Marriage of Bott

Filed 7/8/09 Marriage of Bott CA3

Reposted to correct filed date

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

----

This is an appeal from an order after a default judgment denying a motion for relief under Code of Civil Procedure section 473[1]from the default. Appellant Geoffrey Bott contends that the trial court erred in: (1) failing to consider the motion as tendered under the mandatory relief provision of the statute, and (2) abusing its discretion in denying relief under the discretionary relief provision of the statute. Finding no merit in these contentions of error, we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On November 21, 2006, Maya Bott (Maya)[2] filed the dissolution petition in this action and a motion for pendente lite support and custody orders. On November 28, 2006, Geoffrey was served. He appeared, with counsel, Jordan Morgenstern, at a hearing on a motion for pendente lite orders, on December 26, 2006, where opposing counsel noted, in passing, that no response to the petition had been filed. Geoffrey also appeared, with Attorney Morgenstern, at a second hearing on the pendente lite orders on February 13, 2007, when the court approved a stipulation the parties submitted. He also filed various papers in the proceeding, e.g., an income and expense declaration.

However, he failed to file a response to the petition. On May 11, 2007, Maya prepared a request to enter default andserved a copy by mail on Geoffreys attorney; on May 14, 2007, the request was filed and the clerk entered default and sent notice thereof to Geoffrey via Attorney Morgenstern.

On June 13, 2007, the clerk returned to Geoffreys counsel a proposed response to the petition, with the notation that default had been entered, as related above.

Notwithstanding the default, Geoffrey, represented by Attorney Morgenstern, appeared at a hearing on August 7, 2007, for approval of further stipulated pendente lite support orders.

A default judgment was entered on September 17, 2007.

On November 2, 2007, Geoffreys counsel filed a motion to set aside the judgment on the ground of reasonable mistake of counsel, under section 473. The motion included a declaration of Amy Brown, in essence as follows. Brown was the legal assistant to Attorney Morgenstern and she was responsible for the entry of the default judgment. Original counsel for Maya had agreed to set aside the original default. Brown prepared a written stipulation to set aside the default. Maya then changed counsel. The stipulation was not completed or filed. Brown erroneously concluded that the matter had been favorably resolved and took no further action. The default judgment was entered thereafter without further prior notice.

Maya filed an opposition to the motion to set aside the judgment. Her counsel averred in support that the proposed stipulation, drafted by earlier counsel for Maya, had been conditioned on tender of the proposed responsive pleading and payment of attorney fees which had never been supplied. She argued that the motion should be denied because there had been unreasonable delay, excusable neglect had not been shown, and no responsive pleading had been tendered with the moving papers. The matter came on for hearing on December 4, 2007. The court denied the motion on the ground, inter alia, of noncompliance with the requirement of section 473 (fn. 3, post) that [a]pplication for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted . . . . ( 473, subd. (b).)

On December 6, 2007, Geoffrey filed a second motion to set aside the judgment, this time with a proposed response. When that matter came on for hearing on December 18, 2007, neither Geoffrey nor Attorney Morgenstern was present. Both Maya and her attorney were present. The court said it had received a letter from Attorney Morgenstern indicating he was engaged elsewhere in a trial. The court took the matter off calendar.

On March 17, 2008, Geoffrey filed yet another notice of motion to set aside the judgment under section 473(b). The accompanying memorandum of points and authorities has five numbered and titled subdivisions as follows. The first is entitled This Court Has Jurisdiction to Grant Respondents Motion Due to Mistake. It cites authority for the premise that relief may be granted when the default occurs because of a reasonable mistake of fact or law of the party or the partys attorney. It makes the following supporting argument. A paralegals mistake that results in default is attributable to the attorney responsible for supervising the paralegal. Hu v. Fang (2002) 104 C[al.]A[pp.]4th 61, 63 . . . (Please see the Declaration of Amy Brown and Jordan R. Morgenstern attached). In the present[] case, the mistake was that the Stipulation and Order to Vacate the Default were erroneously believed to have been done.

