Filed 9/18/17 Clawson v. Fulbright CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Tulare County. Lloyd L. Hicks, Judge.

David P. Weilbacher for Plaintiff and Appellant.

Christopher L. Haberman; Douglas S. Long for Defendants and Respondents.

-ooOoo-

Appellant, Gary C. Clawson, as trustee of his deceased mother’s trust, filed suit against respondents, Donald L. Fulbright, Castlewood Development, Inc. and Castlewood Partners, Inc., to collect on loans the decedent made to respondents as investments. Appellant personally served respondents with the complaint on February 2, 2015. Accordingly, a written response to the complaint was due on March 4, 2015. When that time passed without a response, appellant requested, and the superior court clerk entered, a default against respondents on March 13, 2015.

On August 5, 2015, respondents moved to set aside the default and default judgment under Code of Civil Procedure[1] section 473, subdivision (b). Respondents’ attorney, Douglas S. Long, filed an affidavit in support of the motion. Long stated that he scheduled a demurrer with the court clerk for April 23, 2015, but that when he “went to file the demurrer on or about March 25, 2015, the clerk informed [him] that a default had already been entered and they could not accept the filing.” Long next explained, “[a]t a subsequent case management conference, I informed the court of the situation and the court instructed me to file the instant motion.” Long attached a copy of the rejected demurrer to the motion. Long had originally signed this demurrer on March 5, 2015.

The trial court granted respondents’ motion to set aside the default. The court found respondents’ motion was timely filed and sufficient to support relief under section 473, subdivision (b), based on attorney mistake, inadvertence, surprise, or neglect.

Appellant challenges this order. According to appellant, Long’s affidavit is insufficient to support the grant of relief because it does not address any of the required exculpatory reasons.

The record supports the trial court’s conclusion that respondents met the prerequisites for relief under section 473, subdivision (b). Therefore, we will affirm the order.

DISCUSSION

Section 473, subdivision (b), allows a court to vacate a default on two distinct grounds. (Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1144 (Younessi).) First, the trial court has discretion to “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.” (§ 473, subd. (b).)

The second basis for relief is the attorney fault provision. (Younessi, supra, 244 Cal.App.4th at p. 1147.) This relief is mandatory and is available to vacate any default, default judgment, or dismissal “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.” (§ 473, subd. (b); Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 399 (Carmel, Ltd.).)

The purpose of the attorney fault provision “is to ‘relieve the innocent client of the burden of the attorney’s fault, to impose the burden on the erring attorney, and to avoid precipitating more litigation in the form of malpractice suits.’” (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839.) Thus, it protects only the innocent client, not the culpable client who participates in conduct that led to the default. (Carmel, Ltd. supra, 175 Cal.App.4th at p. 400.)

Unlike the discretionary ground for relief, a motion based on attorney fault need not show either diligence in seeking relief or that the error was excusable. (Younessi, supra, 244 Cal.App.4th at p. 1147; Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 439 (Martin Potts).) Because the court properly grants relief only when the attorney, rather than the client, is the cause of the default, default judgment, or dismissal, the focus is on who is to blame, not why. (Martin Potts, supra, 244 Cal.App.4th at p. 439.) Accordingly, in many cases, the reasons for the attorney’s mistake, inadvertence, surprise, or neglect are irrelevant. (Ibid.)

Here, the trial court concluded that relief from default was mandatory under section 473, subdivision (b). Appellant argues the trial court erred because Long’s affidavit did “not address any of the required exculpatory reasons” and the delay between entry of default and the motion was unreasonable.

Where, as here, the facts are in dispute as to whether the moving party met the prerequisites of the mandatory relief provision, we review the record to determine if substantial evidence supports the trial court’s ruling. (Carmel, Ltd., supra, 175 Cal.App.4th at p. 399.)

First, whether Long’s delay in filing the motion was unreasonable is of no consequence. Under the attorney fault provision, the only time constraint is that the attorney file the motion no more than six months after entry of the default. (§ 473, subd. (b).) Long applied for relief within the six-month window. Diligence is not required. (Younessi, supra, 244 Cal.App.4th at p. 1147.)

Further, the attorney need not either explain the reasons, or expressly take the blame, for the default. The affidavit and the record must simply demonstrate that the attorney, not the client, was at fault. (Carmel, Ltd., supra, 175 Cal.App.4th at pp. 400‑401.)

Long’s affidavit stated that he could not file the demurrer on or about March 25, 2015 because a default had already been entered. However, Long had signed the demurrer on March 5, 2015. If Long had not waited 20 days, the demurrer would have been filed before the default was requested and entered. Further, because the demurrer was prepared no later than March 5, it is reasonable to infer that respondents sought legal counsel before March 4, the deadline to respond to the complaint. Thus, the record demonstrates that it was Long’s neglect, not respondents’ neglect, that was responsible for the default. Accordingly, the trial court correctly vacated the default under the attorney fault provision of section 473, subdivision (b).

DISPOSITION

The order is affirmed. Respondents are awarded costs on appeal.[2]