Metropolitan News-Enterprise


Friday, March 25, 2005


Page 1


Foreign Lawyer’s Miscue Requires Relief From Default


By a MetNews Staff Writer


The California law requiring that a default be set aside if the defendant’s attorney declares under penalty of perjury that the failure to respond was the product of the lawyer’s mistake or neglect applies where the attesting lawyer is not admitted in this state but practices in a foreign jurisdiction, the Sixth District Court of Appeal ruled yesterday.

“We have concluded that granting relief in such circumstances is consistent with both the language and the remedial purpose of the statute,” Code of Civil Procedure Sec. 473(b), Presiding Justice Conrad Rushing wrote for the court.

The decision upholds a Santa Clara Superior Court ruling setting aside a default that was entered against a Portuguese couple in an action concerning some real estate they purchased in San Jose.

The plaintiff, Maria Rodrigues, brought a partition action against Fernando Joaquim and his wife, Maria Machado. Rodrigues, claiming an undivided half interest in the property and seeking to force a sale, had the defendants served in Portugal under the Hague Convention and obtained a default judgment after they failed to respond.

In support of their motion to set aside the default and judgment, the defendants attached an affidavit from their Portuguese attorney. The lawyer explained that he had represented the defendants in a number of matters over the years, that he prepared a response denying the allegations of the complaint—in Portuguese with a certified English translation—and that he mailed it to the court.

“With this response,” he declared, “I assumed the matter was taken care of and that I would receive further instructions from the Court.  I did not, however, receive anything and I, therefore, assumed that I did not have to do anything further.”

He did not learn of the default until months later when he was contacted by a California attorney retained by the defendants.

Rodrigues’ lawyer argued that the Sec. 473(b) did not apply because the Portugese attorney was not admitted, and legally could not practice, in California.

Judge Socrates Manoukian, however, said the word “attorney,” as used in the statute, includes out-of-state lawyers. The trial judge reasoned that “the policies about granting relief in this type of case are the same whether the attorney is a California attorney or a foreign attorney.”

The judge set aside the default, imposing sanctions on the Portuguese attorney in the amount of $250 pursuant to the statute.

The trial judge was correct, Rushing wrote for the Court of Appeal. Nothing in the statutory language limits its effect to California attorneys, he noted, and he rejected the plaintiff’s contention that such limitation is implied given the fact that out-of-state attorneys cannot be disciplined for professional misconduct in California.

He reasoned:

“In both lay and professional usage...‘attorney’ ordinarily refers to a person who is entitled to practice law, even if the entitlement was granted, and may only be exercised, outside of California.”

The fact that the defaulting attorney cannot be disciplined in California does not compel a different result, he went on to say, especially given the Legislature’s express direction that the setting aside of the default not be conditioned upon payment of the sanctions authorized by the statute.

“[W]e agree with the trial court that the Legislature’s goal of preventing innocent clients from losing their day in court due to their attorney’s professional error should not be circumvented because the attorney cannot be compelled by the specter of California disciplinary proceedings to comply with a California court order,” Rushing wrote.

The case is Rodrigues v. Superior Court (Joaquim), H025985.


Copyright 2005, Metropolitan News Company