Mediation Message No. 112



Most attorneys have moved to vacate a default under C.C.P. section 473(b). If that motion is denied and a second 473(b) motion is required, Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (July 20, 2015) no. S210804, 2015 Cal. LEXIS 5114 holds that the second motion must comply with section 1008, which imposes special requirements on renewed applications for orders a court has previously refused, including that the party shall submit an affidavit showing what “new or different facts, circumstances, or law are claimed” to justify the renewed application, and to also show diligence with a satisfactory explanation for not earlier having presented the new or different information.

In Zohar Construction, after the trial court entered a default judgment against Bellaire Townhouses for failing to file a responsive pleading to Zohar’s complaint, Bellaire filed for relief under section 473(b). The court denied the motion, finding the attorney’s declaration “not credible” that the default primarily was due to staffing errors. Bellaire then filed a second 473(b) motion in which the attorney declared the default occurred because he had been preoccupied with efforts to secure the return of an unrelated client’s files seized from his office as part of a criminal investigation. The court also found this explanation not credible, observing, in part, that the search warrant excuse was not “new facts” and could have been included in the first motion.

While concluding defendants had not satisfied the requirements of section 1008, the trial court nevertheless granted their renewed application for relief from default because it believed that section 473(b) took precedence over section 1008, and that relief under section 473(b) based on an attorney’s affidavit of fault is mandatory where no part of the fault is shown to be attributable to the attorney’s clients. On this basis, the court vacated the defaults and default judgment and directed the clerk to file defendants’ answer to the complaint.

The Court of Appeal reversed, holding that Bellaire’s failure to comply with section 1008 required the trial court to reject their renewed application for relief from default.

Zohar Construction affirmed the appellate court ruling, first finding that sections 1008 and 473(b) do not conflict, section 1008 “expressly applies to all renewed applications for orders the court has previously refused,” section 473(b) does not authorize unlimited authorizations of the same motion and then holding that section 473(b) motions for relief from default are not exempt from the requirements generally applicable to renewed motions under section 1008.

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067

(310) 201-0010

Copyright Michael D. Marcus, July 2015

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