Key Decisions

May 2013 – Relief From Default Was Unavailable

(filed under: Key Decisions Archive | May 20, 2013)

Relief From Default Was Unavailable

Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC
(Cal. Ct. of App., 2d Dist.), filed April 10, 2013

Even Zohar Construction & Remodeling sued Bellaire Townhouses, LLC and Samuel N. Fersht in a dispute regarding development and construction of a condominium project. After the trial court denied Bellaire and Fershts’ motion to compel arbitration, they failed to file a responsive pleading to the complaint. Based on this, the trial court entered their default.

Bellaire and Fersht moved for relief under Code of Civil Procedure section 473(b). That section requires the court to grant relief from a default if the moving party’s request is supported by “an attorney’s sworn affidavit attesting to his . . . mistake, inadvertence, surprise, or neglect . . . unless the court finds that the default . . . was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”

The trial court denied the motion, finding the attorney affidavit “not credible” and “too general.”

Bellaire and Fersht filed a second motion for relief with a more detailed declaration. The trial court granted this motion.

Even Zohar Construction appealed.

The Court of Appeal reversed and reinstated the default.

The purpose of the mandatory relief provision 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. But if the default occurred as a result of “an ‘intentional strategic decision’” by counsel, relief is not available. In order to obtain relief, the moving party must submit an affidavit from the attorney containing a straightforward admission of fault.

Code of Civil Procedure section 1008 deals with motions for reconsideration. The court found that the second motion was barred by Section 1008.

The court ruled that Bellaire and Fersht did not satisfactorily explain their failure to present the evidence proffered in their attorney’s second affidavit of fault in their first motion. It also declined to follow Standard Microsystems Corp. v. Winbond Electronics Corp., 179 Cal.App.4th 868 (2008).

In Standard Microsystems, the court concluded that Section 1008’s requirements do not apply to a renewed motion for mandatory relief from default based on an affidavit of attorney fault.

The decision ignored Section 1008’s clear and unambiguous language that this section applied to all renewal motions and undermined the Legislature’s goal to limit repetitive motions based upon facts that, with the exercise of due diligence, could have been presented at the first hearing. The court declined to follow.