Monterey Co. Dept. of Child Support Services v. Arellano

Filed 6/26/07 Monterey Co. Dept. of Child Support Services v. Arellano CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

This case involves two separate appeals in an action to enforce child support arrears. Respondent Monterey County Department of Child Support Services (DCSS) sought to collect accrued arrears from appellant Nick Arellano, the noncustodial parent. The first appeal is from an order fixing the amount of child support arrears and directing appellant to make monthly payments. The second appeal is from the order denying relief under Code of Civil Procedure section 473.[1] Both orders were issued by a court commissioner.

A. Procedural History and Background

Appellant elected to proceed by an appendix instead of by clerk's transcript and without reporter's transcripts.

On June 4, 1999, appellant Arellano was ordered to pay monthly child support of $363 beginning April 15, 1999 to the Monterey County District Attorney, Family Support Division and half of "necessary job-related daycare expenses" and half of uninsured medical expenses to the custodial parent.

In December 2004, appellant was served with a notice of motion requesting that "[c]hild support arrears be set at $11,506.41 ($11,320.76 in outstanding principal; $185.65 in outstanding interest) as of November 30, 2004 owing to the custodial parent" and that appellant be ordered to "pay child support arrears at the rate of $137.00 per month, payable through the Monterey County Department of Child Support Services." The hearing on the motion was originally scheduled for January 12, 2005.

The notice of the motion also stated in a box entitled "NOTICE": "This case may be referred to a court commissioner for hearing. By law court commissioners do not have the authority to issue final orders and judgments in contested cases unless they are acting as temporary judges. The court commissioner in your case will act as a temporary judge unless, before the hearing, you or any other party objects to the commissioner acting as a temporary judge. The court commissioner may still hear your case to make findings and a recommended order. If you do not like the recommended order, you must object to it within 10 court days; otherwise the recommended order will become a final order of the court. If you object to the recommended order, a judge will make a temporary order and set a new hearing." The notice also contained the warning: "In the absence of an order shortening time, you must file any documents with the court and mail copies (at least 10 calendar days before the hearing date) to the local child support agency . . . ."

A declaration from county attorney Lisa Ortiz, who represented the DCSS, supported the motion to enforce child support arrears. Ortiz's declaration stated that a stipulation for entry of judgment determining paternity and support was filed on November 3, 1993. She stated that the order required appellant to pay monthly child support of $200 commencing October 1, 1993 and to pay a welfare reimbursement of $1170. Attorney Ortiz indicated that the DCSS was not seeking to collect support arrears for the period of October 1, 1997 through November 30, 1998 because the mother was not receiving welfare at that time, the department was not then collecting support on behalf of the mother, and the department did not have an arrears affidavit from the mother for that period. In December 1998, DCSS began collecting support for the mother. On June 4, 1999, appellant was ordered to pay monthly child support of $363 commencing April 15, 1999. Ortiz acknowledged that a welfare audit had found that Monterey County had been overpaid $3,144.43 and appellant had received a refund of $1089.27 and the remainder, $2055.16, had been sent to the mother. Ortiz's declaration, supported by an attached audit, indicated that, as of November 30, 2004, appellant owed $11,506.41 in child support arrears to the mother.

On March 8, 2005, the day before the hearing, appellant filed a response to the notice of motion, stating that he did not consent to the orders requested. The document's caption identified Martha Bronson as appellant's attorney and stated "OBJECT TO COMISSIONER" in the box regarding the hearing's date, time and location. On March 8, 2005, Attorney Martha Bronson's declaration was filed in opposition to the county's motion to establish arrears. The caption on Bronson's declaration stated in capital letters below the title "OBJECTION TO COMMISSIONER," "REQUEST FOR LONG CAUSE SETTING," and "STIPULATED TELEPHONE APPEARANCE" and provided a telephone number. Appellant's declaration and attorney Bronson's supplemental declaration were also filed on March 8, 2005. The captions of those documents also contained the same statements in capital letters below the title.

