Metropolitan News-Enterprise


Monday, July 10, 2017


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Court of Appeal Declares:

Affidavit of Fault From Out-of-State Lawyer Suffices

Justice Flier Says Default Must Be Set Aside Under Mandatory Relief Statute, Spurning Argument That Maryland Lawyer, Unable to File a Responsive Pleading, Could not Have Caused the Default


By a MetNews Staff Writer


The Court of Appeal for this district has affirmed an order granting relief from default to a defendant who did not file an answer or otherwise plead to a complaint for unpaid rent, holding adequate an affidavit of fault from a Maryland attorney.

It rejected the plaintiff’s protest that the out-of-state lawyer, who was not licensed to practice in California, could not, lawfully, have filed a responsive pleading here.

Justice Madeleine Flier of Div. Eight wrote the opinion, filed Thursday and not certified for publication. It affirms an order by then-Los Angeles Superior Court Judge Michelle Rosenblatt, now a private judge.

The defendant, Marcie Stollof, is a resident of Maryland. She was sued by United Grand Corporation, along with Malibu Hillbillies, a company in which she is a principal, with an address both in Malibu and Lutherville, Maryland.

The action was for unpaid rent in connection with a repudiated lease.

In issue before the appeals court was the effect of a declaration by David Cohen, an attorney licensed to practice in Maryland.

Affidavit of Fault

The declaration was pursuant to California Code of Civil Procedure §473(b), which provides:

“[T]the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any…default judgment… entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”

The plaintiff asserted that Cohen could not, in fact, have caused the default because he could not have acted to prevent it.

Flier Rejects Contention

Rejecting the contention, Flier wrote:

“Appellant argues that because Cohen was not licensed to practice law in California, and ‘could not act without the assistance of [a] California attorney’ ‘there is nothing he could have done...that...would have prevented the default’ In other words, because Cohen could not, for example, file a demurrer or answer or otherwise appear on respondent’s behalf without the aid of a California attorney, appellant claims Cohen could not have been responsible for the default.

“We disagree. Even without a California license, Cohen could have performed the tasks he lists in his affidavit, including researching respondent’s obligations following receipt of the complaint, coordinating with California counsel, and ensuring that respondent filed a timely response. While those actions would not necessarily have prevented the default (respondent may have rejected the advice, or California counsel may have made additional errors), the absence of those actions all but guaranteed it….Here, while Cohen’s conduct was not necessarily the only cause of the default, it was certainly a proximate cause.”

Cites 2005 Opinion

Flier relied on the Third District Court of Appeal’s 2005 decision in Rodrigues v. Superior Court for the proposition that an affidavit of fault “need not come from an attorney licensed in California.”

The lawyer in that case, unlike Cohen, did not recognize his impotence to file a responsive pleading in this state, and attempted to do so. There, the defendants, residents of Portugal, were served in that nation with a summons and complaint relating to an action brought in California, and turned the matter over to an attorney licensed to practice in Portugal, but not here; he mailed to the Superior Court what the Third District described as a “Portuguese legal response denying the allegations of the complaint,” following it up with an English translation of the document.

A default was entered, and the lawyer declared in his §473(b) affidavit that he thought his answer sufficed.

The Third District’s opinion declares that an affidavit of fault might be “sufficient to entitle the client to relief if it is filed by a person licensed to practice law in any jurisdiction.”

Cohen Found Untruthful

Cohen’s affidavit said he represented both Stollof and Malibu Hillbillies. However, Rosenblatt found that Cohen’s assertion that he represented the company was “not credible,” citing evidence that Malibu Hillbillies was separately represented, and denied relief.

Her action was affirmed by Div. Eight on Jan. 19. Flier wrote:

“We hold that the trial courts finding that Cohen did not represent appellant was supported by substantial evidence.”

In its appeal from the order granting Stollof relief from default, United Grand Corporation argued that in light of Rosenblatt’s finding “that Cohen was a liar,” she should have granted broad discovery so it could be determined if he actually was the cause of Stollof’s default.

Flier responded:

“We reject appellant’s characterization of the court’s ruling. Regardless, given the policy favoring addressing cases on the merits, the court was within its discretion not to delve further.”

Thursday’s decision came in United Grand Corp. v. Stollof, B270076.

The lawyers on appeal were Cyrus Sanai, for United Grand and D. Joshua Staub for Stollof.


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