Case Number: VC063499    Hearing Date: August 12, 2014    Dept: SEC

SANTANA v. HALTOM
CASE NO.: VC063499
HEARING: 08/12/14

#5
TENTATIVE ORDER

Defendant MELISSA HALTOM’s motion to set aside this Court’s May 13, 2014 Order is DENIED. C.C.P. §§ 473(b).

As noted by plaintiff in his opposition, the subject motion is not accompanied by a proper proof of service. The motion was initially set for hearing on July 1, 2014 and continued by stipulation. See Order, 06/30/14. Such stipulation also serves as a waiver for any notice defect.

Prior order
On May 13, 2014, this Court heard and denied defendant Haltom’s motion to set aside the default entered against her in January 2014. In the motion, she argued that the default was void and/or obtained through fraud. The Court issued a detailed order as to why defendant did not meet her burden of establishing that she was entitled to relief. Specifically, the Court found that defendant’s declaration regarding (1) when she learned of the default, and (2) the lack of service of summons did not satisfy the statutory requirements. C.C.P. §§ 473(a), (d); 473.5.

Request for relief
Defendant seeks relief from the order denying her relief on the ground that her attorney mistakenly failed to attend the May 13 hearing. She contends the motion was given to her attorney service to file, at which time a hearing date was assigned and that it was never calendared. Counsel submitted a declaration to that effect.

Although generally, an attorney affidavit of fault triggers the mandatory relief provision of section 473(b), it does not warrant relief from judgments or orders made on a determination of the merits. See e.g. Vandermoon v. Sanwong (2006) 142 Cal.App.4th 315. While there is a split of authority as to the construction of section 473 in this regard, the purpose of the mandatory provision is to protect the client from harm caused by an attorney’s error. Here, the motion to set aside the default was denied because defendant did not establish that she was entitled to that relief.

The subject motion is unaccompanied by any indication that defendant possesses additional information or evidence which would bear on that issue. Accordingly, the motion for relief is denied.

As noted in opposition, the subject motion is essentially one for reconsideration. Defendant did not file the motion within 10 days of the order sought to be reconsidered and did not submit any new or different facts regarding the merits of the underlying order. See C.C.P. § 1008. The motion is denied, as is plaintiff’s request for sanctions.