Attorney Bronson's first declaration detailed the alleged problems and accounting errors in the county's various audits. According to Bronson, the mother admitted in February 2005 that she closed the child support collection case in 1997 because appellant had been paying the court ordered support and reopened the case in September 1998 for the purpose of modifying the order and not for the purpose of collecting arrears. Bronson's declaration stated that the mother had indicated that no arrears were due and owing. It also stated that DCSS's new evidence of the mother's waiver of $3,000 of arrears, provided after DCSS's motion had been filed, "necessitate[d] further discovery not contemplated previously." It reported that the mother's deposition was set for March 8, 2005 but the transcript of the deposition would not be available by March 9, 2005. The declaration further asserted that a continuance was also justified because the attorney representing DCSS had withheld relevant evidence, including letters from the mother and other facts. She urged the trial court to stay the proceeding for the further reason that there was a pending class action lawsuit in federal court. In the last paragraph of her declaration, Bronson requested that the matter "be taken off calendar and set on long cause when it is ready for trial," which she indicated would be no earlier than June 2005.

Following the March 9, 2005 hearing, Commissioner Baker issued an order, dated and filed on March 22, 2005. The order determined that, as of February 28, 2005, appellant owed child support arrears of $4850.50, consisting of a principal amount of $4656.50 and $194 in interest to the custodial mother. The order required him to pay $137 each month to the DCSS and informed him that interest would accrue on the entire principal balance owing.

In a notice of objection dated March 15, 2005, attorney Bronson objected to the Commissioner's "findings and recommendations" and requested a trial de novo before a superior court judge. In a separate objection to Commission Baker's rulings, also dated March 15, 2005, attorney Bronson requested a hearing de novo and asked to appear by telephone. This objection paperwork was apparently returned and not filed on the ground that the format did not comply with the California Rules of Court and the filing fee had not been paid and a fee waiver had not been obtained. Meanwhile appellant's documents were served on attorney Ortiz, who responded in writing on behalf of the DCSS.

On March 30, 2005, attorney Bronson filed a notice of motion and motion for the following relief: a trial de novo following objection to commissioner pursuant to Family Code section 4251, subdivision (b), an order granting reconsideration pursuant to section 1008, an order "reversing recommendations and orders of 3/9/05" pursuant to section 473, an order reversing order of arrears of 3/09/05, an order allowing telephone appearance and sanctions against attorney Ortiz. Another copy of these documents in the appellant's appendix shows the file stamp date was voided.[2]

In a memorandum from Commissioner Baker to attorney Bronson, filed on April 7, 2005, the commissioner indicated that the motion for arrears had been continued to March 9, 2005 at the request of appellant's attorney but the attempted filings on March 8, 2005 had been untimely. The Commissioner complained that the court had been "deluged" with "inappropriate filings" since March 9, 2005 that had "burdened our already overworked Court staff." She noted that papers had been filed "without a filing fee, not in conformance with Rules of Court regarding pleadings, untimely, etc." The Commissioner advised attorney Bronson that "the proper remedy [was] an appeal to the Sixth District Court of Appeal."

On May 10, 2005, attorney Bronson filed a notice and motion, which sought similar relief similar to that sought in the March 30, 2005 notice and motion, including "an order reversing recommendations and orders of 3/9/05 pursuant to CCP section 473," and points and authorities in support of the motion. The hearing on the motion was scheduled for June 17, 2005.

On May 25, 2005, attorney Bronson filed her declaration and exhibits in support of the motion. According to Bronson's declaration, the DCSS reopened the child support case, at the mother's request, with a zero balance as reflected in three subsequent audits in 1999, 2002, and 2003. The declaration stated that in February 2005 the mother admitted to Bronson that she closed the child support collections case in 1997 because appellant was paying the court ordered support and she reopened the case in 1998 because she wanted to modify child support, not to collect arrears. Bronson's declaration explained that Bronson obtained from attorney Ortiz copies of the mother's 1997 and 1998 letters to the county, the former asking for the child support case to be closed and latter asking for the child support case to be reopened and "adjusted to the current year." Based upon the letters, she understood that the motion to establish arrears would not be going forward because the DCSS's records established the arrears had been waived.

