(Super. Ct. No. CV035179)
The opinion of the court was delivered by: Robie ,j.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In this assault and battery case, plaintiff Joseph Reyes appeals from orders granting motions by defendants Daniel Johnson and Ghassan Sharmoug to set aside their defaults and the resulting default judgment against them.
With respect to Sharmoug, Reyes contends the attorney's affidavit of fault offered in support of Sharmoug's set-aside motion did not justify relief under the mandatory relief provision in subdivision (b) of Code of Civil Procedure section 473 (section 473(b)) because the affidavit did not support a finding that the attorney caused Sharmoug's default. Reyes also contends that if the trial court properly granted Sharmoug's set-aside motion, the court nonetheless erred in failing to order Sharmoug's attorney to pay Reyes's reasonable compensatory fees and costs.
With respect to Johnson, Reyes contends Johnson's set-aside motion was untimely under the discretionary relief provision in section 473(b) and, in any event, Johnson failed to demonstrate any valid ground for relief under that provision.
We conclude the affidavit of fault offered in support of Sharmoug's motion was sufficient to require the trial court to set aside the default and default judgment as to Sharmoug under the mandatory relief provision in section 473(b). We also conclude that while Johnson's set-aside motion was untimely under the discretionary relief provision in that statute, the trial court did not abuse its discretion in granting Johnson relief from his default under the court's equitable powers based on extrinsic mistake. Accordingly, we will affirm both set-aside orders.
FACTUAL AND PROCEDURAL BACKGROUND
A The Complaint And The Default Judgment
On April 4, 2008, Reyes filed a complaint for damages against Johnson and Sharmoug, alleging they had attacked him at a party in August 2007.
On October 2, 2008, Reyes took the defaults of both defendants. On June 24, 2009, he obtained a default judgment against them for nearly $500,000 in damages, most of which consisted of punitive damages.*fn1
B Sharmoug's Set-Aside Motion
On December 17, 2009, Sharmoug moved to set aside the default and the default judgment, asserting that his attorney, Brennan Newsom, had failed to timely file a responsive pleading because Newsom believed Reyes's attorney, Vladimir Kozina, "had given him an open extension of time to respond."
In support of the motion, Newsom submitted a declaration stating that before December 2008 he had represented Sharmoug in the criminal prosecution arising out of the same incident as this civil action and had also "agreed to provide legal representation in connection with the Civil Case by way of tendering the matter to [Sharmoug]'s insurance carrier." Around the beginning of July 2008, he obtained an extension of time from Kozina to answer the complaint, confirming that extension in a letter to Kozina dated July 1, 2008. In that letter, Newsom stated that he would have a responsive pleading on file no later than July 11.
Later in July 2008, Newsom told Kozina he had tendered the defense of the action to the insurer. In a letter to Kozina dated July 22, Newsom confirmed the tender with Kozina and told Kozina he had been advised that the insurer would "be getting back to [him] shortly to tell [him] whether or not [the insurer would] pick up the defense." Newsom continued as follows: "Of course, if they do, I will be dropping out of this case. However, in the mean time, I will assume that I have your continued indulgence in not filing a responsive pleading pending a determination of [the insurer] to pick up the defense."
Shortly after this, Newsom was diagnosed with skin cancer, and through the end of 2008 he underwent treatment for cancer and also for a heart condition. These medical issues prevented Newsom from tending to his law practice, and by December 2008 he filed a motion to be relieved as Sharmoug's attorney in the criminal case based on his medical condition. He did not make a similar motion in this action because he had not made an appearance in the case.
Newsom stated that Kozina never asked him to file a responsive pleading on behalf of Sharmoug, never denied that Newsom had an open extension of time to file such a pleading, and never advised Newsom that he intended to take Sharmoug's default. Newsom also said that he never received a copy of the request for entry of default or any notice of the default prove-up hearing. Newsom asserted if Kozina had asked him to file a responsive pleading or advised him Reyes was going to take Sharmoug's default, Newsom would have "made arrangements to ...