The second section of the memorandum asserts that the court has jurisdiction to grant the motion for excusable neglect. The third asserts that the court has jurisdiction to grant the motion under the public policy favoring a hearing on the merits. The fourth section of the memorandum asserts that the court has broad discretion to grant the requested relief and quotes section 473, subdivision (b). The fifth section of the memorandum asserts that because Geoffrey was not personally served with the judgment, he was not required to apply for relief under section 473 within 90 days after service of an optional notice shortening the ordinary six-month limitation.

The matter came on for hearing on April 15, 2008. The trial court permitted Geoffrey to adduce testimony concerning the events leading up to the default judgment. When the time came to argue, Attorney Morgenstern argued as follows:

Just something briefly, Your Honor. Its the neglect, it doesnt matter whether it was excusable or not. Its the fact that it actually happened. And the authorities Ive cited are very, very to the point and state with certainty that if there is evidence of neglect, that it is the Courts duty to allow a case to go forward on the merits, as opposed to ratifying the judgment. And if the Court were to find against me in this particular matter, I would request a statement of decision under [Code of Civil Procedure section 632]. Other than that, Your Honor, I believe my side has established that there was neglect on the part of my office, there was mistake, and there certainly was error with regard to my belief of what had taken place which ultimately resulted in the detriment of my client with the judgment, which, in fact, is based on incorrect information as testified to, in part, financial information as testified to by Mr. Bott. Other than that, Your Honor, I submit.

Opposing counsel argued in reply, in pertinent part, that the showing that had been made was of inexcusable neglect and that the motion was untimely.

In rebuttal Attorney Morgenstern argued, in essence, as follows:

[I] dont believe Mr. Bott should be responsible. Im the captain of the ship and if things are going on in my office that Im either not catching, or paying attention to, then thats certainly my obligation.

However, the issue was whether or not there was negligence. The issue was whether or not there was inadvertence or mistakes made. And I believe that the testimony has certainly shown mistakes with regard to my understanding of what had been taking place in terms of the filing. Certainly there was negligence with regard to my not following up, instead of relying on letters and things that appeared to me to be taken care of, situations that were created and if there was any kind of inadvertence, it was the fact that I inadvertently relied on somebody who was my right-hand person to believe that they were doing what they told me they were doing, when, in fact, they were lying to me. . . .

[] . . . []

[The motion was not untimely even if brought on the last day of the six-month period.] . . . And so all I can tell the Court is this was mistake, this was inadvertence, there was neglect, but this should not impact my client because there is a statute specially designed to remedy this. And the Court has the authority to grant this motion and I would ask the Court to do that.

The matter was submitted. The court then announced an oral statement of decision denying the motion, in essence, for two reasons, as follows: First, The initial default here was entered on May 14, 2007. And my understanding of the law is that you have six months from the time the default is entered to file your motion. Second, There is a distinction in my mind, and there has always been a distinction in my mind as to the reasons something happened and didnt happen. And the excuses for something that happened, or didnt happen, and what you put forward today are reasons, but I dont think theyre excuses. In summary, I think the motion is not timely. And I dont think there has been a showing of excusable neglect.

After the court had announced its statement of decision, Attorney Morgenstern asked to read something. The court granted him permission to do so. Morgenstern excerpted the portion of section 473 pertaining to an application for mandatory relief accompanied by an attorneys sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect and said that language needed to be addressed in this particular motion. The court said it was finding no excusable neglect. Morgenstern then said: It doesnt have to be excusable, Your Honor. The court responded: Well, conceivably, Im going to deny the motion.

The written order denied the motion on the grounds of (1) no showing of excusable neglect and (2) more than six months lapse since entry of default was entered on April 29, 2008. Geoffrey appeals from that order.

DISCUSSION

I

Geoffrey contends that the trial court erred in denying the motion under the mandatory relief requirement of the attorney affidavit of fault provision of section 473.[3] He argues that under this provision the decision is insupportable as there is no requirement for a showing of excusable neglect (e.g., In re Marriage of Hock & Gordon-Hock (2000) 80 Cal.App.4th 1438, 1442) and the time for bringing the motion is within six months of the default judgment, rather than the underlying default (Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 296-297).

