Cooley v. Miller
Filed 10/19/07 Cooley v. Miller CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
TRINA COOLEY et al., Plaintiffs and Respondents, v. TERRY LESTER MILLER, Defendant and Appellant. | D049426 (Super. Ct. No. GIN047129) |
APPEAL from a judgment of the Superior Court of San Diego County, Michael B. Orfield and Jacqueline M. Stern, Judges. Reversed and remanded.
Terry L. Miller appeals from a judgment in favor of plaintiffs Trina Cooley and Michael Lippke (collectively plaintiffs) after the court denied his motion to set aside his default under Code of Civil Procedure section 473 and entered judgment against him. (All statutory references are to the Code of Civil Procedure.) Miller claims the trial court erred in denying his motion. Alternatively, he contends the trial court erred in refusing to hear a second motion that he had filed and that the judgment against him is legally flawed and unreasonable. We conclude the trial court erred in denying the motion because Miller was entitled to mandatory relief based on his counsel's affidavit of fault. Accordingly, we reverse the judgment, mooting Miller's remaining contentions.
FACTUAL AND PROCEDURAL BACKGROUND
On September 8, 2005, plaintiffs filed a complaint for damages and injunctive and declaratory relief, alleging that Miller invaded their privacy by distributing their confidential driver's license records to third parties. (All dates are in 2005 unless otherwise indicated.) On September 14, plaintiffs had the summons, complaint and an ex parte application for a temporary restraining order served; the following day Miller personally appeared at the ex parte hearing and plaintiffs later had him served with the temporary restraining order.
On September 26, plaintiffs' counsel wrote to Miller suggesting that he stipulate to a preliminary injunction and Miller later signed a stipulated injunction. The trial court defaulted Miller on December 19 and on April 26, 2006, Miller moved to set aside the default based on the mistake, inadvertence or surprise of his attorney. In support of his motion, Miller submitted the declaration of Attorney Henry M. Siegel stating that Miller sought his advice regarding the stipulated injunction, but never told him or presented copies of the summons and complaint. In the accompanying points and authorities, Siegel explained that he thought the stipulation would completely dispose of the action.
Judge Michael B. Orfield issued a tentative ruling denying the motion to set aside the default, finding that (1) Miller failed to present evidence showing entitlement to discretionary relief based on his own inadvertence, excusable neglect, surprise or mistake, (2) Miller failed to act with diligence in moving to have the default set aside, and (3) Siegel's declaration of fault was insufficient because he was not Miller's attorney of record at the time the default was taken. At oral argument on the motion, Siegel explained the grounds for relief and asked for the matter to be continued so he could present additional declarations. Judge Orfield denied Siegel's request to file additional declarations and entered a default judgment for the plaintiffs.
Thereafter, Miller obtained new counsel who appeared ex parte for leave to file a second motion to set aside the default and default judgment based on Siegel's neglect, indicating the motion needed to be heard before Miller filed a notice of appeal and the trial court lost jurisdiction. This motion contained another sworn declaration from Siegel stating that he had led Miller to believe the matter would be over if Miller signed the stipulation to the preliminary injunction and that his failure to inquire into the status of the case lead to Miller's default. Siegel also detailed mistakes made in moving to set aside the default, stating his inadequate motion further prejudiced Miller. Judge Jacqueline M. Stern considered the ex parte application and denied Miller's request to file the motion, because the Judge Orfield "has already heard and determined motion to set aside default - it was denied." Miller timely appealed.
DISCUSSION
Section 473, subdivision (b) provides for both discretionary and mandatory relief from default. The discretionary provision permits the trial court to grant relief if the moving party demonstrates mistake, inadvertence, surprise, or excusable neglect. The mandatory or "attorney fault" provision requires that the motion be accompanied by "an attorney's sworn affidavit" attesting to his mistake, inadvertence, surprise, or neglect. On the filing of such an affidavit, the court "shall" grant relief "unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect." ( 473, subd. (b).)
The law strongly favors a disposition on the merits and orders denying relief under section 473 are carefully scrutinized. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233-234, superseded by statute on another point as stated in Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 64.) The applicability of the mandatory relief provision is a question of law subject to de novo review, unless the determination turns on disputed facts. (SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 516 (SJP).)
While the motion Siegel filed was brief and not a model of clarity, the notice of motion adequately stated that Miller sought relief based on attorney fault. (Compare Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125 [if motion refers only to discretionary relief, the court need not set aside the default even if the motion is accompanied by an affidavit indicating the attorney was at fault].) In any event, the trial court denied the motion on both discretionary and mandatory grounds because: (1) Miller did not file a declaration explaining his conduct; and (2) Siegel's declaration was "insufficient as he was not [Miller's] attorney of record at the time the default was taken."
At oral argument, Siegel explained that he was Miller's attorney when he reviewed the stipulated injunction, he thought the stipulation would resolve the matter and he was at fault for not checking to see if a summons and complaint had been filed. The trial court denied Siegel's request to continue the matter and informed Siegel that his conduct was not in question because Miller did not consult Siegel until after default had been entered. As explained below, the record reveals that the trial court made several errors and we conclude the motion to set aside the default should have been granted under the mandatory provision of section 473, subdivision (b).
Siegel did not need to be Miller's "attorney of record" at the time the default was taken to obtain relief under the mandatory attorney fault provision (SJP, supra, 136 Cal.App.4th at p. 517) and Siegel's declaration, when viewed in connection with the date the trial court accepted the stipulated injunction and the date it entered the default, reveals Siegel provided legal services to Miller before the trial court entered the default. Thus, the trial court's comments in its written ruling and at oral argument were legally and factually incorrect. Significantly, this is not a situation where the trial court disbelieved Siegel; rather, it was simply mistaken about the facts and the law.
As the facts are undisputed, we review the matter de novo (SJP, supra, 136 Cal.App.4th at p. 516) and resolve all doubts in Miller's favor. (Elston v. City of Turlock, supra, 38 Cal.3d at p. 233.) Siegel provided legal services to Miller regarding the stipulated injunction, believed the stipulation resolved the matter and did nothing more even though the stipulation listed a case number, causes of action and contained a line for the judge's signature. Miller's subsequent declaration indicated he also believed that the stipulated injunction resolved the dispute. To the extent the trial court was confused regarding the facts, it could have easily addressed this issue by continuing the matter to allow Siegel to provide additional declarations or by exercising its discretion to swear in Siegel to provide testimony during oral argument. (Reifler v. Superior Court (1974) 39 Cal.App.3d 479, 485.) The lengthy declarations filed with the second motion clearly reveal that Siegel was at fault and that his inadequate motion to set aside the default further prejudiced Miller.
Because Miller was entitled to relief from the default based on attorney fault, the judgment is reversed and the matter is remanded with directions to set aside the default. On remand, the trial court is required to direct Siegel to pay reasonable compensatory legal fees and costs to plaintiffs or their attorney related to the default and the first motion to set aside the default. ( 473, subd. (b).)
Finally, plaintiffs seek to augment the record on appeal to present evidence rebutting certain factual representations made by Miller and they seek judicial notice of certain documents. The requests are denied as the documents were not before the trial court and are not relevant to the resolution of this appeal.
DISPOSITION
The judgment is reversed and the case is remanded to the trial court for further proceedings in accordance with this opinion. The parties are to bear their own costs on appeal.
McINTYRE, J.
WE CONCUR:
BENKE, Acting P. J.
NARES, J.
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