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McClain v. Kissler

California Court of Appeals, First District, Second Division

August 29, 2019

KATIE MCCLAIN et al., Plaintiffs and Respondents,
KAREN KISSLER et al., Defendants and Appellants.

          Sonoma County Superior Court No. SCV258139 Hon. Peter K. Ottenweller Trial Judge

          Wykowski & Associates, Henry G. Wykowski and Andrew F. Scher for Defendants and Appellants.

          Katie McClain, in pro. per.; Jonothan Harrell, in pro. per.; Ball Law Corporation, Jonathan Ball for Plaintiffs and Respondents.

          STEWART, J.

         Plaintiffs Katie McClain and Jonothan Harrell filed suit against defendants Karen Kissler (both individually and doing business as Karen Kissler, Esquire and a medical marijuana collective called “Alternatives”), alleging defendants failed to pay them for their work growing marijuana as agreed under a contract between them. Although the summons and complaint had been served on defendants, and both before and after being served they actively participated in the case, defendants failed to file an answer or other responsive pleading. And though they claimed they had some basis to challenge the validity of service, they didn't file a motion to quash service of process either. In short, while they appeared in the case in various ways, as to the complaint they did nothing, assuming an ostrich-like posture.

         About six months into the case, a case management conference (CMC) took place. The order entered immediately after the CMC is the focal point of this appeal. At the CMC, the trial court warned defendants their response to the complaint was long overdue and that to challenge the validity of service they had to file a motion to quash. In addition, because the California Rules of Court impose on every plaintiff a 10-day deadline to take a defendant's default on pain of possible sanctions and that deadline, too, had long since passed, the court ordered the plaintiffs to take the defendants' default by a specified date or else be sanctioned. The court memorialized its ruling in a minute order the defendants would later claim they misunderstood. Two weeks after the CMC, defendants still had neither answered nor moved to quash service, and plaintiffs, under threat of sanctions, took their default and sought entry of a default judgment.

         In the meanwhile, Kissler was vigorously and successfully pursuing two cases she had previously filed against plaintiffs, one an unlawful detainer action in which she obtained a writ of execution to remove plaintiffs from her property, and the other a breach of contract action that alleged plaintiffs, rather than Kissler et al., had breached the contract that is the subject of this action. But once the default was entered against Kissler in this case, Kissler obtained a discovery ruling in her separate contract action that, contrary to the allegations in her own complaint, deemed plaintiffs to have admitted Kissler was not a party to the contract at issue here, i.e., the very contract upon which she herself had brought suit and thereafter she obtained summary adjudication in her favor based on that deemed admission.

         Also after the default was entered in this case, Kissler unleashed a torrent of filings in an effort to set the default aside, on a plethora of grounds-she believed defendants had not been properly served, thought they could raise jurisdictional challenges at any time, didn't know their participation in the case was a general appearance, and interpreted the CMC order imposing the deadline for plaintiffs to take defendants' default as an extension of time for defendants to file their already long overdue response to plaintiffs' complaint. Kissler also claimed Alternatives was in any event entitled to mandatory relief because she had eventually filed a declaration of fault. After multiple rounds of briefing and multiple hearings, the trial court issued an order denying relief from the default on every ground defendants had asserted.

         Now, on appeal from the resulting default judgment, defendants raise two issues. They contend the trial court abused its discretion in denying them discretionary relief from default under Code of Civil Procedure section 473, subdivision (b) (section 473(b))[1] on the ground of their excusable mistake, because they misunderstood the court's minute order from the case management conference to mean it had given them until the 37-day deadline to file an answer or a motion challenging service of the summons and complaint. The entity, Alternatives, also contends that the court in any event had a mandatory duty under the same provision to grant it relief from default because its lawyer, Kissler, filed a declaration of fault.

