39 Cal. App. 5th 399
Cal. Ct. App. 5th2019Background
- Plaintiffs McClain and Harrell sued Karen Kissler (individually and doing business as "Alternatives") for breach of a grower contract and sought damages; plaintiffs amended and filed a lis pendens; defendants (Kissler, an attorney) moved to expunge the lis pendens and actively participated in litigation without filing an answer.
- Plaintiffs served the summons and complaint (substituted service) in January 2016; defendants did not file an answer or a motion to quash service within the usual 30‑day period.
- At a June 16, 2016 case management conference (CMC), the court warned defendants their response was overdue, ordered plaintiffs to take default by July 22, 2016 (or face sanctions), and said motions challenging service must be filed; defendants claim they misunderstood the minute order to permit them until July 22 to file a motion to quash or an answer.
- Plaintiffs requested and procured clerk's entry of default in late June 2016; defendants then filed multiple motions to set aside the default under Code Civ. Proc. § 473(b), including an attorney affidavit of fault by Kissler on behalf of Alternatives.
- Trial courts denied relief: judges found defendants knowingly failed to respond, that the CMC order could not reasonably be read as a safe harbor for defendants, and that Alternatives could not obtain mandatory relief because Kissler and Alternatives were effectively the same person/entity. Default judgment was entered and appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion in denying discretionary relief under § 473(b) for excusable mistake based on defendants' claimed misinterpretation of the CMC minute order | Plaintiffs argued defendants were warned and failed to act; plaintiffs timely entered default within the court's deadline | Defendants argued Kissler reasonably (but mistakenly) interpreted the CMC minute order to give them until July 22 to file a motion to quash or answer, so the default resulted from excusable mistake | Affirmed: court did not abuse discretion; record supports finding defendants acted knowingly/deliberately and their interpretation was not reasonable or credible |
| Whether Alternatives was entitled to mandatory relief under § 473(b) based on an attorney affidavit of fault filed by Kissler | Plaintiffs argued mandatory relief was unavailable because Kissler and Alternatives were not distinct for this purpose and client fault contributed | Alternatives argued Kissler’s sworn affidavit of fault required mandatory vacation of default/dflt judgment under § 473(b) | Affirmed: mandatory relief inapplicable because the court found Kissler and Alternatives were effectively one and the same; mandatory relief presupposes a distinct attorney and innocent client |
| Whether the appellate record deficiencies preclude reversal | Plaintiffs emphasized the trial court findings are supported and defendants failed to provide complete record | Defendants argued error in denial and relied on available transcripts and documents | Court noted omissions in appellant’s record and treated missing matter against appellants; nonetheless found substantial evidence supports denial |
| Whether parallel rulings (in related suit) showing Kissler not a party to the contract undermine the default judgment here | Plaintiffs noted parallel rulings but relied on procedural posture and timing | Defendants argued inconsistent outcomes (summary adjudication in related case) demonstrate unfairness and support vacatur | Rejected: appellate court declined to set aside default on that basis and emphasized enforcement of procedural rules and management of court dockets |
Key Cases Cited
- Zamora v. Clayborn Contracting Group, 28 Cal.4th 249 (Cal. 2002) (attorney negligence is imputed to client for discretionary § 473(b) relief; excusable mistake must be reasonable)
- Rappleyea v. Campbell, 8 Cal.4th 975 (Cal. 1994) (policy favors disposition on merits; denials of § 473 relief are scrutinized carefully but review remains abuse‑of‑discretion)
- Elston v. City of Turlock, 38 Cal.3d 227 (Cal. 1985) (very slight evidence may suffice to set aside default; inexcusable neglect bars relief)
- Fasuyi v. Permatex, Inc., 167 Cal.App.4th 681 (Cal. Ct. App. 2008) (illustrates court’s obligation to scrutinize defaults and consider warnings and cooperation)
- Benedict v. Danner Press, 87 Cal.App.4th 923 (Cal. Ct. App. 2001) (mandatory § 473(b) relief may apply where attorney fault was a cause in fact even if client also erred)
- Gutierrez v. G & M Oil Co., Inc., 184 Cal.App.4th 551 (Cal. Ct. App. 2010) (addresses application of § 473 to in‑house counsel and corporate parties)