Monday, March 18, 2019
Page 3
Court of Appeal:
Attorneys Declaration of Fault Must Come From Lawyer Who Caused Client’s Default
By a MetNews Staff Writer
The Court of Appeal for this district has affirmed the denial of a motion for relief from default, holding that although the granting of such a motion, if timely, is mandatory where accompanied by an attorney’s declaration of fault, that declaration must be executed by the lawyer who actually caused the default, not successor counsel.
Thursday’s unpublished opinion, by Justice Dorothy C. Kim of Div. Five, affirms orders by Los Angeles Superior Court Judge William F. Fahey. The judge denied a motion made on behalf of Deamonte Alford seeking relief from a default judgment for the forfeiture of $29,160 in currency, alleged to have been the proceeds from unlawful sales of marijuana.
Mandatory relief from the default judgment was sought by Alford’s present lawyer, J. David Nick, who was seeking resentencing of the client in connection with his felony conviction. In his own declaration, Alford said that his trial counsel, Sharen Ghatan, has assured him she would contest the forfeiture, sought by the Office of District Attorney, and that he had been unaware of the default until it was recently uncovered by Nick.
CCP Section
Nick submitted a declaration in support of the motion for relief from default, pursuant to the mandatory-relief provision in Code of Civil Procedure §473(b) which says:
“[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 (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client….”
Alford argued on appeal that in light of Nick’s declaration, relief was required. Kim wrote:
“[U]nder the mandatory provision of section 473, the required attorney affidavit must attest to ‘his or her mistake, inadvertence, surprise, mistake, or neglect....’ Attorney Nick, however, did not attest to his own mistake or neglect. Instead, at best, he suggested, based on information provided by claimant, that attorney Ghatan may have been responsible for the default judgment by failing to timely contest the forfeiture petition. Section 473, subdivision (b), however, does not provide for mandatory relief when an attorney’s fault is demonstrated by other means, such as a declaration from a subsequent attorney or a party. Thus, on its face, attorney Nick’s declaration did not satisfy the requirements for mandatory relief under section 473, subdivision (b).”
Purposes of Provision
Kim said the mandatory-relief provision is designed to relieve a faultless client from the consequences of an attorney’s faulty performance, place the responsibility on the lawyer, and deter the need for malpractice suits.
“Here, under claimant’s construction of the mandatory relief provision, the purpose of that provision would not be advanced because the burden of attorney Ghatan’s mistake or neglect, if any, would not be shifted to her because she did not admit under oath any fault or other responsibility for the default judgment,” she declared. “Instead, under claimant’s construction, he could be relieved from the default without any attorney accepting responsibility for its entry.”
Fahey did not abuse his discretion in denying relief under the discretionary-relief portion of §473(b), Kim said.
Acting Presiding Justice Lamar Baker wrote a brief concurring opinion.
The case is People v. Twenty-nine Thousand One Hundred Sixty Dollars, B285357.
Nick represented Alford on appeal. Deputy District Attorneys acted for the People.
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