         We affirm. The trial court did not abuse its discretion in denying relief under section 473(b) for excusable mistake, finding defendants were not mistaken about the meaning of the court's minute order. The record here amply supports the trial court's findings that defendants' failure to respond to the complaint in this case was knowing and deliberate. And even if Kissler had been genuinely mistaken, the trial court did not abuse its discretion in finding any mistake was inexcusable. The record reflects that she was fully capable of ascertaining the rules and using them to her advantage when it suited her. Indeed, to interpret the discretionary relief provision of section 473, as defendants urge us, to require relief in circumstances like these would reward parties who ignore or flout the most basic rules governing civil actions, resulting in delay and congestion of the courts, and would undermine trial courts' ability to conduct proceedings in a way that is fair, efficient and orderly, and serves the interest of all litigants. There is, to be sure, a policy in favor of trying cases on their merits. And it is an important one. But there are other policies reflected in the requirement of section 473(b) that relief be granted only where a party has made an honest and reasonable mistake, policies implicating judicial efficiency, a fair legal process and timely access to the courts. If relief from default were required in a case like this, no case would merit denial of relief and the Legislature might as well make such relief mandatory in all circumstances. The Legislature has not chosen that path and for good reason. (See Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258 (Zamora) [“ ‘Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not... excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice”].) Neither will we.

         We also conclude that the trial court did not err in denying mandatory relief to Alternatives under section 473(b), because the court found it was “one and the same” party as Kissler, who is an attorney. The attorney declaration of fault she filed thus was of no legal effect for purposes of granting mandatory relief from default.


         We begin by observing that the record provided by defendants on appeal is deficient and one-sided. It contains no pleadings, briefs or other filings between the date the amended complaint was filed in January 2016 and the date on which plaintiffs sought entry of default in June 2016. Further, it contains many gaps thereafter where pleadings and briefs are omitted. It leaves out, for example, the notice of pending action, or lis pendens, filed by plaintiffs and the defendants' motion to expunge the lis pendens. It also omits the proofs of service of the complaint or amended complaint (one cannot tell which) filed by plaintiffs and declarations plaintiffs filed in opposition to defendants' motions for relief from default. And defendants omitted reporters' transcripts of two of the three hearings on the motions at issue in this appeal.[2] To some extent we are able to assess what occurred in the case because, as required by rules 8.122(b)(1) and 8.124(b)(1)(a) of the California Rules of Court, defendants included the register of actions in the appendix, which lists the many items that have been omitted. The statement of facts here is based on the register of actions where necessary. As we will discuss further, below, however, where omitted items are necessary to our review, our inability to conduct that review redounds to defendants' detriment. (See Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1200-1201 (Hearn) [in connection with review of denial of relief under section 473 “it is the appellant's burden to furnish a record adequate for review” and “[w]e must therefore presume that what occurred at [a hearing for which appellant has not furnished a reporter's transcript] supports the judgment”].)


         Proceedings in This Action

         In December 2015, plaintiffs sued Kissler, individually and doing business as “Karen Kissler, Esq.” and “Alternatives.” We refer to Kissler and her Esq. and Alternatives dbas as “defendants.” Plaintiffs alleged Kissler breached a contract in which she retained them to raise marijuana plants at a property in Geyserville agreeing to pay them for raising and trimming the plants. Instead of paying for the plants as agreed, plaintiffs alleged defendants' agents came to the property without notice, removed all the plants and the equipment used to grow them and paid only $14, 000 of the $158, 500 they had promised to pay. They sought the difference as damages along with interest according to proof. A few weeks later, plaintiffs amended the complaint to add an allegation that Kissler listed some property in Guerneville for sale in violation of the fraudulent conveyance statute, Civil Code section 3439.04.

         In the meanwhile, plaintiffs filed a notice of lis pendens and, on December 28, 2015, defendants moved to expunge the lis pendens. All of them were represented by Kissler, who is a practicing attorney. In connection with that motion, Kissler filed a motion and a reply declaration and presented an ex parte motion to shorten time for hearing. In her motion, although Kissler apparently claimed she was “specially appearing” on her own behalf and behalf of the other defendants, she did not assert that defendants had not been properly served with process or otherwise challenge the exercise of personal jurisdiction against them.

         On January 20, 2016, while the defendants' lis pendens motion was pending, plaintiffs served the summons and complaint by substituted service on both Kissler and Alternatives. Thereafter, in February 2016, the trial court granted the defendants' motion to expunge the lis pendens.

         After that, Kissler and the other defendants did an about-face. In April 2016, Kissler filed a declaration claiming, remarkably, that she had not been aware of the case or that she was a party to it. Her declaration also claimed she had not been served with process in the case. A week later, plaintiffs filed a proof of service showing that, in January 2016, the summons and complaint had been served on Kissler individually and dba Karen Kissler, Esq. and on Alternatives.

