Thursday, April 16, 2020
By a MetNews Staff Writer
The mandatory-relief provision of Code of Civil Procedure §473(b), based on an attorney’s affidavit of fault, applies only where an error by the attorney caused a clerk’s entry of default, not where counsel somehow bore responsibility for a court’s subsequent granting of a default judgment, the Fifth District Court of Appeal held yesterday.
That distinction was crucial in the case of Jose Luis Martinez’s successful appeal from an order setting aside a default and default judgment which he obtained against Krishnaswamy Sidharaju, who had borrowed $38,853.07 from him which they did not repay.
When the defendant failed to answer the complaint which Martinez had filed in Tulare Superior Court, the plaintiff filed a request to enter default on May 22, 2018, which was entered that day. Sidharaju engaged the services of an attorney, Vonn R. Christenson of Porterville, on June 15, 2018.
A default judgment was entered on Jan. 3, 2019, which, with costs and interest amounted to $46,799.91.
On February 8, 2019, Sidharaju, through his counsel, filed a motion for relief from default, and a hearing on the motion was held on March 11, 2019. Tulare Superior Court Judge Melinda Myrle Reed granted the motion, holding that discretionary relief—which she would have granted—was unavailable because a motion seeking it was not made within six months of the entry of default, but the fact that a timely motion was not made was the fault of Christenson.
The mandatory-relief proviso, based on attorney error, was therefore applicable, she ruled.
Fifth District’s Reversal
The appeals court, in an unpublished “By the Court” opinion signed by Acting Presiding Justice Donald R. Franson Jr. and Justices M. Bruce Smith and Mark W. Snauffer, reversed, explaining:
“This appeal presents a question of statutory interpretation involving section 473(b)’s provision for mandatory relief based on an affidavit of attorney fault. The text of that provision states the court shall vacate the ‘resulting default’ or the ‘resulting default judgment…unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (§ 473(b), italics added.) We give the italicized phrase ‘the default’ its plain meaning and conclude it means the default entered by the clerk—it does not mean the default judgment.
“Applying this literal interpretation to the facts of this case, we conclude defendant does not qualify for relief under the mandatory relief because the May 2018 default ‘was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.’ (§ 473(b).) The absence of any causal link is established by the undisputed fact that the default was entered before the attorney was retained. The practical effect of this statutory interpretation is that when a default is entered without attorney fault, the period for obtaining relief under section 473(b) cannot be expanded by bootstrapping the six-month period for mandatory relief from an attorney’s error onto the period in which a hypothetical motion for relief from the entry of default could have been filed.”
Sequence of Events
The court went on to say:
“This sequence of events compels a finding that the default was not in fact caused by any mistake, inadvertence, or neglect of defendant’s attorney. To be a cause in fact, an act must precede the event.”
The case is Martinez v. Sidharaju, F079636.
Christenson continued to represent Sidharaju on appeal. Fresno Amy R. Lovegren-Tipton acted for Martinez, as she did in the Superior Court.
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