Attorney Bronson's declaration indicated that, on March 2, 2005, Bronson received from attorney Ortiz a copy of the mother's written statement, dated February 24, 2005, indicating that the mother had waived $3000 in child support. Bronson stated in her declaration that she had contacted attorney Ortiz to request a continuance to conduct further discovery. According to the declaration, Ortiz did not agree to a continuance but agreed that Bronson could appear by telephone at the hearing and told Bronson that she merely needed to let the court know. Attorney Bronson conceded that she was aware of Monterey County's local rule 10.08 but mistakenly believed "informing the court through the pleadings was all that [she] needed to do" to make a telephonic appearance. Counsel also admitted in her written argument that she was aware that rule 10.08 required applications for telephone appearances but claimed to have mistakenly believed based upon the advice of attorney Ortiz that she merely needed to advise the court of their "stipulation to appear via phone."

Attorney Bronson's declaration further explained that she believed that stating an objection to the commissioner in the caption of her responsive pleadings, which she filed before the March 9, 2005 hearing, was sufficient to preserve appellant's right to object under Family Code section 4251. She indicated that she had waited all day for the court to telephone and she called the court many times on date of the hearing.

In her declaration, Bronson also described the filing problems she encountered in filing an objection to the Commissioner and other documents after the March 9, 2005 hearing.

On May 25, 2005, attorney Bronson filed an amended notice of motion, this time additionally checking the boxes for modification of child support and attorney fees and costs, and indicating the supporting facts and points and authorities would be filed subsequently. The hearing on the motion remained set on June 17, 2005.

DCSS responded with a declaration from attorney Ortiz, dated June 3, 2005, and exhibits and a memorandum of points and authorities in opposition to appellant's motion. Ortiz stated in her declaration that on February 18, 2005 attorney Bronson sent a letter to the mother asking her to sign a prepared declaration, which stated appellant owed her "no arrears," and sent copies to DCSS. Bronson's letter and prepared declaration were attached as exhibits.

Ortiz's declaration also stated: "On March 3, 2005, DCSS faxed to Ms. Bronson a February 24, 2005 statement from the custodial parent indicating she agreed to waive $3,000.00 when she closed her case in 1997. DCSS also faxed a new audit based on the statement. The new audit reflected arrears owed to the custodial parent in the amount of $4,850.50 (including interest) as of February 28, 2005." Ortiz reported that attorney Bronson, in response to the DCSS's refusal to agree to a continuance of the March 9, 2005 hearing, warned in a March 4, 2005 faxed letter, a copy of which was attached to the declaration, that "if no continuance is granted, Mr. Arellano will seek to appear via phone . . . pursuant to local rule 10.08(A)."

Ortiz recalled in her declaration that on March 7, 2005, attorney Bronson telephoned her to ask for a stipulated telephonic appearance and Ortiz told Bronson that Ortiz "did not object but [Bronson] would need to contact the court" regarding such appearance. Ortiz stated that on March 8, 2005, she "drove to San Jose for the 11:00 a.m. deposition of the custodial parent" but, upon arriving, "was informed by the court reporter that Ms. Bronson cancelled the deposition at approximately 10:00 a.m. that morning."

Ortiz's declaration indicated that at the March 9, 2005 hearing, Ortiz informed the court that she had been called by Bronson regarding her appearance by telephone and Ortiz had told Bronson that she did not object but Bronson "would need to contact the court." Ortiz stated that the court proceeded with the hearing and she "provided the court with the new audit and a copy of the custodial parent's waiver of arrears" and the court set the arrears based on the new audit.

Appellant's appendix does not contain any ruling on appellant's motion that had been scheduled to be heard on June 17, 2005. Ortiz indicated in a later declaration in response to appellant's subsequent motion for relief under section 473 that the June motion had been denied without prejudice because "Ms. Bronson failed to file the motion in front of the proper court and there were [sic] no substantial change of circumstances."