         Kissler failed to appear at a CMC on April 7, 2016, and so the court issued an order to show cause as to Kissler and continued the CMC for a hearing on June 16, 2016. Prior to the CMC, Kissler re-surfaced and filed additional papers: a case management statement (on April 25, 2015), and a “Notice of Nonavailability of Counsel” (in May 2016) claiming she would be unavailable during a six-week period beginning in July 2016.

         At the June 16, 2016 CMC before Judge Gary Nadler, Kissler appeared (again, purportedly “specially”) on behalf of herself and her law firm, and it was this hearing that resulted in entry of the minute order that defendants now claim they misunderstood. The following colloquy about the state of the pleadings ensued:

         “THE COURT:... Apparently, Ms. Kissler was arguing she was not properly served. I don't know whether that is true. I'm not going to determine that today, but either we get an answer from Ms. Kissler or you take a default on this case. And if not, I will be considering sanctions on that. Is this case different from what I just called?

         “MS. McCLAIN: Yes, it is.

         “THE COURT: So what I'm going to do is, since I don't have an answer from Ms. Kissler, I'm speaking to you [plaintiff] now. I'm going to order you to file a proof of service. I guess you already have. You may want to find out why Ms. Kissler-why she thinks she's not been properly served. That's up to you. If you don't want to speak to her, that's fine. But I will give you 30 days from today's date to file a default. I will give you an exact date so we're clear on that. [¶] “Make that July 22nd, 2016. Again, that's the last date to which you may get a default entered in this matter.

         “Ms. Kissler, I assume you filed some sort of motion to quash. That's for you folks to figure out. And if it comes before my desk, then I will handle it.

         “I'm going to give this one more date for an order to show cause. And what I mean by that is this: You have an obligation either to get it served, and if you get it served and the default taken-and you're well beyond what is required in the California Rules of Court time-wise to have taken care of this matter.[3] Again, if you feel that service was proper, then you take the default. You have the time limit I've given you as [your] outside time limits. If you fail to comply with that, then unless there is good cause, then I will consider imposing sanctions on this case, failure to comply with California Rules of Court. So one more order to show cause.” (Italics added.)

         The court's minute order from the June 16, 2016 status conference was, as is typical, more abbreviated (omitting any reference to possible sanctions). In relevant part, it stated, “Court notes proof of service was due as to Defendant Alternatives no later than March 9, 2016. As to counsel KISSLER'S statement that she [was] improperly served, the Court notes proof of service was filed. Upon conclusion of discussion, the Court orders as follows: No later than July 22, 2016, a default must be filed for Defendant Karen Kissler ind. & dba Karen Kissler Esq. unless an answer has been filed. As to statements regarding improper service, a motion must be filed.” (Italics added.)

         The court continued the CMC to September 15, 2016. It served a copy of the minute order on the parties the day after the hearing.

         Plaintiffs did not immediately seek defendants' default after the status conference. By June 29, 2016, almost two weeks after the hearing, Kissler still had neither answered the complaint nor filed a motion to quash service of summons. Finally, on that date, plaintiffs filed a request for entry of defendants' default on plaintiffs' damages claim of $144, 500, plus interest and attorney fees to be determined. The court clerk entered the default.

         Over the next eleven months, defendants filed numerous papers (motions, declarations and other filings), many on the eve of or on the date of hearings, which necessitated continuance after continuance to enable plaintiffs to respond meaningfully, that, in substance, asked the court both to set aside the entry of default under section 473(b) and to quash service of the summons and complaint. Many, but by no means all, of the defendants' numerous filings are in the record. Virtually none of the opposition papers that plaintiffs filed are in the record, including none of the plaintiffs' evidence. One of the few filings concerning the entry of default that defendants have included in the appellate record is a document entitled “Notice of Motion and Motion to Vacate Entry of Default and/or Default Judgment, ” filed on November 30, 2016. Another was an “Attorney Affidavit of Fault, ” filed on November 2, 2016, stating defendants had not been served, Kissler “was under the mistaken impression that jurisdiction could be raised at any time during the case, ” she believed that if she appeared “specially” it would not constitute a general appearance, and she interpreted the court's June 16, 2016 order to mean the court was granting her “permission” to file a motion to quash until July 22, 2016.

         The parties' lengthy filings culminated with three hearings, before two different judges.

