Metropolitan News-Enterprise


Tuesday, August 1, 2023


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C.A. Reverses Unexplained Denial of Relief Pursuant to Attorney’s Affidavit of Fault

Grimes Says Motion to Quash Writ of Execution Is ‘Pleading’ for Purpose of CCP §473(b)


By a MetNews Staff Writer


The Court of Appeal for this district has reversed Los Angeles Superior Court Judge Barbara Ann Meiers’s denial of a motion to set aside a default and a default judgment, without explanation, notwithstanding the defendant’s timely presentation of an attorney’s affidavit of fault.

On Friday, the appeals court found that there was no valid basis for Meiers bypassing the mandatory-relief provision of Code of Civil Procedure §473(b).

In reaching its conclusion, articulated by Justice Elizabeth A. Grimes, Div. Eight determined that the procedural requirement of attaching a copy of the proposed “pleading” when making a motion for relief was met by the filing of motion to quash a writ of execution, although that is not among the allowable “pleadings” specified in Code of Civil Procedure §422.10.

Statutory Language

Sec. 473(b) says:

“[T]he 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, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”

Grimes wrote:

“The record shows the filing was timely and was accompanied by an attorney’s affidavit of fault. Thus, the only bases for denying the motion to vacate the default judgment were that the application was not ‘in proper form’ or that the default ‘was not in fact caused by the attorney’s neglect’….We have considered both possibilities and conclude neither justifies denying the motion.”

‘In Proper Form’

The jurist said that precedential decisions have construed the words “in proper form” to encompass the requirement of attaching a copy of the proposed pleading to the motion for relief. Acknowledging that §422.10 provides that “pleadings allowed in civil actions are complaints, demurrers, answers, and cross-complaints” and because Code of Civil Procedure §420 defines “pleadings” as “the formal allegations by the parties of their respective claims and defenses, for the judgment of the court,” she declared:

“We do not construe the meaning of the term ‘pleading’ in section 473(b) so narrowly.”

Grimes pointed out that in 1974, in Goddard v. Pollock, the Court of Appeal (the First District’s Div. Two) said, though in a different context, that a motion to quash service of summons “clearly constitutes a ‘pleading’ which, if timely filed, would have precluded the clerk from thereafter entering defendants’ default.”

She added:

“Further, in many cases involving dismissals (as opposed to default judgments) under the mandatory provision, the ‘other pleading proposed to be filed’ is a motion, or some other document that is not a ‘pleading’ as defined in section 422.10.”

Examples she provided were a motion for attorney fees and verified discovery responses being treated as pleadings. “Consequently, the term ‘pleading’ is not limited as plaintiff suggests,” Grimes said.

The jurist saw no merit in the plaintiff’s contention that the motion to quash was not actually presented because it was not in front of Meiers on the day of the hearing. Grimes explained: “The record shows counsel tried to file the motion to quash before the hearing.  Moreover, the hearing was conducted remotely, while pandemic protocols were in place, so counsel was not in a position to present a copy of the motion to quash to the trial court at the hearing.  Further, the court did not decide the motion to vacate the default until February 22, 2021, well after delivery to the court of a copy of the motion to quash on February 9, 2021.  Plaintiff identifies no prejudice suffered from delivery to the court one day after, rather than at, the hearing.  The substantial compliance standard was met.”

The plaintiff cited a case for the proposition that whether an attorney actually caused the default entails a credibility determination. In the present case, the defendant’s lawyer, John Grbic, admitted to laxity on his part.

“Here, the court did not explain its reasoning and did not make any credibility finding, and we find no reason to discredit Mr. Grbic’s declaration,” Grimes said.

It will be up to the trial court, on remand, to determine whether the summons and complaint had actually been served, as a process server insisted, she noted.

The opinion directs that the $63,739.79 the plaintiff garnered pursuant to a writ of execution be returned.

The case is Dollase v. Wanu Water, 2023 S.O.S. 2722.


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