HELGA SCHMIDT v. JENNIFER LUETKEMEYER (2011)

Court of Appeal, Second District, California.

HELGA SCHMIDT, Plaintiff and Respondent, v. JENNIFER LUETKEMEYER, Defendant and Appellant.

2d Civil No. B229667

Decided: June 23, 2011

Jennifer Luetkemeyer appeals from an order denying her motion to set aside a default and default judgment.  (Code Civ Proc., §§ 473, subd. (b);  473.5.) 1 The trial court denied the motion, finding no excusable neglect.   We reverse.   Where the motion for relief from default is based on an attorney affidavit of fault, relief is mandatory.  (Ibid.;  Metropolitan Service Corp. v. Casa de Palms, Ltd. (1995) 31 Cal.App.4th 1481, 1486–1487.)   Procedural History Helga Schmidt was rear-ended by appellant on March 5, 2008, attempted to negotiate a settlement with appellant's insurer (GEICO), and filed suit for damages on February 26, 2010.   Schmidt served the summons and complaint by publication and entered default against appellant on August 9, 2010.   The trial court awarded $39,314.03 damages and $705 costs at an August 10, 2010 default prove-up hearing.   Schmidt served the judgment on GEICO on August 19, 2010.   Appellant filed a motion to vacate the default and default judgment about a month later. (§§ 473, subd. (b);  473.5.) The moving papers stated that GEICO assigned the file to staff attorney Laureen A. Monty after GEICO was unable to settle the case.   On March 16, 2010, Monty sent a letter to appellant, requesting that appellant notify Monty if and when appellant received the summons and complaint.   Monty phoned Schmidt on March 30, 2010, to advise Schmidt that Monty was representing appellant and asked Schmidt “to notify me if she served the summons and complaint.”   Mandatory Relief Citing Tammen v. County of San Diego (1967) 66 Cal.2d 468, the trial court denied the motion and found:  “It is not the purpose of remedial statutes to grant relief from defaults that result from inexcusable neglect of parties or their attorneys in performing obligations to their clients.”   Tammen predates the 1988 amendment to section 473, subdivision (b) which provides that relief from default is mandatory if the motion is based on an attorney affidavit of fault.2  “Prior to 1988, the statute allowed relief, in the trial court's discretion, where the order sought to be vacated was the product of the ‘mistake, inadvertence, surprise, or excusable neglect’ of the moving party or of those – primarily his attorneys – whose conduct was imputed to him. (§ 473(b).)  In 1988 the Legislature inserted language mandating relief where the order was due to attorney fault, whether excusable or not.   This provision was manifestly intended to end the prior regime insofar as it had relegated victims to inexcusable attorney neglect to a separate action for malpractice.   [Citation.]”  (Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4th 868, 893–894, fn. omitted.)   Appellant's motion was based on an attorney affidavit of fault.   The trial court, however, found that “[t]he primary issue on this kind of a motion is whether the neglect asserted is excusable or inexcusable.”   It was troubled that GEICO told Schmidt not to contact appellant as settlement negotiations dragged on for months.   During this time, appellant moved out of the Santa Barbara area, Schmidt could not find appellant, and it was unclear whether GEICO even knew where appellant was.   The trial court denied relief from default because Schmidt had no duty to do GEICO's “work for it․  This Court can only find inexcusable neglect from the facts here.   This was not a complex situation;  the defendant was not to be found;  the carrier knew about the law suit being filed;  easily could have or should have monitored the case;  easily could have told plaintiff they would accept service if the defendant could not be found;  did not do so;  now blames the plaintiff for misleading it.”   Attorney Affidavit of Fault Regardless of how GEICO's neglect contributed to the default, it is uncontroverted that appellant was represented by counsel (Monty).   Schmidt admitted receiving a March 30, 2010 phone message from GEICO's legal department that appellant “is represented” and not to contact appellant.   On September 1, 2010, Monty was surprised to learn that a default had been entered and blamed Schmidt for not calling back or serving documents on GEICO before the judgment was entered.   Monty called it a matter of “professional courtesy” and declared that “I should have been more diligent and careful to review the court's website to determine if plaintiff had taken action with regard to service of her summons and complaint.”   Under the mandatory relief provisions of section 473, subdivision (b), a trial court is required to grant relief if the defendant's attorney admits neglect, even if the neglect is inexcusable.  (See Metropolitan Service Corp. v. Casa de Palms, Ltd., supra, 31 Cal.App.4th at p. 1488.)  “The only limitation is when the court finds the default was not in fact the attorney's fault, for example when the attorney is simply covering-up for the client.  [Citation.]”  (Rogalski v. Nabers (1992) 11 Cal.App.4th 816, 821;  see also Metropolitan Service Corp. v. Casa de Palms, Ltd., supra, 31 Cal.App.4th at p. 1488.) 3  There is no evidence that Monty was “covering up” for appellant.   She did admit that her neglect, in whole or part, caused the default and default judgment.   This is sufficient as a matter of law.   (Compare Milton v. Perceptual Development Corp. (1997) 53 Cal.App.4th 861, 867 [lawyer's negligence need not be sole cause of default], with Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1188 [affidavit of fault by non-attorney employee of insurance company does not trigger mandatory relief under section 473, subdivision (b) ].) Where the attorney admits fault and “confirms that any act or omission, careless or deliberate, which led to the entry of the default was done without the client's knowing participation, ․ relief under the mandatory provisions of section 473, subdivision (b) is required.”  (Solv–All v. Superior Court (2005) 131 Cal.App.4th 1003, 1008, 1012.)