Maya replies that the motion was properly denied because Geoffrey only asserted a claim for relief under the discretionary relief provision of section 473 and failed to assert a timely claim for relief under the mandatory relief provision of the statute. She relies on Luri v. Greenwald (2003) 107 Cal.App.4th 1119 (Luri).

Luri held that the trial court did not err in treating the plaintiffs motion as one only for relief under the discretionary provision of section 473, subdivision (b), and not under the mandatory provision, even though the plaintiff included an attorneys declaration suggesting attorney fault. In Luri the motion did not specifically request relief under the mandatory provisions; the motion referred repeatedly to the ground of excusable neglect, which is listed as a ground for discretionary relief but not mandatory relief; and all parties treated the motion as one for discretionary relief. (Luri, supra, 107 Cal.App.4th at p. 1124.)

The Luri plaintiff argued that whenever a motion under section 473 includes a declaration by an attorney suggesting attorney fault, the trial court should consider granting relief under both the discretionary and mandatory provisions of the statute. (Luri, supra,107 Cal.App.4th at pp. 1125-1126.) The Luri opinion rejects that approach: But, when faced with a motion for relief under section 473, the trial court does not have to consider the availability of relief under the mandatory provision unless such relief is requested in an appropriate manner. (Id. at p. 1126.)

The Luri opinion noted that a moving party sets the agenda in the notice of motion. A basic principle of motion practice is that the moving party must specify for the court and the opposing party the grounds upon which that party seeks relief. Code of Civil Procedure section 1010 requires that a notice of motion must state the grounds upon which it will be made. California Rules of Court, [former] rule 311 [now rule 3.1110(a)] requires a notice of motion to state in its opening paragraph the nature of the order being sought and the grounds for issuance of the order. As a general rule, the trial court may consider only the grounds stated in the notice of motion. (Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1545; Silva v. Holland (1888) 74 Cal. 530, 531.) An omission in the notice may be overlooked if the supporting papers make clear the grounds for the relief sought. (Carrasco v. Craft (1985) 164 Cal.App.3d 796, 807-808; 366-388 Geary St., L.P. v. Superior Court (1990) 219 Cal.App.3d 1186, 1200.) The purpose of these requirements is to cause the moving party to sufficiently define the issues for the information and attention of the adverse party and the court. (Hernandez v. National Dairy Products (1954) 126 Cal.App.2d 490, 493.) (Luri, supra, 107 Cal.App.4th at p. 1125.)

As noted, in Luri the motion did not request relief under the mandatory provision of the statute. The papers referred repeatedly to excusable neglect, a ground for discretionary relief and not mandatory relief, and the parties argued the motion as one for discretionary relief. Because section 473, subdivision (b) provides for two distinct types of relief (Luri, supra, 107 Cal.App.4th at p. 1124) and the moving papers addressed only one of them, discretionary relief, the other ground, mandatory relief, was not requested in an appropriate manner.

Geoffrey asks us to distinguish Luri because: (1) he cited Hu v. Fang (2002)104 Cal.App.4th 61in his memo of points and authorities and that case deals with the mandatory relief provision and (2) he specifically argued the mandatory relief provision after the matter was submitted at the hearing. The citation of Hu v. Fang in the memo was only for the noncontroversial proposition that a paralegals mistake is attributable to the attorney supervising the paralegal. That kind of tangential reference does not bring to the attention of the adverse party and the court a claim under the mandatory relief provisions.

The question then is whether the failure to raise the mandatory ground should be deemed cured because of Attorney Morgensterns remarks at the hearing after the matter was submitted. In the context of this case that raises the issue: Was the court required to consider the ground of mandatory relief when it was not raised until after the motion had been submitted and the oral statement of decision pronounced?

The trial court was not obliged to reconsider its statement of decision based on a claim raised orally after submission of the motion. The court had discretion to allow or deny the request of Attorney Morgenstern to speak after submission of the motion. The court also had discretion to consider or to reject as untimely a claim specifically raised for the first time orally at this point in the proceedings. A new claim for relief raises new and different issues. In the context of this case it is unfair to the respondent, who had no opportunity to research or brief such issues, and to the trial court to deem the court required to consider such a belated application for relief, made at a time more than six months after entry of judgment. It suffices to say the trial court did not err in failing to reconsider its decision based on Morgensterns remarks after submission.