         On November 30, 2016, Judge Nadler, who had set the earlier deadline for plaintiffs to take the default, denied Kissler's motion to quash service of process. But rather than adopt his tentative ruling fully, which had been to deny all requested relief to defendants, including relief from default, Judge Nadler continued defendants' request for relief from default to another date, apparently because Kissler had filed a new declaration on the day of the hearing to which plaintiffs thus had no opportunity to respond.

         Judge Nadler did, though, enter detailed, adverse findings in his November 30, 2016 order. He observed that Kissler had filed a motion to expunge lis pendens in December 2015 without challenging “the service of summons and complaint or the personal jurisdiction in any way” and that defendants “also took part in this litigation subsequently without challenging service or personal jurisdiction.” (Italics added.) He ruled that the defendants thus had made a general appearance in the case that forfeited any objection to defective service. Judge Nadler also found it was “clear from Defendants own papers that, regardless of any possible defect in service, [Kissler] was entirely aware of the lawsuit and who the Defendants were as far back as December 2015, when they filed the motion to expunge lis pendens.” He also found that despite service having taken place or been attempted in January 2016 “and despite discussing the issue with Plaintiffs and the court at the June 16, 2016 Case Management Conference (at which time this court informed the parties that Plaintiffs had until July 22, 2016 to seek Defendants' default and that Defendants needed either to file an answer or bring a motion to challenge service of the summons and complaint), Defendants did nothing until after Plaintiffs had already entered their default.”

         Defendants' motion to vacate the entry of default was subsequently re-set for hearing before Judge Peter Ottenweller, to whom the case had apparently been reassigned. Judge Ottenweller eventually heard the motion on May 24, 2017, after allowing the parties to file additional papers and to bring in new counsel and took the matter under submission.

         On June 20, 2017, the court denied the defendants relief from default under section 473(b). In his five-page written order, Judge Ottenweller rejected defendants' claim of excusable mistake and neglect based on their having allegedly interpreted Judge Nadler's June 2016 CMC order to mean they had until July 22, 2016, to answer the complaint. Judge Ottenweller found that “[t]he order... could not reasonably be interpreted as allowing Defendants to do nothing and wait for Plaintiffs to file, or not file, a default by the deadline given. At no point did the court indicate that Defendants could bring the motion to quash up through July 22, 2016 without the threat of a default being entered earlier and at no point did the court indicate that a motion to quash would be granted. Plaintiffs entered the default within the deadline given, a deadline of which Defendants were expressly aware.” In addition, like Judge Nadler before him, Judge Ottenweller also found that “the history of Defendants' conduct, which resulted in the default being possible, makes it glaringly clear that for months Defendants knowingly failed to answer or file other appropriate challenge to the pleading or service despite not only knowing of the action, but actually taking part in it.” (Italics added.)

         Judge Ottenweller also rejected defendants' argument that Kissler's “affidavit of fault” entitled Alternatives to mandatory relief under section 473(b). Finding there was “no distinction between Ms. Kissler and Alternatives, ” which, it observed, “[s]he founded, established and is its CEO, Secretary and CFO, ” and further noting “there are no other corporate officers” and “[s]he reports only to herself, ” the court found Kissler's errors and decisions were also attributable to Alternatives. Kissler “was also the owner and CEO of Alternatives, making the decision in both that capacity and as the attorney.” Because “[r]elief is not mandatory based on an attorney affidavit of fault where the fault is also that of the party, ” Alternatives was not entitled to mandatory relief under section 473(b).

         On June 30, 2017, the court entered the default judgment against defendants for $169, 353, consisting of $144, 500 in damages, $24, 743 in prejudgment interest and $110 in costs. This appeal from the judgment followed.


         Parallel and Related Proceedings

         The record includes documents relating to the two other cases between the parties, one of which, at least, was assigned to the same department as the instant case. We briefly summarize the relevant proceedings in those cases. Kissler offered certain evidence about those cases in support of defendants' motion for relief from default.