On September 22, 2005, attorney Bronson filed another notice of motion seeking a reduction in appellant's monthly child support payment, attorney fees and costs, an order directing DCSS to disclose its entire file, relief under section 473, and permission to appear by telephone. On September 23, attorney Bronson filed her declaration reiterating that she believed her "client's appearance was preserved when . . . Ortiz stipulated to [her] appearance by telephone and told [her] that [she] only needed to let the court know . . . , which [she] did via the pleadings that were filed." In her declaration she admitted to making a number of mistakes, including "the mistake of filing the opposition [to the motion for child support arrears] and declarations and documents late," "the mistake of concluding that [her] client's rights to have a trial denovo [based upon objection to the commissioner]. . . was preserved" by her filings, "the mistake of concluding that [appellant's] appearance was preserved" by the parties' stipulation to a telephone conference and the responsive documents filed and "the mistake of concluding that the court would have to honor defendant's request for a continuance to allow discovery because DCSS filed new evidence bearing directly upon the issue of arrears."

DCSS's responsive documents in opposition to appellant's latest motion incorporated by reference the responsive declaration filed by DCSS on June 6, 2005 and included another declaration by Ortiz stating additional facts. Ortiz indicated in her declaration that Bronson had filed a federal class action lawsuit in March 2005 and that the county's motion to dismiss it was then under submission in the federal district court.

Attorney Bronson prepared a reply and supplemental memorandum of points and authorities, in which she argued that the county and the mother should be estopped from seeking arrears before 1998.

By minute order dated December 7, 2005, Commissioner Baker denied appellant's request to set aside or vacate the March 22, 2005 order. The commissioner determined that the mandatory provisions of section 473, subdivision (b), did not apply because the March 22, 2005 order was not a "default judgment or dismissal." The commissioner determined that discretionary relief was unwarranted, finding that attorney Bronson's "failure to appear at the hearing, failure to file a motion for reconsideration, failure to file a motion to set aside in a reasonable time, etc." were not "the result of a mistake of fact or law, inadvertence, surprise, or excusable neglect."

B. Order to Pay Child Support Arrears

Appellant contends that the order after the March 9, 2005 hearing must be vacated because Commissioner Baker had no authority to enter an order over appellant's objection, the commissioner failed to honor the stipulated telephone appearance, the commissioner abused discretion by not granting appellant's request for a continuance to conduct discovery, and the commissioner, by considering new evidence not served by the DCSS until March 3, 2005 in violation of section 1005, deprived appellant of his due process right to adequate time to respond.

1. No Adequate Objection to Commissioner

A court commissioner is statutorily empowered to "[h]ear actions . . . to establish or enforce child . . . support pursuant to subdivision (a) of Section 4251 of the Family Code." ( 259, subd. (f).) Under Family Code section 4251, subdivision (a), "[a]ll actions or proceedings filed by the local child support agency in a support action or proceeding in which enforcement services are being provided pursuant to Section 17400, for an order to establish, modify, or enforce child . . . support" must generally be "referred for hearing to a child support commissioner . . . ." The commissioner "act[s] as a temporary judge unless an objection is made by the local child support agency or any other party." (Fam. Code,  4251, subd. (b), italics added.) "If any party objects to the commissioner acting as a temporary judge, the commissioner may hear the matter and make findings of fact and a recommended order. Within 10 court days, a judge shall ratify the recommended order unless either party objects to the recommended order, or where a recommended order is in error. In both cases, the judge shall issue a temporary order and schedule a hearing de novo within 10 court days. Any party may waive his or her right to the review hearing at any time." (Fam. Code, 4251, subd. (c).)

Although Family Code section 4251 does not specify a time requirement for making an objection to a hearing before a commissioner in response to a DCSS's motion to enforce child support, Monterey County's Local Rules of Court established time frames for filing and serving responsive documents. (See Super. Ct. Monterey County, Local Rules, rule 10.01.) The rule governing timely filing of papers permitted a court, at the time of a hearing, to refuse to consider responsive documents that were not filed and served within the time frames specified by the local rule. (Ibid.) The commissioner was not required to, and did not, consider appellant's responsive documents because attorney Bronson filed them too late. Even assuming a proper objection could have been interposed in person before the hearing at the time the hearing was scheduled, appellant failed to appear.

