Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court San Bernardino County No. RCV099856, Ben T. Kayashima, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Smyth Law Office and Andrew E. Smyth for Defendant and Appellant.
Thorpe and Thorpe, Vincent W. Thorpe, Brendan J. Thorpe and Joshua R. Reyes for Plaintiff and Respondent.
OPINION
MILLER, J.
Defendant Felipe Fuentes (Fuentes) appeals from an order of the trial court denying his motion to set aside a default judgment against him. He asserts that because his attorney filed an affidavit of fault, the trial court was required to set aside the judgment under Code of Civil Procedure section 473, subdivision (b). We disagree and affirm.
All further statutory references will be to the Code of Civil Procedure unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
On December 7, 2006, Plaintiffs CAG, LLC, Irene Kinoshita and Salvador Sandoval (collectively Plaintiffs) filed a complaint against Fuentes for specific performance of an agreement to purchase real property, which Fuentes is alleged to have breached by refusing to transfer the property to Plaintiffs, despite them having performed all of their obligations under the contract. A proof of service was filed with the trial court on January 8, 2007, indicating that Fuentes had been served on December 14, 2006. On January 24, 2007, Plaintiffs filed a request for entry of default, which was entered on the same day.
On February 13, 2007, Fuentes filed a motion to set aside the default based upon section 473, subdivision (b), asserting excusable neglect. In support of that motion Fuentes’s attorney, Smyth, averred that Fuentes first came to his office on January 3, 2007, and showed him a copy of the alleged contract. On that date Smyth wrote to Plaintiffs informing them that the letter was not a contract. Smyth had spoken to counsel for Plaintiffs, who never mentioned that a suit had been filed. Fuentes brought Smyth a copy of the complaint on January 25, 2007, and said that he had been sued. Smyth believed that Fuentes had just been served. However, he subsequently discovered that Plaintiffs had already requested a default. Fuentes filed a declaration indicating that he first visited Smyth on January 19, 2007. He could not remember if he showed Smyth a copy of the action at that time. He also averred that he did not deliver a copy of the action to Smyth until January 25, 2007, when he first paid money for representation. He was unaware that a default had been entered and believed that because the attorneys were talking, “everything was OK.” In opposition, counsel for Plaintiffs indicated that Smyth contacted her regarding the action on January 2, 2007, stating that Plaintiffs could not prevail on their cause of action for specific performance. On March 21, 2007, the trial court denied Fuentes’s motion on the ground that no excusable neglect had been shown. At the hearing Smyth argued that Fuentes had come in on January 3, and he did not recall seeing the complaint. Fuentes gave him the numbers to call Plaintiffs’ attorney. He also asserted that he was at fault for failing to ask Plaintiffs’ attorney if suit had been filed and requested that the trial court construe this as an affidavit of attorney fault. The trial court declined to do so as the matter was not before it.
A judgment was entered against Fuentes on April 11, 2007.
On April 12, 2007, Fuentes filed a second motion to set aside the default under section 473, subdivision (b), this one based on an affidavit of attorney error. In support of that motion, Smyth averred that Fuentes and his son, Luis Ramirez (Ramirez) first came to his office on December 29, 2006. Fuentes returned to Smyth’s office on February 2, 2007, to pay for his representation. After the denial of the first motion to set aside the default, he met with the two men who told him that they did not answer the complaint because Smyth had told them that he would get an extension. Smyth recalled that on December 28, 2006, he spoke to a man named Ramirez, who said his father had been sued concerning his house, and Smythe told him to make an appointment. In response to the man’s statement that he could not afford attorney fees at the time, Smyth told him that he would get him more time to answer. The next day, when Fuentes and his son came in, they were both introduced as Fuentes. Smyth did not connect them with the phone conversation the previous day. It was not until the conversation after the denial of the first motion to set aside the default that Smyth realized that the caller had been Fuentes’s son. He continued to state that Fuentes did not give him a copy of the complaint until January 25, 2007. On May 1, 2007, Smyth filed a declaration by Ramirez in which he stated that when he first contacted Smyth, he told him that they needed more time to answer. Smyth said that he would call and get more time. That is why an answer was not filed right away. On May 9, 2007, the trial court denied Fuentes’s second motion to set aside the default on the grounds that it did not find the declarations in support of the motion to be credible.
On June 7, 2007, Fuentes filed a notice of appeal purporting to appeal from the default judgment filed on April 11, 2007, and the May 9, 2007, order denying the second motion to set aside the default. However, in his briefs on appeal, he challenges only the trial court’s denial of his second motion to set aside the default. Therefore, that is the only issue that we will address. (Cal. Rules of Court, rule 8.204(a)(2); Marocco v. Ford Motor Co. (1970) 7 Cal.App.3d 84, 87, fn. 1 [issue not briefed deemed abandoned].)
