Masaoka v. Herrera

File 1/31/07  Masaoka v. Herrera CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

                        Appeal from an order of the Superior Court of Orange County, James M. Brooks, Judge.  Reversed and remanded with directions.

                        Snell & Wilmer and Richard A. Derevan for Defendants and Appellants.

                        Arther Masaoka, in pro. per., for Plaintiff and Respondent.

*                *                *

                        Samuel Herrera and his son, Arturo Herrera, appeal from the order denying their motion under Code of Civil Procedure section  473^[1] to vacate the judgment against them and in favor of Arther Masaoka.  They contend the trial court erroneously based its denial on its conclusion that they lacked a meritorious defense.  Alternatively, they contend the default judgment is void for two independent reasons:  (1) they had filed an answer and (2) Masaoka failed to serve a statement of damages.  We find the trial court made an erroneous legal assumption, resulting in an abuse of discretion.  Accordingly, we reverse and remand.

FACTS

                        On November 12, 2003, Masaoka filed a complaint against the Herreras for assault and battery, alleging they hit him in the head with a brick.  The complaint prayed for general, special, and punitive damages in unspecified amounts.  The Herreras were served with the complaint in February 2004.

                        In March 2004, Arturo and Samuel each filed a general denial.  As affirmative defenses, each alleged Masaoka was trying â€