Because the responsive documents were not timely filed, the commissioner had the authority to enter a default order pursuant to Family Code section 4253[3] (see Fam. Code,  4251, subd. (d)(5)) or to proceed with the scheduled hearing. The court's March 22, 2005 order was entitled "order after hearing" and specifies that the matter proceeded as "uncontested." The limited record before us suggests that the court's order was a "default" in the general sense that it was entered after appellant failed to file timely responsive documents and failed to appear at the hearing, which resulted in no defense on the merits.[4] There is no reporter's transcript in the appellate record to further clarify what occurred on March 9, 2005.

In any event, the appellate record before us does not establish that appellant made an effective, timely objection after the commissioner issued the order regarding child support arrears. (See Fam. Code,  4251, subd. (c).) Attorney Bronson makes the absurd suggestion on appeal that her unfiled post-hearing documents satisfied the objection requirement. Although she claims that Family Code section 4251 does not explicitly require the filing of an objection to a commissioner, such a requirement is implicit in the statute. Otherwise, the superior court would not be on notice that, instead of ratifying the recommended order as statutorily mandated in the absence of a timely objection, a superior court judge was required to issue a temporary order and schedule a hearing de novo within 10 court days of a court commissioner's recommended order (ibid.). Furthermore, filing is necessary to create an adequate record for judicial review.

If a court clerk improperly refused to file a notice of objection or if a file date stamp on appellant's documents was improperly voided, the responsibility for remedying that situation by seeking immediate judicial relief rested with attorney Bronson. (See  1085.) The appellate record does not establish that valid notices of objection necessary for a trial de novo before a superior court judge were timely filed. (Cf. County of Orange v. Smith (2002) 96 Cal.App.4th 955, 961 ["one must object to a commissioner twice (before and after the commissioner rules in the case) to have the matter reviewed by a superior court judge"].)

2. No Timely Request for Telephonic Appearance

On appeal, it is asserted that attorney Bronson "did all that was required . . . to make the court appearance by phone" in that her responsive documents stated below their title "STIPULATED TELEPHONE APPEARANCE" and provided a telephone number at which she could be reached. Appearances by telephone in DCSS cases were governed by local rule.[5] (See Super. Ct. Monterey County, Local Rules, former rule 10.08.)

The applicable Monterey County Superior Court Local Rules then required appellant's request for an appearance by telephone to "be made by letter or other ex parte application" and such request to be submitted and served "no later than ten (10) calendar days before the hearing." (Id., rule 10.08 (A)(2).) It also provided: "If no opposition is filed, the court will rule on the application at least eight (8) days before the hearing. If the court has not ruled on the application by that time, the application is deemed granted." (Id., rule 10.08(A)(4).) The record before us does not contain any request from appellant for a telephone appearance or any ruling permitting a telephone appearance. For that matter, it does not contain an order shortening time for the filing and service of the untimely responsive documents on which appellant relies. Thus, even assuming respondent DCSS had orally stipulated to Bronson's appearance by telephone and telephonic appearances were routinely granted, the appellate record does not demonstrate that the commissioner abused her discretion by failing to provide attorney Bronson an opportunity to appear by telephone on March 9, 2005 since it contains no proper request for such telephonic appearance.

3. No Timely Request for Continuance or Special Setting

It is argued on appeal that Commissioner Baker was aware of the request for a continuance and the need to address new evidence presented by the DCSS and, therefore, the commissioner's failure to continue the March 9, 2005 hearing deprived appellant of his right to a fair hearing.

At the time of the motion to collect child support arrears, Monterey County Superior Court Local Rules, rule 10.01(A)(3) stated, as it does now, the general policy against continuing "law and motion matters [in the family law department] without good cause." The rule required, as it does now, that a request for a continuance "be submitted to the research attorney for the Family Court at least a full 48 hours prior to the date of hearing." (Ibid.) The rule also required, as it does now, that "[t]he request must indicate good cause for the continuance and state the position of the opposing party regarding the continuance as well as the requested date." (Ibid.)

While attorney Bronson's request in her declaration that the matter be taken off calendar and reset on the long cause calendar no earlier than June 2005 impliedly requested a continuance, the responsive documents were untimely filed and the commissioner was not required to consider them, appellant failed to comply with the local rule requirements for obtaining a continuance, and appellant did not appear and request a special setting at the time already scheduled for the hearing as specified by local rule. (See Super. Ct. Monterey County Local Rules, former rule 10.01.) We have no basis for concluding that the commissioner abused her discretion in failing to grant a continuance or reset the matter on the long cause calendar.