         On November 30, 2015, twenty days before plaintiffs filed this case, Kissler and another entity, Kissler Management Consulting (KMC) (an “unincorporated agent”), sued McClain[4] and Harrell. Alternatives was not named as a party in the complaint. The complaint, which is signed by Kissler in pro per, asserted two claims, one for breach of contract and the other for breach of implied contract and constructive trust. It alleged that Kissler and KMC entered into a written contract with McClain and Harrell. It further alleged that Kissler owned certain properties in Guerneville and Geyserville, California, that KMC was an “authorized agent for Alternatives, ” that Harrell and McClain agreed to grow organic medicinal plants for KMC, that Harrell and McClain would be allowed to live rent-free in Kissler's Geyserville home, provided an off-road vehicle for their use, and be paid a per pound price to trim the plants, and that McClain and Harrell harvested and seized the plants at this location. Kissler and KMC further alleged that McClain and Harrell by their conduct impliedly agreed and understood that Kissler and KMC would rely on their alleged skills, efforts and labors to grow medicinal quality cannabis, that Kissler and KMC entrusted “their property” to McClain and Harrell to manage, care for and to account for upon request at the termination of the contract, and that when Kissler and KMC requested an accounting of the readiness of the Guerneville plants, McClain and Harrell failed to respond and breached the trust by refusing to turn over the plants. The complaint attaches a document that is alleged to be the written contract, which states it is “between Katie McLain [sic], and Jonathan [sic] Harrell and Alternatives, a Health Collective (by Director, Karen Kissler). It is entitled “Agreement to Grow” and consists of a paragraph purporting to obligate “Katie and Jonathan [sic]” to “grow beautiful medicinal marijuana at the farm (23000 Pocket Ranch Rd. Geyserville) for Alternatives (which owns the plants, ” and to provide security for the plants “by living at the farm as much as possible during the growing and trimming season (except when Karen and family are staying there).” We will refer to this case, which bore the number SCV 258091, for convenience as the “Kissler case.”

         Besides the Kissler complaint, defendants submitted in support of their motion for relief from default in this case two minute orders from that case, the first dated December 14, 2016, from the Law and Motion calendar pertaining to a “Motion for Terminating Sanctions re Katie McClain.” In it, the court denied Kissler's and/or KMC's motion for terminating sanctions against Harrell and McClain, found the motion to be “premature, ” and found there was “insufficient evidence that [McClain and Harrell] acted willfully or intentionally” and that “[t]here ha[d] been an attempt to comply.” The court further stated that although McClain and Harrell's responses to interrogatories were “five days late” and contained objections, they “did not knowingly and intentionally violate a court order.” The court gave them a week to respond without objections to the interrogatories. As to requests for admission, based on an earlier order it held they were “deemed admitted upon the request by counsel Kissler.”

         The second minute order, dated March 8, 2017, granted KMC's motion for summary adjudication, based on the prior order providing that requests for admissions be deemed admitted. Specifically, pursuant to those requests, McClain and Harrell had admitted-an admission Kissler sought despite her complaint's allegation that she and her consulting company (KMC) had entered into a written contract with McClain and Harrell-“that Plaintiff was not an individual party to the contract at issue in this matter” and “[t]herefore, there are no triable issues as to any liability or exposure with respect to Plaintiff Karen Kissler (hereafter ‘Kissler') individually or as an attorney herein.” The court also noted that McClain and Harrell had not provided evidence “to counter Plaintiff[s'] evidence contained in their separate statement.”

         One more document pertaining to the Kissler case is an order from Division Five of this court granting Kissler's unopposed motion to dismiss McClain and Harrell's appeal from the order granting summary adjudication on the ground that such an order is not an appealable order until a final judgment is entered.

         These documents were attached to a declaration of an attorney in support of defendants' motion filed in May 2017.

         In a reply brief Kissler filed in support of the motion to quash and for relief from default in October 2016, she also stated there was a third case “involving the same parties, Kissler v. Mengali, Harrell, Case No. SCV-257938, ” which was an unlawful detainer action Kissler filed “to remove [McClain and Harrell] from her farm.” According to the reply brief, Kissler succeeded in obtaining “a Writ of Execution from Judge Gnoss which the Sheriff served on Defendants who refused to vacate” and damages were “still outstanding and are the same as those damages requested in Kissler, et al. v. Mengali, et al., Case No. SCV 258091.”



         Defendants Have Failed to Show the Trial Court Abused Its Discretion in Denying Relief from Default Under Section 473(b).

         A. Standards Governing Our Review

         As noted, although in the trial court defendants sought to be relieved from their default on numerous grounds, on appeal they challenge the trial court's denial of relief solely on two grounds: they made an excusable mistake in misinterpreting the June 16, 2016 case management order, and Alternatives was entitled as a matter of law to relief because of Kissler's declaration of attorney fault.

