clerical mistakes in judgments is also a statutory power pursuant to section 473. . . . A clerical error in the judgment includes inadvertent errors made by the court which cannot reasonably be attributed to the exercise of judicial consideration or discretion." (Estate of Douglas (2022) 83 Cal.App.5th 690, 695 [internal citation and quotations omitted]; Code Civ. Proc., Sec. 473, subd. (d) ["The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order"].)

Assuming Defendant relied upon a favorable ruling on the unopposed demurer thereby allowing further time to respond (albeit based on an assumed appearance by Simmons on the hearing), the court concludes any notice regarding an obligation to answer extended pending notice. Accordingly, the Court grants the motion to set aside default.

Conclusion

Defendant Madelyn Martinez's motion to set aside default is GRANTED. The default entered on December 26, 2025, is set aside and vacated. Defendant Madelyn Martinez is granted leave to file an Answer by October 2, 2026, end of business day. Case Number: 25NWCV00805 Hearing Date: September 3, 2026 Dept: D NOWAK V. TRAVEL INN, et al.