4. No Timely Evidentiary Objection and No Deprivation of Due Process

Appellant contends that Commissioner Baker violated due process by considering DCSS documents, including a February 24, 2005 letter from the mother indicating that she had waived collection of $3000 and a new county audit, served on appellant on March 3, 2005. Appellant points to Section 1005, which requires, as to proceedings within its purview, that all moving and supporting papers be served and filed at least 16 court days before the hearing and increases the number of days for notice depending on the method of delivery. (Code Civ. Proc.,  1005, subd. (b).)

The limited appellate record does not show that any evidence was submitted to the court over a timely and specific evidentiary objection by appellant. In the absence of a record showing such objections to evidence, we cannot consider them preserved for appellate review. (Evid. Code, 353, subd. (a).)

In any case, the appellate record before us does not establish any due process violation. The DCSS's motion sought to collect alleged child support arrears of over $11,000 as determined by an audit. In December 2004, DCSS served notice of the motion, set to be heard January 12, 2005. Appellant's opening brief, prepared by attorney Bronson, acknowledges that the motion was continued at her request to March 9, 2005 and indicates that the additional documents were served by DCSS almost a week prior to the hearing. Following the March 9, 2005 hearing, at which neither attorney Bronson nor appellant appeared, the commissioner fixed arrears at $4850.50, far less than originally sought by the DCSS.

The limited appellate record does not show appellant was deprived of constitutionally adequate notice of the hearing or his potential liability for child support arrears or the opportunity to be heard at a meaningful time and in a meaningful manner. (See Mathews v. Eldridge (1976) 424 U.S. 319, 333 [96 S.Ct. 893].) "It is fundamental to the concept of due process that a defendant be given notice of the existence of a lawsuit and notice of the specific relief which is sought in the complaint served upon him. The logic underlying this principle is simple: a defendant who has been served with a lawsuit has the right, in view of the relief which the complainant is seeking from him, to decide not to appear and defend." (In re Marriage of Lippel (1990) 51 Cal.3d 1160, 1166 [due process precluded order requiring husband to pay any child support in default dissolution where wife had not specifically requested support in dissolution petition].) Appellant has not shown that the order violated the fundamental requirements of due process.

C. Order Denying Relief from Order Regarding Child Support Arrears

Section 473, subdivision (b), which empowers a court to grant relief from errors due to an attorney's mistake, inadvertence, surprise, or excusable neglect, contains provisions for discretionary and mandatory relief.

1. Discretionary Relief

The discretionary provision provides in pertinent part: "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." ( 473, subd. (b).) As observed by the Supreme Court, "[t]he discretionary relief provision of section 473, subdivision (b) applies to any 'judgment, dismissal, order, or other proceeding.' " (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 254.)

" 'A party who seeks [discretionary] relief under section 473 on the basis of mistake or inadvertence of counsel must demonstrate that such mistake, inadvertence, or general neglect was excusable because the negligence of the attorney is imputed to his client and may not be offered by the latter as a basis for relief.' (Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1399 . . . .) In determining whether the attorney's mistake or inadvertence was excusable, 'the court inquires whether "a reasonably prudent person under the same or similar circumstances" might have made the same error.' (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276 . . . , italics added.) . . . 'Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.' (Ibid.)" (Zamora v. Clayborn Contracting Group, Inc., supra, 28 Cal.4th at p. 258.) " 'A ruling on a motion for discretionary relief under section 473 shall not be disturbed on appeal absent a clear showing of abuse.' [Citation.]" (Id. at p. 257.)

"An honest mistake of law is a valid ground for relief when the legal problem posed ' ''is complex and debatable." ' (McCormick v. Board of Supervisors (1988) 198 Cal.App.3d 352, 360 . . . ; Brochtrup v. INTEP (1987) 190 Cal.App.3d 323, 329 . . . .) The controlling factors in determining whether a mistake of law is excusable are the reasonableness of the misconception and the justifiability of the failure to determine the correct law. (McCormick, supra, at p. 360; Brochtrup, supra, at p. 329.) '[W]here the court finds that the alleged mistake of law is the result of professional incompetence based upon erroneous advice [citation], general ignorance of the law or lack of knowledge of the rules [citation], or unjustifiable negligence in the discovery or research of the law, laxness or indifference [citations][,] normally relief will be denied.' (Fidelity Fed. Sav. & Loan Assn. v. Long (1959) 175 Cal.App.2d 149, 154 . . . .)" (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 611.)

