Friday, January 10, 2020
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Court of Appeal:
Mandatory Relief Statute Must Be Restricted to Defaults, Dismissals
Justice Sheppard Says Code of Civil Procedure §473(b) Cannot Be Invoked by Parties That Suffer Adverse Judgment After They Fail to Show Up for Trial After Receiving Notice
By a MetNews Staff Writer
Code of Civil Procedure §473(b), which provides for mandatory relief where an attorney executes an affidavit of fault, applies, on its face, only to defaults, default judgments, and dismissals, the Court of Appeal for this district said yesterday, rejecting the contention that it should be applied to “analogous” circumstances.
The opinion by Justice John Sheppard Wiley of Div. Eight affirms a judgment by Los Angeles Superior Court Judge Richard Fruin Jr. in an interpleader action.
Two parties with liens on the recovery in a personal injury action—Spine Care & Orthopedic Physicians and C&C Factoring Solutions—had notice of the trial but did not show up. Proceeding in their absence, Fruin heard evidence, and ordered a judgment that was adverse to them.
Through new counsel, they sought an order vacating the judgment, under §473(b). Fruin denied the motion.
Wording of Statute
“When lawyers make mistakes, they try to turn to subdivision (b) of section 473 for relief,” Wiley noted. He quoted the mandatory-relief portion, adding emphasis:
“[T]he court shall...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, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”
The jurist wrote:
“Spine Care and C&C argue for a more sweeping application of this subdivision that would expand the wording about defaults, default judgments, and dismissals to all ‘analogous’ situations. There is some older case law support for this ‘analogous’ approach. But more recent cases have hewed to the statute as the Legislature wrote it. We join with these more recent cases.”
He noted that Presiding Justice Paul Arthur Turner of this district’s Div. Seven, since deceased, “thoroughly canvassed the cases and the arguments” in his 2017 opinion in The Urban Wildlands Group, Inc. v. City of Los Angeles.
Plain Language
Expressing agreement with that opinion, as well as the analysis in the Weil and Brown treatise on civil procedure, Sheppard said:
“[T]he plain language of the statute is unambiguous and controlling. It would be a disservice to embroider this language with freeform extensions to ‘analogous’ situations. Lawyers are pretty good at inventing analogies. This provision sees heavy use in trial courts. In the long run, everyone benefits from clear, exact, and predictable rules of civil procedure. This statute, as written, gives a clear, exact, and predictable rule. The Legislature can amend it if the coverage is wrong. Until the Legislature acts, the statute’s words settle the matter.”
The action in interpleader was brought by downtown Los Angeles attorney Kamyar R. Shayan, who settled his client’s personal injury claim with State Farm for $30,000, its insured’s policy limit. About $19,365 remained after he deducted his own contingency fees, and there were competing claims totaling $93,754.
Shayan represented himself on appeal. His client, Angelica Mazariegos, a defendant in the interpleader action, did not file an appellate brief.
Evan D. Marshall and Ian Herzog of the Santa Monica law firm of Herzog, Yuhas, Ehrlich & Ardell acted for Spine Care and C&C.
The case is Shayan v. Spine Care and Orthopedic Physicians, 2020 S.O.S. 102.
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