Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, James Kaddo, Judge, Los Angeles County Super. Ct. No. LC071723
Law Offices of Robert S. Altagen and Robert S. Altagen for Cross-complainant and Appellant.
Horvitz & Levy, David M. Axelrad, Karen M. Bray; Law Offices of Robert L. Starr, Robert L. Starr and Adam M. Rose for Cross-defendants and Respondents.
KRIEGLER, J.
Cross-complainant and appellant Gayle Salter appeals from an order granting a motion to set aside a default judgment against cross-defendants Sondra Zeldin, Lorrie Sluder and Carpet Market Outlet (CMO) in this action arising out of Salter’s purchase of flooring materials from CMO. Salter contends the trial court had discretion to deny Sondra, Sluder, and CMO’s motion for relief from default based on an attorney affidavit of fault pursuant to Code of Civil Procedure section 473, subdivision (b). We affirm.
Because more than one party has the last name Zeldin, they will be referred to individually by their first names.
All further references are to the Code of Civil Procedure unless otherwise noted.
FACTS AND PROCEDURAL BACKGROUND
Salter purchased flooring materials from CMO. A dispute arose and Salter went to the store with her friend Lewis Lipsey. There was a confrontation at the store.
On June 13, 2005, Attorney Robert Starr filed a complaint on behalf of Joseph Zeldin against Salter and Lipsey alleging assault, intentional infliction of emotional distress, negligence, statutory violations, and elder abuse. On September 8, 2005, Salter and Lipsey filed an answer. Salter filed a cross-complaint against Joseph, Sondra, Sluder, and CMO for breach of contract, conversion, fraud, assault, battery, conspiracy, and negligent infliction of emotional distress. Salter alleged that Joseph and Sondra owned CMO and Sluder was a CMO employee. The cross-complaint requested damages according to proof.
On October 18, 2005, Joseph filed a demurrer and a motion to strike portions of the cross-complaint. Apparently, Joseph died in November 2005. Salter obtained new counsel, Attorney Robert Altagen. On December 21, 2005, the trial court sustained the demurrer to the cross-complaint with leave to amend as to four causes of action and overruled the demurrer as to the remaining causes of action. The trial court allowed 20 days leave to amend.
On January 4, 2006, Salter requested an entry of default against Sondra, Sluder, and CMO. In February 2006, Sondra, Sluder, and CMO filed a motion for relief from default pursuant to section 473, subsection (b), based on an attorney affidavit of fault. No proposed pleadings were attached with the motion. Attorney Starr submitted an affidavit stating that he had not filed responsive pleadings because he believed the parties had agreed to stay the proceedings in order to discuss settlement.
On February 17, 2006, Salter requested entry of a default judgment. Judgment was entered that day in the amount of $25,920.78, including attorney fees of $20,000. At a hearing on February 28, 2006, the trial court noted that no amended cross-complaint had been filed and the entry of default was technically void. Moreover, no statement of damages had ever been served.
On March 1, 2006, Salter filed an opposition to the motion for relief from default. Salter filed a statement of damages on March 10, 2006, totaling $25,920.78. A hearing was held on the motion for relief from default on March 14, 2006. The trial court granted the motion for relief from default, vacated the default, and gave 20 days to answer. On March 21, 2006, Salter filed an amended cross-complaint against Sondra, Sluder, and CMO for breach of contract, conversion, fraud, assault, and battery.
The statement of damages listed $1,500 for Salter’s purchase deposit, $500 for a couch taken during the carpet removal, $600 for therapy, $2,350 for a private investigator to locate Sondra and Sluder, $824.78 for costs, $146 for interest, and $20,000 for attorney fees. No amount was listed for pain and suffering.
A status conference was held on April 13, 2006. An attorney other than Attorney Starr appeared for Sondra, Sluder, and CMO, and represented that a demurrer would be filed to the amended cross-complaint. The status conference was continued to May 11, 2006. Notice was waived.
There is no reporter’s transcript of the April 13, 2006 hearing in the record.
On April 26, 2006, Sondra, Sluder, and CMO filed an answer to the amended cross-complaint. However, Attorney Starr failed to sign the answer. At the status conference on May 11, 2006, there was no appearance for Sondra, Sluder, and CMO. The trial court found that Sondra, Sluder, and CMO were present on April 13, 2006, and aware of the May 11, 2006 status conference. The trial court granted Salter’s motion to strike the answer to the amended cross-complaint, noting that the answer was not signed. The court entered a default against Sondra, Sluder, and CMO.
There is no reporter’s transcript for the May 11, 2006 hearing in the record.
On July 3, 2006, Sondra, Sluder, and CMO filed a motion to vacate the striking of the answer and the defaults against them. Attorney Starr filed an affidavit admitting fault in failing to sign the answer and failing to appear at the status conference. He apologized for inadvertently failing to sign the pleading. He also took full responsibility for his office’s failure to properly calendar the status conference. A signed copy of the answer to the amended cross-complaint was attached to the motion to vacate the defaults.
A default prove-up hearing was held on July 7, 2006. Attorney Adam Rose, an associate of Attorney Starr, asked that the hearing be continued to a date after the hearing on the motion to vacate the default. Salter was unwilling to continue the hearing. Salter was 33 at the time of the hearing. She testified that she had spent $1,647 for another carpet company to complete the work in her condominium and paid $600 for psychological counseling. She requested attorney fees based on a provision of the carpet purchase agreement. She had paid a retainer of $10,000 to her first attorney and an additional retainer of $10,000 to her present counsel. She also paid a private investigator to locate Sondra and Sluder in order to serve them. She requested damages of $30,000 for pain and suffering.