In this case, the court impliedly found attorney Bronson's mistakes inexcusable. The commissioner impliedly believed attorney Ortiz's declaration stating that, although she told Bronson that she did not object to Bronson's appearance by telephone, Bronson "would need to contact the court regarding it." The procedures for timely filing documents, requesting telephone appearances or continuances, and objecting to a commissioner acting as a temporary judge were spelled out by local rule or statute. The commissioner could properly conclude that Bronson had not shown that her mistakes were the result of a reasonable reliance on Ortiz's statements or a reasonable misunderstanding of the governing law or local rules rather than a negligent failure to comply with them. The commissioner's refusal to grant discretionary relief under Section 473 did not constitute an abuse of discretion.

2. Mandatory Relief

The mandatory provision of section 473, subdivision (b), states: "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 attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties." Thus, the mandatory relief provision expressly applies to a default, default judgment or dismissal.

Some courts have extended the entitlement to mandatory relief to circumstances deemed to be the procedural equivalent of a default. (See e.g. In re Marriage of Hock & Gordon-Hock (2000) 80 Cal.App.4th 1438, 1443 [new attorney failed to appear on reserved issues in dissolution proceeding because unaware of trial date]; Avila v. Chua (1997) 57 Cal.App.4th 860, 868 [appellant's late-filed opposition to respondents' summary judgment motions was stricken and summary judgment was granted].) "The rationale of these cases is that, where there is no hearing on the merits, an attorney's neglect should not prevent the party from having his or her day in court. [Citations.]" (In re Marriage of Hock & Gordon-Hock, supra, 80 Cal.App.4th at p. 1443.) Other courts have rejected this view in light of the explicit statutory language. (See e.g. English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 149 [a summary judgment for plaintiff not a "default," "default judgment," or a "dismissal" within the meaning of section 473, subdivision (b)]; Vandermoon v. Sanwong (2006) 142 Cal.App.4th 315, 317 [judgment entered after an uncontested trial in a defendant's absence not "default," "default judgment," or "dismissal" within the meaning of section 473, subdivision (b)].)

The court in English v. IKON Business Solutions, Inc., supra, 94 Cal.App.4th 130 reasoned: "By carefully differentiating between the scope of the discretionary provision of section 473(b) (which applies to 'a judgment, dismissal, order, or other proceeding') and the scope of the mandatory provision (which applies to a 'default' or a 'default judgment or dismissal'), the Legislature chose to limit the circumstances in which a court must grant relief based on an attorney's mistake, inadvertence, surprise, or neglect. Neither this court nor any other court is at liberty to substitute its judgment for that of the Legislature in determining how far the statute should reach, no matter what good intentions may urge such an action." (Id. at p. 148.) It further explained: "The word 'default' has both a broad meaning and a narrow meaning. . . . As used in the mandatory provision of section 473(b), 'default' carries its narrower meaning. The mandatory provision of the statute requires the court to vacate not any 'default,' but only a 'default entered by the clerk . . . which will result in entry of a default judgment . . . .' By qualifying the word 'default' in this manner, the Legislature plainly conveyed its intent to use the word in its narrower sense. Thus, the mandatory provision of section 473(b) applies to a 'default' entered by the clerk (or the court) when a defendant fails to answer a complaint, not to every 'omission' or 'failure' in the course of an action that might be characterized as a 'default' under the more general meaning of the word." (Id. at p. 143, fn. omitted.) Another appellate court has stated: "The deliberate reference to the entry of a default by the clerk shows that the Legislature intended to limit the mandatory provision to default judgments, and to default judgments only. The statute provides no basis for extending the mandatory provision to judgments that are analogous to default judgments, even assuming, as we do not, that there can be general agreement about what is 'analogous' to a default judgment." (Prieto v. LoyolaMarymountUniversity(2005) 132 Cal.App.4th 290, 297.)