The proffered bases for distinction of Luri are unpersuasive. Relief under the mandatory provision of section 473 was not requested in an appropriate manner. The trial court did not abuse its discretion in denying, for the reasons it gave, the motion for relief under the discretionary provision of the statute.

II

Alternately, Geoffrey contends that, in any event, the trial court abused its discretion in denying relief under the discretionary relief provision of the statute. He argues that the court should not have denied his first motion for relief because of the technical deficiency of failure to attach the pleading proposed to be filed, as required by section 473. We decline the request to entertain this argument. The trial courts decision concerning the earlier motion is not before us on this appeal.

The notice of appeal in this case is from the order entered on April 29, 2008. An appeal taken as to that order does not bring before this court any earlier orders, e.g., the order of December 4, 2007. An appeal from a final judgment generally permits review of earlier nonappealable orders merged in the judgment. (See, e.g., Vernon v. Great Western Bank (1996) 51 Cal.App.4th 1007, 1014-1015.) However, the first order after judgment denying relief was itself an appealable order and is not merged into the order of April 29, 2008, whichis the subject of this appeal.

DISPOSITION

The order entered on April 29, 2008, denying the motion for relief from the default under Code of Civil Procedure section 473 is affirmed. Respondent Maya Bott shall recover her costs of this appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

BUTZ , J.

I concur:

BLEASE , J.

I dissent.

In my view, appellants trial attorney, Jordan Morgenstern, adequately raised the mandatory relief provisions of Code of Civil Procedure section 473, subdivision (b) (hereafter 473(b)); thus, the trial court erred in denying relief from default.

My colleagues opinion to the contrary is based primarily on Luri v. Greenwald (2003) 107 Cal.App.4th 1119 (hereafter Luri), which stands for the proposition that a trial judge does not err in failing to consider the mandatory relief provision of section 473(b) when the notice of motion and supporting papers do not clearly indicate this particular ground is being asserted as a basis for relief. (Id. at pp. 1121, 1126-1128.) This proposition protects the opposing party, who is entitled to notice of the grounds raised so that the party may respond and request reasonable compensation for legal fees under the mandatory relief provision; it also protects the moving partys attorney, who should not have fees assessed against him if he is simply seeking discretionary relief and does not intend to admit fault and accept responsibility. (Id. at pp. 1125-1126.)

In Luri, the notice of motion specifically referred only to excusable neglect, and the attorneys declaration only suggest[ed] attorney fault (Luri, supra, 107 Cal.App.4th at pp. 1121, 1124); it did not affirmatively attest to his mistake, inadvertence, surprise, or neglect. (Id. at pp. 1123-1124, 1127.) The moving papers repeatedly referred to excusable neglect. Thus, Luri held that the trial court did not abuse its discretion in treating the motion as one seeking relief solely under the discretionary relief provision. (Id. at pp. 1127-1128.) Because the Luri opinion did not include any discussion concerning arguments made by counsel at the law and motion hearing, we do not know whether the attorney argued then that he was seeking relief under the mandatory relief provision of section 473(b).

Here, appellants notice of motion is a standard form used in family law cases and states that appellant seeks relief under section 473(b), which would encompass both discretionary and mandatory relief. It does not expressly limit the requested relief to the discretionary relief provision of section 473(b), as did the moving party in Luri. The notice of motion refers to the supporting declarations of Morgenstern (the attorney) and Amy Brown (Morgensterns paralegal). Brown declares the default judgment was the result of her mistake, inadvertence, surprise, or neglect because of her failure to follow up on steps taken to set aside the default. Morgenstern declares the default judgment was due to his offices [sic] mistake, inadvertence, surprise or excusable neglect because he relied on his paralegal. His points and authorities indicate that under Hu v. Fang (2002) 104 Cal.App.4th 61, he is responsible for a default resulting from the mistakes of his paralegal. If the trial court and respondents attorney read that decision in preparation for the hearing, they would have learned Hu v. Fang held a paralegals error is attributable to the attorney for purposes of the mandatory relief provision of section 473(b). (Id. at pp. 63-65.)