         Our review of the trial court's ruling is highly deferential. As this court explained in Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681');">167 Cal.App.4th 681');">167 Cal.App.4th 681');">167 Cal.App.4th 681, 694: “Section 473, subdivision (b) states that a court ‘may, upon any terms as may be just, 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.' This part of section 473 is recognized as invoking the trial court's discretion, and the judgment of the trial court ‘ “shall not be disturbed on appeal absent a clear showing of abuse.”' (Zamora[, supra, ] 28 Cal.4th [at pp.] 254, 257.)”

         Defendants “correctly observe[] that a trial court order denying relief under section 473, subdivision (b) is ‘ “scrutinized more carefully than an order permitting trial on the merits.”' [Citation.] ‘Because the law favors disposing of cases on their merits, “any doubts in applying section 473” must be resolved in favor of the party seeking relief from default [citations].' (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [Rappleyea].) But that said, ‘[a] motion to vacate a default and set aside judgment (§ 473) “is addressed to the sound discretion of the trial court, and in the absence of a clear showing of abuse... the exercise of that discretion will not be disturbed on appeal.” [Citations.] Moreover, all presumptions will be made in favor of the correctness of the order, and the burden of showing abuse is on the appellant.' ” (Hearn, supra, 177 Cal.App.4th at p. 1200.)

         As Division Three of this court stated in In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, “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. Where a trial court has discretionary power to decide an issue, an appellate court is not authorized to substitute its judgment of the correct result for the decision of the trial court. [Citations.] ‘ “ ‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.' ” [Citations.]' [Citation.] The burden is on the complaining party to establish abuse of discretion, and the showing on appeal is insufficient if it presents a state of facts which simply affords an opportunity for a difference of opinion.” (Id. at p. 118, fn. omitted.) To obtain discretionary relief under section 473, the moving party must show the requisite mistake, inadvertence, or excusable neglect. (Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1478, quoting Iott v. Franklin (1988) 206 Cal.App.3d 521, 526-528 (Iott).)

         In Zamora, our high court reiterated the limited nature of our review. It explained that “ ‘A party who seeks relief under section 473 on the basis of mistake or inadvertence of counsel must demonstrate that such mistake, inadvertence, or general neglect was excusable because the negligence of the attorney is imputed to his client and may not be offered by the latter as a basis for relief.' [Citation.] In determining whether the attorney's mistake or inadvertence was excusable, ‘the court inquires whether “a reasonably prudent person under the same or similar circumstances” might have made the same error.”' [Citation.] In other words, the discretionary relief provision of section 473 only permits relief from attorney error ‘fairly imputable to the client, i.e., mistakes anyone could have made.' [Citation.] ‘Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable.' ” (Zamora, supra, 28 Cal.4th at p. 258.)

         The concept of “excusable, ” furthermore, is not synonymous with a get-out-of-jail-free card for parties who later come to regret past inaction or sitting on their rights. “ ‘The inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief. [Citations.] It is the duty of every party desiring to resist an action or to participate in a judicial proceeding to take timely and adequate steps to retain counsel or to act in his own person to avoid an undesirable judgment. Unless in arranging for his defense he shows that he has exercised such reasonable diligence as a man of ordinary prudence usually bestows upon important business his motion for relief under section 473 will be denied. [Citation.] Courts neither act as guardians for incompetent parties nor for those who are grossly careless of their own affairs.... The only occasion for the application of section 473 is where a party is unexpectedly placed in a situation to his injury without fault or negligence of his own and against which ordinary prudence could not have guarded.' ” (Hearn, supra, 177 Cal.App.4th at p. 1206.

         Most of these questions are factual ones to be resolved by the trial court, not this court. “ ‘The issue of which mistakes of law constitute excusable neglect presents a fact question; the determining factors are the reasonableness of the misconception and the justifiability of lack of determination of the correct law.' ” (Coordinated Const., Inc. v. J.M. Arnoff Co. (1965) 238 Cal.App.2d 313, 319; accord, City of Ontario v. Superior Court (1970) 2 Cal.3d 335, 346; Toho-Towa, Ltd. v. Morgan Creek Productions, Inc. (2013) 217 Cal.App.4th 1096, 1111.) In reviewing the trial court's factual findings regarding excuse and diligence, we defer to the trial court's assessments of credibility and the weight of the evidence and do not interfere with its determinations of these matters. (Coordinated Const., Inc., at p. 319; accord, Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622-623; Warren v. Warren (2015) 240 Cal.App.4th 373, 377 [“On appeal from an order denying relief from default or a default judgment, we will not disturb the trial court's factual findings where they are based on substantial evidence”].)