We find the analysis in the latter cases more cogent and consistent with established principles of statutory construction. "In construing a statute, our role is limited to ascertaining the Legislature's intent so as to effectuate the purpose of the law. [Citations.] We look first to the words of the statute because they are the most reliable indicator of legislative intent. [Citation.]" (Palmer v. GTE California, Inc. (2003) 30 Cal.4th 1265, 1271.) "If the language of the statute is not ambiguous, the plain meaning controls and resort to extrinsic sources to determine the Legislature's intent is unnecessary. (County of Santa Clara v. Perry (1998) 18 Cal.4th 435, 442 . . . .)" (Kavanaugh v. WestSonomaCountyUnionHigh School Dist. (2003) 29 Cal.4th 911, 919.) Furthermore, " '[i]t is a well recognized principle of statutory construction that when the Legislature has carefully employed a term in one place and has excluded it in another, it should not be implied where excluded.' (Ford Motor Co. v. County of Tulare (1983) 145 Cal.App.3d 688, 691 . . . ; see generally 2A Sutherland, Statutory Construction (4th ed. 1984 rev.) 47.23, p. 194.)" (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 725.)

Section 473, subdivision (b), plainly spells out what it meant by "default," that is a "default entered by the clerk" resulting in "entry of a default judgment." (See  585.) Moreover, only the discretionary provisions, not the mandatory provision, are applicable to orders. Thus, the mandatory provisions of section 473 do not apply to either an order after hearing enforcing child support arrears or to a judicial "default order" under Family Code section 4253.

The March 22, 2005 order enforcing payment of child support arrears and the December 2005 order denying relief under section 473, subdivision (b), are affirmed.

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ELIA, J.

WE CONCUR:

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RUSHING, P. J.

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PREMO, J.

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[1] All further statutory references are to the Code of Civil Procedure unless otherwise stated.

[2] On appeal, appellant contends that the commissioner improperly prohibited the filing and hearing of his motion for reconsideration and section 473 relief by "unilaterally removing the motions from the court's file," voiding the file stamped originals, and "falsely making it appear as if the motions were never filed . . . ." This argument improperly relies on facts outside the appellate record (see Cal.Rules of Court, rule 8.204 ["An appellant's opening brief must . . . [p]rovide a summary of the significant facts limited to matters in the record"]).

[3] Family Code section 4253 provides: "Notwithstanding any other provision of law, when hearing child support matters, a commissioner . . . may enter default orders if the defendant does not respond to notice or other process within the time prescribed to respond to that notice." (Italics added.)

[4] California Constitution, Article VI, section 21, reads: "On stipulation of the parties litigant the court may order a cause to be tried by a temporary judge who is a member of the State Bar, sworn and empowered to act until final determination of the cause." It appears appellant was not a "party litigant" within the meaning of this constitutional provision (cf. Sarracino v. Superior Court (1974) 13 Cal.3d 1, 5-11 [party who failed to make a timely response to notice of motion for temporary support and failed to appear at the hearing on the motion was not "party litigant"]; Reisman v. Shahverdian (1984) 153 Cal.App.3d 1074, 1089 ["A party who has notice of a proceeding but fails to appear or otherwise take part loses the status of party litigant"]) and the DCSS, the appearing party, by its conduct in not objecting as specified by Family Code section 4251, subdivision (c), impliedly stipulated to the commissioner hearing the child support matter as a temporary judge (cf. In re Horton (1991) 54 Cal.3d 82, 100 [stipulation to court commissioner acting as a temporary judge may be implied]). Appellant has not raised any constitutional challenge in this appeal.

[5] Former California Rules of Court, rule 298, authorized telephone appearances in any hearing at which witnesses were not expected to testify and required a party choosing to appear by telephone at a hearing to merely give notice by placing the phrase "Telephone Appearance" below the title of moving or opposition papers. (Former Cal. Rules of Court, rule 298(b), (d).) But this rule did not apply to family law cases. (Former Cal. Rules of Court, rules 200.1(2) and 298(a).)