In re Marriage of Grant

• Decision Date: 05 August 2021
• Docket Number: E074693
• Court: California Court of Appeals
• Parties: In re the Marriage of JAY and BOBBIE JEAN GRANT. JAY GRANT, Respondent, v. BOBBIE JEAN GRANT, Appellant.

In re the Marriage of JAY and BOBBIE JEAN GRANT.

JAY GRANT, Respondent, v. BOBBIE JEAN GRANT, Appellant.

E074693

California Court of Appeals, Fourth District, Second Division

August 5, 2021

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County.No. SWD1800093James T. Warren, Judge.(Retired Judge of the Riverside Sup Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Law Office of Patrick L. McCrary and Patrick L. McCrary for Appellant.

Westover Law Group and Andrew L. Westover for Respondent.

FIELDS J.

I.INTRODUCTION

On December 12, 2019, the trial court denied appellantBobbie Jean Grant's^[1]motion seeking to set aside an order pursuant to Code of Civil Procedure^[2] section 473, subdivision (b).The trial court determined that mandatory relief under the statute was not warranted because Bobbie failed to submit an attorney affidavit of fault, and the order that Bobbie sought to set aside was not a default, default judgment, or dismissal.It further determined that discretionary relief was not warranted because the underlying order was entered as a result of inexcusable neglect by Bobbie's attorney at the time.

Bobbie appeals, arguing the trial court abused its discretion in denying her mandatory and discretionary relief under section 473.Specifically, Bobbie contends: mandatory relief under the statute should be available where the evidence is substantially similar to an attorney affidavit of fault mandatory relief should be available for any adverse order that is procedurally similar to a default; and discretionary relief should have been granted because the law favors resolution of disputes on the merits.We find no merit in Bobbie's arguments, conclude the record does not show an abuse of discretion warranting reversal, and affirm the trial court's order.

II.FACTS AND PROCEDURAL HISTORY

RespondentJay Grant and appellant Bobbie were married in 1983.On January 4, 2018, the trial court entered a judgment of legal separation^[3] pursuant to a written settlement agreement executed by both parties.

On May 11, 2018, Bobbie filed a request to set aside the judgment of legal separation pursuant to Family Code section 2121^[4](2121 motion).After multiple continuances, the matter was set for a contested evidentiary hearing on April 5, 2019, as well as a trial on the issue of spousal support, should the judgment be set aside.

When the matter was initially called on April 5, 2019, neither Bobbie nor her counsel of record appeared.Eventually, the trial court contacted Bobbie's counsel via telephone in open court, and Bobbie's counsel ultimately appeared telephonically for the hearing.After an extensive colloquy in which Bobbie's counsel insisted there was no hearing or trial scheduled because the matter had been continued to a future date, counsel ultimately conceded that she had been mistaken and requested a continuance.The trial court denied the request for a continuance and, thereafter, denied Bobbie's 2121 motion.The record does not include a statement of decision with respect to this matter and does not indicate Bobbie's counsel requested a statement of decision.

On May 24, 2019, Bobbie filed a second motion to set aside the January 2018 stipulated judgment.Following a hearing in August 2019, the trial court denied the motion as untimely.

On October 4, 2019, Bobbie filed a request for order seeking to set asidethe trial court's April 5, 2019 order denying her 2121 motion.Specifically, Bobbie sought relief pursuant to section 473(473 motion).^[5]

On November 18, 2019, the trial court held a hearing on Bobbie's 473 motion and denied the request.In a statement of decision, the trial court concluded that Bobbie was not entitled to mandatory relief under section 473 because she failed to submit an attorney declaration attesting to fault, and the order denying her 2121 motion was not a default, default judgment, or dismissal.Finally, the trial court concluded that discretionary relief under section 473 was unavailable because Bobbie did not request discretionary relief, and the conduct of Bobbie and her prior attorney of record did “not rise to the level of excusable neglect as defined by statute.”Bobbie appeals from this order.

III.DISCUSSION

A.General Legal Principles and Standard of Review

Section 473, subdivision (b), provides that “[t]he court may... relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”Additionally, the statute provides that, “[n]otwithstanding 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..., or (2) resulting default judgment or dismissal....”(Ibid.)