         In dissent, our colleague emphasizes the Supreme Court's observation in Rappleyea v. Campbell, supra, 8 Cal.4th 975');">8 Cal.4th 975 that appellate courts give greater scrutiny to denials, than to grants, of discretionary relief. (Dis. opn. at p. 21.) The court made that observation in Rappleyea, and we have no quarrel with it. But we do not understand it to mean that appellate courts are to abandon the abuse of discretion standard of review when a trial court denies relief from default. Rappleyea itself clearly states otherwise, observing that “a challenge to a trial court's order denying a motion to vacate a default, ” whether on equitable grounds or under section 473, is still the “abuse of discretion” standard. (Rappleyea, at p. 981.)[5] Moreover, as our colleague points out, Rappleyea referred to the policy in favor of deciding cases on their merits that must inform decisions whether to grant relief from default and observed that where there are doubts they should be resolved in favor of granting relief. (Id. at p. 980.) But Rappleyea did not indicate courts should myopically focus on that policy alone and grant relief in every case or that courts should be unceasingly lenient with careless litigants. On the contrary, our high court warned that it was not suggesting litigants, even self-represented litigants, could ignore the rules and then ask for leniency. “[W]e make clear that mere self-representation is not a ground for exceptionally lenient treatment. Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation.” (Id. at pp. 984-985.) The court recognized countervailing considerations counseling against such “exceptionally lenient treatment.” “A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation.” (Id. at p. 985.)

         We now proceed to apply the abuse of discretion standard as it applies in the circumstances of this case.

         B. Excusable Mistake

         Turning first to the question of defendants' claimed misinterpretation of the CMC order, defendants have not shown the trial court abused its discretion, much less clearly so, in rejecting that proffered excuse for their having failed to respond timely to the complaint.

         To start with, defendants have not provided an adequate appellate record for us to consider this issue. As already indicated, defendants included in their appendix some, but not all, of their own filings relating to the motions for relief from default and omitted all the declarations and memoranda submitted by plaintiffs in opposition, which the register of actions indicates plaintiffs filed. Thus, the record contains none of the evidence plaintiffs introduced. That alone is grounds to deem this issue forfeited, because without a record of all of the evidence introduced on the contested motion the presumption of correctness compels us to affirm the judgment. (See, e.g., Hearn, supra, 177 Cal.App.4th at pp. 1200-1201 Godfrey v. Oakland Port Services Corp. (2014) 230 Cal.App.4th 1267, 1283-1284 [Brick, J., with Kline, P.J. and Richman, J. concurring].) And making matters worse, defendants also failed to provide the reporter's transcripts for two of the three hearings at which Judges Nadler and Ottenweller heard their motions for relief from default and for the hearing at which Judge Nadler made the order Kissler claims to have misunderstood (although we granted plaintiffs' request to augment the record to add the last). These omissions violate rule 8.124(b)(1)(B) of the Rules of Court and leave us with a one-sided and incomplete record in regard to the evidence offered and arguments made by the plaintiffs and the judge's exercise of discretion. “As the party challenging a discretionary ruling, [defendants] had an affirmative obligation to provide an adequate record so that we could assess whether the court abused its discretion.” (Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259 [challenge to court's denial of discretionary relief from default held forfeited by failing to provide hearing transcript or copy of ruling].) Although plaintiffs have not raised any concern about the one-sided and woefully incomplete record, we ourselves are in no position to speculate or second-guess the trial court on discretionary matters as to which defendants have impeded our review.[6]

         Even considering the issue on the merits on the basis of this limited record, however, there was no abuse of discretion, much less clear abuse. The issue is not even close.