Later that day, the trial court entered a default judgment for Salter in the amount of $35,928.78, which included damages of $30,000, costs of $928.78, and a reduced amount for attorney fees of $5,000. The trial court crossed out amounts listed for prejudgment interest, the flooring deposit, the couch, therapy, and the private investigator. Apparently, Sondra, Sluder, and CMO filed a notice of appeal from the judgment, but they abandoned the appeal in August 2006.
The hearing date for the motion to vacate the default was advanced to September 1, 2006, to accommodate Attorney Altagen’s prepaid vacation. Salter filed an opposition to the motion to vacate the defaults on the grounds that the failure to sign the answer or appear at the status conference was a defense strategy, rather than the result of attorney mistake, inadvertence, surprise, or neglect. Sondra, Sluder, and CMO filed a reply.
A hearing was held on September 1, 2006. Salter argued that there was no affidavit from Sondra, Sluder, or CMO in support of the motion. The trial court stated that it was without discretion under section 473. Salter argued that the trial court had discretion to deny the motion if the attorney fault provision had been abused as part of a litigation strategy. The trial court stated that the file was still with the appellate department and the court had no recollection of the case. The trial court stated that it would give Attorney Starr a second chance, and in accordance with its tentative ruling, the court granted the motion for relief from the defaults entered on May 11, 2006, and the default judgment entered on July 7, 2006. The trial court vacated the defaults and the default judgment. However, the court ordered that Attorney Starr pay $2,500 to Salter as sanctions. The signed copy of the answer to the amended cross-complaint was deemed filed. Salter filed a timely notice of appeal.
DISCUSSION
Salter contends the trial court had discretion to deny the motion to vacate which it failed to exercise. This contention is clearly incorrect.
“The mandatory relief provision of section 473, subdivision (b) provides in relevant part: ‘Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.’
“‘Prior to its amendment in 1988, subdivision (b) of section 473 provided solely for discretionary relief and did not include this provision for mandatory relief.’ [Citation.] The purpose of the mandatory relief provision was ‘“‘“to relieve the innocent client of the burden of the attorney’s fault, to impose the burden on the erring attorney, and to avoid precipitating more litigation in the form of malpractice suits.” [Citations.]’ [Citation.]”’ [Citations.] ‘Relief is mandatory when a complying affidavit is filed, even if the attorney’s neglect was inexcusable.’ [Citation.]” (SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 516-517.)
“If the prerequisites for the application of the mandatory relief provision of section 473, subdivision (b) exist, the trial court does not have discretion to refuse relief. [Citation.] Where, as here, the applicability of the mandatory relief provision does not turn on disputed facts and presents a pure question of law, our review is de novo. [Citation.]” (SJP Limited Partnership v. City of Los Angeles, supra, 136 Cal.App.4th at p. 516.)
In this case, the trial court found that the motion to vacate the defaults and the resulting default judgment met the requirements of section 473, subdivision (b), and therefore, the trial court properly granted the motion. The application for relief was made within six months of the entry of judgment and was accompanied by Attorney Starr’s affidavit attesting to his fault. Based on Attorney Starr’s affidavit, the trial court was entitled to find that he inadvertently failed to sign the answer that he filed with the court and miscalendared the continuation of the status conference. Attorney Starr’s failure to sign the answer was easily remedied and he was not given the opportunity to do so prior to the entry of the defaults. Moreover, it was not Attorney Starr, but rather another attorney from Attorney Starr’s office who appeared at the April 2006 status conference, leading to the miscalendaring of the May 11, 2006 status conference. The trial court’s finding that the requirements of section 473, subdivision (b) had been met was supported by substantial evidence.
Salter contends it was error for the trial court to rule on the motion to vacate without access to the entire court file or an independent recollection of the prior proceedings. This is incorrect. The minute order reflects that the trial court reviewed the pleadings filed in connection with the motion to vacate the defaults. The parties set forth the history of the case in the pleadings and during argument. The parties submitted relevant evidence in connection with the motion. Salter has not identified any part of the record not before the court that was relevant to the motion to vacate.
Salter contends for the first time on appeal that the default judgment in the instant case does not meet the requirements of section 473, subdivision (b), because it was not a default judgment entered after a default for failure to answer. Arguments raised for the first time on appeal are considered waived. (Steele v. Totah (1986) 180 Cal.App.3d 545, 551-552.) Moreover, Salter failed to provide a reporter’s transcript of the May 11, 2006 hearing or an adequate substitute, such as a settled statement under California Rules of Court, rule 8.137, which would have enabled this court to review the reason the default judgment was entered. The evidence in the record on appeal shows that the trial court struck the answer and entered defaults for failure to answer. We decline to address the contention.
We note the trial court expressly stated that it was giving Attorney Starr a second chance. This statement shows the court intended to exercise any discretion that it might have to grant the motion to vacate the defaults. The defaults and the default judgment were properly vacated in this case.
DISPOSITION
The judgment is affirmed. Sondra Zeldin, Lorrie Sluder, and Carpet Market Outlet are awarded their costs on appeal.
We concur: ARMSTRONG, Acting P. J., MOSK, J.