Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC
61 Cal. 4th 830
| Cal. | 2015Background
- Plaintiff Even Zohar sued Bellaire Townhouses, Samuel Fersht and the Fersht Family Trust; defendants failed to plead and clerk entered defaults and default judgment for $1,701,116.70.
- Defendants moved under Code Civ. Proc. § 473(b) for relief from default, submitting an attorney affidavit blaming staff errors; the trial court denied the motion as not credible.
- Within 33 days defendants filed a renewed § 473(b) motion with a new attorney affidavit offering a different explanation (preoccupation with recovering client files after a DA search), supported by other declarations.
- The trial court found the renewed explanations not credible and that the renewed motion did not comply with § 1008, but nonetheless granted relief relying on Court of Appeal authority (Standard Microsystems) holding § 473(b) can supersede § 1008.
- The Court of Appeal reversed, holding renewed § 473(b) motions must meet § 1008 and that noncompliance deprives the trial court of jurisdiction to reconsider; the Supreme Court granted review.
- The California Supreme Court held § 1008 applies to renewed applications under § 473(b); because defendants conceded noncompliance, the Court affirmed the Court of Appeal and disapproved lower-court decisions to the contrary.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Code Civ. Proc. § 1008 governs renewed § 473(b) applications for relief from default | § 1008 applies to renewals and controls; renewed application must satisfy § 1008 | § 1008 does not apply because § 473(b) mandates relief "whenever" an application meeting § 473(b) requirements is made, allowing renewals without § 1008 constraints | § 1008 governs renewed § 473(b) motions; no conflict exists and statutes can be harmonized; § 1008‘s procedural requirements (including affidavit showing new/different facts and diligence) apply |
| Whether trial court could grant relief on renewed § 473(b) motion despite § 1008 noncompliance | Trial court erred by not enforcing § 1008; relief should be vacated | Trial court properly granted relief under § 473(b)’s mandatory provision notwithstanding § 1008 | Trial court lacked jurisdiction to consider the renewed motion because defendants conceded they did not satisfy § 1008; Court of Appeal judgment reinstating default judgment affirmed |
Key Cases Cited
- Le Francois v. Goel, 35 Cal.4th 1094 (Cal. 2005) (section 1008 does not limit court’s ability to reconsider its own interim orders)
- Standard Microsystems Corp. v. Winbond Electronics Corp., 179 Cal.App.4th 868 (Cal. Ct. App.) (municipal opinion holding § 473(b) may take precedence over § 1008)
- Garcia v. Hejmadi, 58 Cal.App.4th 674 (Cal. Ct. App.) (explaining § 1008 requires showing diligence and satisfactory explanation for not presenting facts earlier)
- California Correctional Peace Officers Assn. v. Virga, 181 Cal.App.4th 30 (Cal. Ct. App.) (interpreting § 1008 diligence and new/different facts requirement)
- Zamora v. Clayborn Contracting Group, Inc., 28 Cal.4th 249 (Cal. 2002) (noting § 473(b) purpose—to decide cases on the merits and relieve innocent clients for attorney fault)