Opinion
Dеfendants Mohsen Tavoussi and Orange County Surgery Center, Inc., challenge the trial court’s denial of their application under Code of Civil Procedure section 473 1 to vacate a $147,217.07 default judgment against them in favor of plaintiff Carmel, Ltd. (Carmel). Defendants contend the trial court erred when it determined defendants failed to file an attorney affidavit of fault and found they failed to file a proposed answer, a necessary step to obtain relief.
We conclude the trial court erred. Although defendants’ counsel attempted to deflect blame from himself, his own declaration in support of defendants’ application demonstrated that counsel’s neglect was the cause of defendants’ failure to answer and the entry of default. Moreover, although the record does not refleсt that defendants filed a proposed answer with their application, defendants made the proposed answer available for the court’s inspection and review. Accordingly, we conclude defendants substantially complied with the requirements of the mandatory provision of section 473, subdivision (b). Accordingly, we reverse and remand.
I
Factual and Procedural Background
Carmel sued defendants over a dispute regarding the management of their jointly owned medical office building. On November 3, 2006, the trial court overruled defendants’ demurrer to Carmel’s complaint and ordered defendants to answer within 15 days. At that time, defendants’ counsel of record was Moore & Associates (Moore Firm). Despite the trial court’s order that defendants answer within 15 days, the Moore Firm never filed an answer on defendants’ behalf. On March 1, 2007, defendants substituted Ronald J. LеMieux as counsel of record in place of the Moore Firm. After substitution, LeMieux made no effort to file an answer on defendants’ behalf, or otherwise protect defendants from default.
On October 18, 2007, LeMieux filed on behalf of defendants a motion to vacate the default judgment, based on both the discretionary and mandatory provisions of section 473, subdivision (b). Attached to the motion was LeMieux’s declaration, in which LeMieux explained why he failed to file an answer on behalf of defendants. LeMieux stated the Moore Firm delayed providing the case file to him until “late March, 2007.” When the file arrived, LeMieux discovered a notice and an amended notice of the demurrer hearing, but nothing in the file indicated the trial court had overruled the dеmurrer or ordered defendants to answer. LeMieux called Carmel’s counsel to introduce himself and discuss procedural issues relating to the case. Carmel’s counsel, however, did not mention defendants’ failure to answer the complaint.
LeMieux admitted receiving the request for entry of default Carmel mailed on March 21, 2007, but noted it had not been completely filled out. After receiving the request, LeMiеux checked the case summary listings on the trial court’s Web site and did not see a request for default on file. LeMieux took no action on the matter because he believed the demurrer defendants previously had filed was still pending. LeMieux noted that he did not receive a copy of the April 27, 2007, request for entry of default, despite a proof of service reflecting he was served by mail. When LeMieux received the later request to enter default and the default prove-up papers on August 10, 2007, he assigned someone from his office to go to the court and review the case file. As a result, LeMieux learned for the first time a default had been entered against defendants.
The trial court denied defendants’ motion, finding: “There is no affidavit of fault and no proposed answer attached to thе motion. Counsel’s failure to follow up for many months when he thought a demurrer was pending but did not contact opposing counsel or review the file would not appear to be excusable neglect.” Defendants now appeal.
Discussion
A. Defendants’ Appeal Is Timely
Carmel contends defendants’ appeal is untimely and must be dismissed. We disagree.
California Rules of Court, rule 8.104(a), provides; “Unless a statute or rule 8.108 provides otherwise, a notice of appeal must be filed on or before the earliest of: [J[] (1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the judgment, showing the date either was mailed; [f] (2) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitlеd ‘Notice of Entry’ of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or [f] (3) 180 days after entry of judgment.”
The time to appeal in California Rules of Court, rule 8.104 was extended in the present case by rule 8.108(c), which provides: “If, within the time prescribed by rule 8.104 to appeal from the judgment, any party serves and files a valid notice of intention to move—or a valid mоtion—to vacate the judgment, the time to appeal from the judgment is extended for all parties until the earliest of: [][] (1) 30 days after the superior court clerk mails, or a party serves, an order denying the motion or a notice of entry of that order; [j[] (2) 90 days after the first notice of intention to move—or motion—is filed; or [f] (3) 180 days after entry of judgment.” Rule 8.108(a) provides: “This rule operates only to extend the timе to appeal otherwise prescribed in rule 8.104(a); it does not shorten the time to appeal. If the normal time to appeal stated in rule 8.104(a) is longer than the time provided in this rule, the time to appeal stated in rule 8.104(a) governs.”
With these guidelines in mind, we note the court entered judgment on September 19, 2007. The record does not reflect that the clerk mailed defendants either a noticе of entry of judgment or a file-stamped copy of the judgment, nor that a party to the case served such documents. Thus, the time to appeal ended, at a minimum, 180 days after judgment was entered. Defendants filed their notice of appeal on March 13, 2008, 175 days after entry of judgment. Accordingly, the appeal is timely.
B. The Trial Court Erred in Denying Defendants’ Motion to Vacate
1. LeMieux’s Declaration Supports Mandatory Relief
Section 473, subdivision (b), authorizes the trial court to relievе a party from a default judgment entered because of the party’s or his or her attorney’s mistake, inadvertence, surprise, or neglect. The section provides for both mandatory and discretionary relief. Mandatory relief is available “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 swоrn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect . . . .” (§ 473, subd. (b).) “[I]f the prerequisites for the application of the mandatory provision of section 473, subdivision (b) exist, the trial court does not have discretion to refuse relief.”
(Leader v. Health Industries of America, Inc.
