In Wilson v. Goldman (1969) 274 Cal.App.2d 573, defendant answered the complaint and was properly served with notice of trial, but when trial was called neither defendant nor his attorney appeared. (Id. at p. 576.)
The court entered defendant's default, and left it for plaintiffs' counsel to "'prove up damages at some future date.' No evidence was taken, no trial was held and no continuance was granted. The case obviously was removed from the trial calendar." (Ibid.)
Several months later, plaintiffs filed a "'Memorandum for Setting for Hearing (uncontested matter)'" describing the hearing as one to "'Prove up Damages.'" (Ibid.)
Defendant was not served with the documents or given notice of the hearing, at which time the trial court entered a default judgment for plaintiffs. Defendant subsequently filed a motion to set aside the default judgment under section 473, primarily based on counsel's affidavit explaining he did not appear at the trial because he was hospitalized having just undergone major surgery.
The trial court granted the motion and plaintiffs appealed. (Wilson, supra, 274 Cal.App.2d at p. 575.)
In affirming the trial court, Wilson concluded that regardless of whether the attorney's affidavit explaining his absence supported the trial court's order, the default judgment was properly set aside because it was void. (Wilson, supra, 274 Cal.App.2d. at pp. 577-578.)
Wilson explained a default may not be entered when "an answer is on file, whether the defendant does or does not appear at the time the action is called for hearing. Where the defendant who has answered fails to appear for trial 'the plaintiff's sole remedy is to move the court to proceed with the trial and introduce whatever testimony there may be to sustain the plaintiff's cause of action.' In such case a plaintiff is entitled to proceed under the provisions of . . . section 594, subdivision 1, and he may do so in the absence of the defendant provided the defendant has been given . . . notice of the trial." (Id. at p. 576.)
Wilson went on to explain, "Where a defendant has filed an answer, neither the clerk nor the court has the power to enter a default based upon the defendant's failure to appear at trial, and a default entered after the answer has been filed is void , and is subject to expungment at any time . . . . Here the plaintiffs did not proceed to trial on the date set and for which notice of trial had been served. Instead they obtained an entry of defendant's default beyond the power and authority of the court to grant." (Id. at p. 577.)