Thursday, February 18, 2016

Need to Know Who Messed Up, But Not Why

Martin Posts & Assocs. v. Corsair, LLC, No. B263198 (D2d2 Jan 28, 2016)

Defendant in this case got defaulted for failing to answer. Six weeks after judgment was entered, it filed a motion for mandatory relief from default under Code of Civil Procedure § 473(b), attaching a declaration from its attorney taking the blame for the default. The declaration admitted that the failure to answer was at the feet of the attorney, but did not explain why the attorney neglected to file an answer. The trial court granted relief and the court of appeal here affirms.

Looking to the text of § 473(b), the Court holds that the declaration in support of a mandatory default motion must contain an admission by the attorney of mistake, inadvertence, surprise, or neglect. And based on the case law and purpose of the rule, it must further contain facts sufficient to show that it was the attorney, not the client, who was sufficiently the cause of the default. (There’s split of authority about mixed fault between attorney and client.) But as the court explains, the statute is concerned with “who is to blame, not why.” Unlike discretionary relief from default (also, somewhat confusingly, addressed in § 473(b), mandatory relief applies to both excusable and inexcusable conduct. So—provided the admission of fault and causation elements are satisfied—the attorney need not provide any detail in his or her explanation of why the mistake was made.

Affirmed.

No comments:

Post a Comment