“Although this bifurcation is not demarcated in any internal subtitling, it is plainly evident in the textual structure of the statute” that the relief afforded includes “a discretionary provision, which applies permissively, and a mandatory provision, which applies as of right.”(Minick v. City of Petaluma(2016)3 Cal.App.5th 15, 25;seeMartin Potts & Associates, Inc. v. Corsair, LLC(2016)244 Cal.App.4th 432, 438(Martin Potts)[describing statute as providing “two distinct provisions for relief”].)The “purely discretionary” form of relief “depends upon the existence of ‘mistake, inadvertence, surprise, or excusable neglect,' ” and the “mandatory relief” is granted when a party accompanies an application with an attorney's sworn declaration attesting to fault.(Solv-All v. Superior Court(2005)131 Cal.App.4th 1003, 1007-1008.)

“ ‘The standard for appellate review of an order denying a motion to set aside under section 473 is quite limited.A ruling on such a motion rests within the sound discretion of the trial court, and will not be disturbed on appeal in the absence of a clear showing of abuse of discretion, resulting in injury sufficiently grave as to amount to a manifest miscarriage of justice.' ”(McClain v. Kissler(2019)39 Cal.App.5th 399, 414.)“When conducting an abuse of discretion review, appellate courts consider (1) whether the trial court's factual findings are supported by substantial evidence, (2) whether the trial court followed applicable legal principles, and (3) whether the trial court reasonably exercised its discretionary authority-that is, whether any judge reasonably could have made such an order.”(In re Marriage of Hein(2020)52 Cal.App.5th 519, 529.)

B.The Trial Court Did Not Abuse Its Discretion in Denying Mandatory Relief

Here, the trial court denied mandatory relief on two independent grounds: (1) Bobbie failed to submit an attorney affidavit of fault as required by the statute, and (2) the order that Bobbie sought to set aside did not qualify for mandatory relief under the statute.We find no abuse of discretion in the trial court's denial of mandatory relief on these grounds.

1.An Affidavit of Attorney Fault Is Required When Seeking Mandatory Relief

Bobbie admits she did not submit an attorney affidavit attesting to fault when seeking mandatory relief under section 473, subdivision (b).However, Bobbie argues she is still entitled to mandatory relief^[6] under the statute because she submitted a transcript of the April 5, 2019 hearing, which shows that her attorney admitted, in open court, to making a mistake.Bobbie argues this should entitle her to mandatory relief because such evidence is the “equivalent” of, or “in substantial compliance with, ” the requirements of the statute.We disagree.

Bobbie has cited no authority for the proposition that evidence other than an attorney's sworn affidavit attesting to fault may trigger the mandatory relief provisions of section 473, subdivision (b).Instead, it appears well established that “[r]elief under the mandatory provision of section 473, subdivision (b), is available only when the application is accompanied by ‘an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise or neglect.' ”(State Farm Fire & Casualty Co. v. Pietak(2001)90 Cal.App.4th 600, 608-609[attorney affidavit is “indispensable”];seeLas Vegas Land & Development Co., LLC v. Wilkie Way, LLC(2013)219 Cal.App.4th 1086, 1092[concluding there is no exception to attorney affidavit requirement for mandatory relief under § 473].)More importantly, even assuming that some form of evidence other than an attorney affidavit of fault might satisfy the requirements for mandatory relief, we conclude the evidence submitted by Bobbie in this case would not be sufficient.

First, the statement by Bobbie's counsel, while made in open court, was not made under oath.Thus, the statement simply was not the functional “equivalent” of a sworn affidavit.(SeeFuller v. Tucker(2000)84 Cal.App.4th 1163, 1173[“Argument of counsel is not evidence.”].)

Second the statement by Bobbie's counsel was not substantively sufficient to satisfy the requirements of the statute.For purposes of section 473, subdivision (b), an attorney affidavit must do more than generally admit to a mistake in the abstract.Instead, the affidavit must admit that the attorney's mistake or neglect caused the default, dismissal, or adverse judgment the party wishes to set aside.(§ 473, subd. (b)[mandatory relief not warranted where “default or dismissal was not in fact caused by the attorney's mistake”];seeMilton v. Perceptual Dev. Corp.(1997)53 Cal.App.4th 861, 867[The requirement is ...