DISCUSSION
A. Standard of Review
The mandatory relief provision of section 473, subdivision (b), requires that the court vacate the entry of default and default judgment whenever (1) an application is made no more than six months after entry of judgment, (2) the application is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise or neglect, and (3) the attorney’s mistake, inadvertence, surprise or neglect in fact caused the dismissal or entry of default. (§ 473, subd. (b).) When, as here, the issue on appeal turns on the trial court’s determination regarding the third of these requirements, the appellate court will affirm the trial court’s finding “so long as it is supported by substantial evidence. [Citation.]” (Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 927-928.) In determining this question, “the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion. [Citations.]” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.)
B. Substantial Evidence Supports the Trial Court’s Finding
In denying the motion, the trial court concluded that Smyth was trying to cover for the error made by Fuentes and found that the attorney’s affidavit of fault was not credible. This finding is supported by substantial evidence in the record. In the affidavits filed in support of the first motion to set aside the default, both Smyth and Fuentes averred that Fuentes did not inform Smyth that an action had been filed against him until after a request for entry of default had been filed by Plaintiffs. In other words, despite his repeated assertions to the contrary in his briefs on appeal, Smyth blamed Fuentes for failing to inform him that an action had already been filed against him. Smyth also faulted counsel for Plaintiffs for failing to inform him that an action had already been filed. In the affidavit filed in support of the second motion, Smyth faulted himself for not obtaining an extension to answer the complaint. However, the man to whom he stated he would obtain an extension to answer had identified himself on the phone as Ramirez. When Ramirez came into the office with Fuentes the next day, he did not identify himself as Ramirez, the caller from the previous day. Consequently, Smyth could not have known that it was the same person. In fact, Smyth avers that he did not make the connection until Ramirez finally told him that he had been the caller, after the first motion to vacate the default was denied. Smyth continued to aver that Fuentes did not inform him that an action had been filed until after the default had been entered.
This evidence supports the trial court’s conclusion that Smyth was merely attempting to cover for the fault of his client. (Cf. Todd v. Thrifty Corp. (1995) 34 Cal.App.4th 986, 991-992.) Ramirez failed to identify himself as the person for whom Smyth had offered to obtain an extension. It was reasonable for the trial court to conclude that Smyth could not be faulted for failing to make that connection. It was also reasonable for the trial court to conclude that the client’s failure to discuss the extension with Smyth and his failure to give Smyth a copy of the complaint during their first meetings was the cause of the default. Smyth cannot be blamed for failing to obtain an extension he did not know that he was supposed to request. Because there is substantial evidence in the record to support the trial court’s conclusion that Smyth’s actions did not cause the entry of default, it does not matter that other evidence would have supported a contrary conclusion. (Bowers v. Bernards, supra, 150 Cal.App.3d at pp. 873-874.)
As an alternative ground for denying the second motion to set aside the default the trial court considered whether the second motion was procedurally appropriate. It is unclear whether its determination in that regard formed a basis for its ruling. However, given our conclusion above, that substantial evidence supports the finding that attorney error was not the cause of the default, an analysis of the procedural issues is unnecessary to the resolution of this appeal. Consequently we will not discuss them.
C. Request for Sanctions
Plaintiffs filed a motion to correct the record on appeal, and included a request for sanctions for the cost of filing that motion in the amount of $1,500, pursuant to California Rules of Court, rule 8.124(g), which states that “[t]he reviewing court may impose monetary or other sanctions for filing an appendix that contains inaccurate copies or otherwise violates” the rule. Because Fuentes admitted that the record was inaccurate, we directed the clerk of this court to strike appellant’s appendix and directed Fuentes to serve and file a corrected version. At that time, we reserved ruling on Plaintiffs’ request for sanctions for consideration with the appeal.
According to the Advisory Committee comment on California Rules of Court, rule 8.124(g), “sanctions do not depend on the degree of culpability of the filing party . . . but on the nature of the inaccuracies and the importance of the documents they affect.” Plaintiffs pointed out, and Fuentes admitted, that in the original appellant’s appendix, the second motion for relief from default included a copy of a declaration from Ramirez that was not filed with the trial court at the time the motion was filed. However, Plaintiffs do not dispute that the same declaration was later filed as a supplement and was therefore before the trial court at the time of its ruling. The motion as presented in the appendix also mistakenly included a proof of service for another document and omitted the proposed answer to the complaint filed concurrently by Fuentes. A supplemental declaration by Fuentes in support of the second motion for relief from default omitted the declaration of Ramirez wherein he stated that he translated Fuentes’s declaration for him. Fuentes’s supplemental declaration dealt with the merits of the action, and did not pertain to the reason for the default. Finally, Fuentes’s response to Plaintiffs’ opposition omitted the second page, which contained his argument and Smyth’s signature. None of these inclusions or omissions concerned documents critical to the assertions made on appeal, with the possible exception of the addition of the Ramirez declaration to the second motion for relief from default. However, as that declaration was properly included in the record as the result of a subsequent filing, the error was of minimal consequence. While we certainly do not condone the filing of inaccurate records, nor the sloppy approach that leads to such errors, we do not believe that sanctions are merited in this case.
DISPOSITION
The order is affirmed. Respondents to recover their costs on appeal.
We concur: HOLLENHORST, Acting P. J. McKINSTER, J.