It is true that the moving papers in this case do not clearly articulate Morgenstern and appellant are relying on the mandatory relief provision; however, Morgenstern quoted section 473(b) in his points and authorities and bolded the mandatory relief provision of the statute but not the discretionary relief provision. In this fashion, he showed he was relying on the mandatory relief provision. Unfortunately, he did so under a heading stating the trial court had discretion to grant relief; but he also stated the motion for relief from default is addressed to the courts discretion unless the attorney files an affidavit of fault. Morgenstern filed a declaration complying with this requirement.

Moreover, at the hearing, Morgenstern clarified his position by explaining that his neglect did not have to be excusable and that he had established there was neglect on the part of his office which resulted in detriment to his client. He asserted that if there was evidence of neglect, it was the courts duty to allow a case to go forward on the merits.

The opposing side did not protest that Morgenstern had not sought to set aside the default under the mandatory relief provision; respondents attorney merely argued the neglect had to be excusable and the request for relief was untimely. She also argued respondent would be prejudiced by a grant of relief because some property had already been disposed of in reliance on the judgment.

Morgenstern replied the disposal of the property was not by choice, but was the result of the judgment and situation that was created by my office. And Im willing to fall on the sword because that is absolutely the truth. But I dont believe [that my client] should be responsible. Im the captain of the ship and if things are going on in my office that Im either not catching, or paying attention to, then thats certainly my obligation. [] . . . [] [Appellant] should not suffer from a judgment that was not created by his lack of communication and cooperation with my office. It was created by an internal problem in my office and thats exactly what 473D [sic] is designed to remedy.

After the court denied the motion, Morgenstern soldiered on and read the mandatory relief provision of section 473(b)[4] to the judge, who replied, Well, the findings that Im making is it is not excusable neglect. Morgenstern persisted stating, It doesnt have to be excusable, your Honor, to which the trial court replied, Well, conceivably Im going to deny the motion. The court did not state that the motion failed to raise the mandatory relief provision and that it was too late to do so after the court had ruled. Furthermore, the fact that Morgenstern did not read to the court the text of the statute at issue until after the court had ruled, in a manner indicating it failed to accept his pre-ruling argument that excusable neglect was not required, does not render Morgensterns claim a belated application for relief. (Maj. opn. at p. 12.) He was simply trying again to take responsibility for his offices abysmal performance.

A Court of Appeal reviews for abuse of discretion an order denying relief under section 473(b). (Hu v. Fang, supra, 104 Cal.App.4th at p. 64.) In my view, the trial court abused its discretion. Morgenstern apprised the court before it ruled on the motion that his client was entitled to relief because mistakes and neglect by Morgenstern and his paralegal caused the entry of the default judgment. In addition, he filed a declaration expressly admitting fault, and he pointed to legal authority supporting mandatory relief. Morgensterns motion was not presented well, but his client should not be punished for this.

The purpose of the attorney affidavit provision is to relieve the innocent client of the burden of the attorneys fault, to impose the burden on the erring attorney, and to avoid precipitating more litigation in the form of malpractice suits. [Citation.] (Hu v. Fang, supra, 104 Cal.App.4th at p. 64.) This purpose was not met by the courts refusal to listen to Morgensterns express admissions of fault. The appropriate resolution is to reverse the order denying relief and to remand the matter to the trial court with directions to grant the motion and to award respondent attorney fees and costs.

SCOTLAND , P. J.

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[1] Undesignated statutory references are to the Code of Civil Procedure.

[2] We refer to the parties by their first names for convenience only. No disrespect is intended.

[3] Section 473, subdivision (b) is as follows: The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . . Notwithstanding any other requirements of this section, 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 attorneys 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 attorneys mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorneys affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310.

[4] Section 473(b) provides in pertinent part: Notwithstanding any other requirements of this section, 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, unless the court finds that the default or dismissal was not in fact caused by the attorneys mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorneys affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. . . .