(2001)
“The ‘attorney fault’ language was added to section 473 in 1988. Prior to that time, a litigant who suffered a default or default judgment due to inexcusable attorney error could only obtain relief if he or she could persuade
Here, the trial court denied the motion in рart because defendants did not file an attorney affidavit of fault. True, defendants failed to file a declaration from the Moore Firm, which represented plaintiff at the time the answer was first due. Moreover, defendants’ later counsel, LeMieux, argued at the hearing: “I did not file a declaration of fault because I was not at fault. My law firm was not at fault.” But without expressly taking the blame, LeMieux’s declаration in support of the motion unmistakably demonstrated his fault.
Specifically, in his declaration, LeMieux stated he began representing defendants on March 1, 2007, some 57 days before default was entered on April 27, 2007. There is no question defendants could have avoided a default judgment had LeMieux acted with any reasonable degree of diligence. LeMieux admitted he knew an answer had not been filed, explаining he believed the demurrer previously filed by the Moore Firm was still pending. Yet, LeMieux knew the demurrer had been filed in September 2006, and was aware of only one amended hearing notice, which set November 3, 2006, as the hearing date for the demurrer. These facts at least should have prompted LeMieux to contact opposing counsel and ask about the status of the demurrer. Although LeMieux spokе with opposing counsel in late March 2007, “to discuss procedural matters relating to this case,” LeMieux failed to ask about the status of the demurrer.
Indeed, even after LeMieux received a copy of a request for entry of default in March 2007 he undertook no action to ascertain the status of the demurrer until after the court entered judgment months later in August 2007. As the trial court noted in its order: “Counsel’s failure to follow up for many
Conversely, nothing in the record demonstrates any neglect or wrongdoing on the part of LeMieux’s clients. Where “there is
no evidence
that [movants] were aware of counsel’s decision to delay filing an answer, or that they suggested or agreed that he should do so[,] . . . they do not share responsibility for the delay.”
(Solv-All, supra,
2. Defendants Substantially Complied with the Requirement to Submit a Proposed Answer with the Motion
The discretionary relief provision of section 473, subdivision (b), provides that the “[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 . . . .” The mandatory relief provision, however, does not expressly include this requirement, but merely requires the application to be “in proper form.” (§ 473, subd. (b).) The question is whether the Legislature intended the phrase “in proper form” to encompass the mandate that the proposed answer accompany the application. We conclude the answer is yes.
The purpose of the proposed pleading requirement of section 473 is to compel the delinquent party to demonstrate his or her good faith and readiness to proceed on the merits.
(Job
v.
Farrington
(1989)
These policies apply with even greater force when mandatory relief is being sought. Under the discretionary provisions of section 473, subdivision (b), a trial cоurt may consider whether attorneys or their clients are abusing the rules or causing needless delay in deciding whether to grant relief. Because relief under the mandatory provision must be granted when the requisites of the statute are met, a trial court would have little or no ability to curb abuses if a proposed answer were not required. An attorney could repeatedly miss deadlines to file an answer, аnd the trial court would be required to excuse resulting defaults so long as the attorney confessed fault on each occasion. Such an interpretation would undermine the purposes of the statute. Thus, we interpret the phrase “in the proper form” to include the requirement that a proposed answer accompany the application for mandatory relief.
By including the proposed answer requirement, however, we also apply the case law interpreting it. We must liberally construe the provisions of section 473.
(Zamora
v.
Clayborn Contracting Group, Inc.
(2002)
Beсause the purpose of the proposed answer requirement is to provide the delinquent party with an opportunity to show good faith and readiness to answer the allegations of the complaint, courts have held substantial compliance to be sufficient. On this point, our Supreme Court observed; “The plain object of the provision was simply to require the delinquent party seeking leavе to contest on the merits, to show his good faith and readiness to at once file his answer in the event that leave is granted by producing a copy of the proposed answer for the inspection of his adversary and the court.”
(County of Los Angeles v. Lewis
(1918)
Here, the record does not reflect that defendants included a copy of their proposed answer with their motion. But there is evidence defendants prepared
One of the defendants, Mohsen Tavoussi, submitted a declaration in support of the motion, in which he represents: “I have a good and meritorious defense to the complaint as shown by the proposed Answer which is filed herewith.” (Italics added.) Although the record is silent on whether defendants served the proposed answer on Carmel, we note that Carmel did not allege defendants hаd failed to include a proposed answer in their opposition to the motion. At the hearing on the motion, defendants’ counsel protested the court’s tentative ruling, representing, “I did attach an answer, your Honor, that was filed.” When the trial court reviewed the file and did not find the proposed answer, defendants’ counsel told the court he had a copy of the proposed answer that he had filed with the motion. The trial court did not ask to review the copy, but simply replied, “Okay. The ruling stands.” At our request, defendants have lodged a copy of their proposed answer, reflecting an execution date of October 18, 2007, the same day defendants’ counsel executed the motion.
We do not know whether defendants’ counsel inadvertently failed to accompany the motion with their proposed answer, or whether the proposed answer simply did not find its way into the court’s file. But we perceive no reason why the court could not have reviewed the proposed answer proffered at the hearing and ordered it filed. Carmel did not assert the absence of a proposed answer as a basis for opposing the motion and would have suffered no prejudice if the court allowed defendants to file the answer at the hearing.
The purpose of the mandatory relief provision of section 473 is “ ‘to alleviate the hardship on parties who
lose their day in court
due solely to an inexcusable failure to act on the part of their attorneys.’ ”
(Zamora, supra,
Disposition
The judgment is reversed, and the cause remanded for further proceedings in accordance with this opinion. In the interests of justice, each side is to bear its own costs of this appeal.
Bedsworth, Acting P. J., and Fybel, J., concurred.
On June 26, 2009, the opinion was modified to read as printed above.
Notes
All statutory references are to the Code of Civil Procedure, unless otherwise noted.