         First, the trial court was entitled to find-and did find-that Kissler was not credible and that she did not make the factual mistake she claimed to have made. Judge Ottenweller expressly found that “Plaintiffs entered the default within the deadline given, a deadline of which Defendants were expressly aware.” (Italics added.) Implicit in this finding is that the defendants knew the deadline applied to the plaintiffs and was simply a deadline for the plaintiffs to take a default. Judge Ottenweller thus found that Kissler understood Judge Nadler was not granting defendants some kind of retroactive (and unsought) extension of time to respond to the complaint, but rather was holding plaintiffs' feet to the fire to take the defendants' default by a date certain. Judge Ottenweller further found that “the history of Defendants' conduct, which resulted in the default being possible, makes it glaringly clear that for months Defendants knowingly failed to answer or file other appropriate challenge to the pleading or service despite not only knowing of the action, but actually taking part in it.” (Italics added.)[7] Again, Judge Ottenweller did not believe Kissler's claim that she thought she had no obligation to respond to the complaint and could instead wait and challenge jurisdiction at some future date whenever she chose. We are required to defer to the trial court's factual finding that there was no mistake unless there is no substantial evidence to support it. On this record, even without a complete record, there is ample evidence to support the court's finding.

         Moreover, we must defer to the trial judge's assessment of Kissler's credibility. (Falahati v. Kondo (2005) 127 Cal.App.4th 823, 828 [“It is the province of the trial court to determine the credibility of the declarants and to weigh the evidence”].) Only honest mistakes are grounds for relief under section 473. (See Solv-All v. Superior Court (2005) 131 Cal.App.4th 1003, 1008 [affirming denial of discretionary relief where there was reason to question credibility of defendant's attorney regarding his awareness of potential for default].) The question whether Kissler was genuinely mistaken about such basic rules governing litigation practice she claimed not to have understood[8] and truly “misinterpreted” Judge Nadler's CMC order turned turn on her credibility, which the trial court had strong reasons to question. To start with, Kissler had lied under penalty of perjury at least once before, claiming to know nothing about the case long after she had begun to participate in it.[9] In addition, the background of what had already transpired was so unreasonable that it strained credulity to believe a practicing lawyer was so ignorant of basic rules that she would think that at the June 16 hearing Judge Nadler was indulging her in yet additional delay, rewarding by giving her even more time to respond. And there was evidence of Kissler's successful litigation activity in this and the two cases she had filed, [10] which undermined her claim of legal naivety and misunderstanding of Judge Nadler's order. And there were additional bases, besides Kissler's notices of unavailability, to infer she was engaged in an effort to delay rather than having truly been mistaken. It is difficult to conceive of any purpose other than delay for these California defendants to have claimed technical defects in service when they had actual knowledge of the case and were already participating in it. And delay in plaintiffs' case potentially advantaged defendants, allowing the cases Kissler had filed against plaintiffs to proceed while the case plaintiffs had filed against defendants languished. All of this buttresses the trial court's finding that Kissler was not credible in claiming to have been mistaken about the meaning of Judge Nadler's June 16, 2016 order.

         Second, even if Kissler had been subjectively mistaken about Judge Nadler's order, the record supports the trial courts' finding that her interpretation was not reasonable under the circumstances. Judge Ottenweller found that the order “could not reasonably be interpreted as allowing Defendants to do nothing and wait for Plaintiffs to file, or not file, a default by the deadline given. At no point did the court indicate that Defendants could bring the motion to quash up through July 22, 2016 without the threat of a default being entered earlier and at no point did the court indicate that a motion to quash would be granted.” The record certainly does not compel the opposite conclusion.

         By its plain terms, Judge Nadler's CMC order imposed a deadline on plaintiffs to take defendants' default; it did not grant permission or provide a safe harbor for defendants to further delay filing an answer or motion to quash. Given that defendants were well aware of the complaint and had failed to respond to it, and that at the time of the CMC their response was long overdue, the order could not reasonably be interpreted to grant defendants more time to settle the pleadings. Defendants' new counsel, who appeared and argued at the final hearing, admitted the order did not “preclude Plaintiffs herein from seeking to enter Defendants' defaults prior to [the] July 22 [deadline], which in fact they did.” In fact, McClain and Harrell could have and should have taken defendants' default at any time after February 20, 2016, the thirty-first day after they served the complaint on defendants. Judge Nadler chastised plaintiffs at the June 16, 2016 CMC for not having taken defendants' default much earlier, which violated the Rules of Court. Rule 3.110(g) required them to request entry of default within 10 days after the time for service had elapsed. Since, as defendants' counsel admitted, plaintiffs were free to take the defendants' default at any time, it necessarily follows that defendants were not free to wait until July 22, 2016, to answer.

         Further, Kissler's claimed “misunder[standing], ” even if it had been genuine, rested on the same ignorance of the basic rules we have already discussed-including that defendants were required to respond to the complaint within 30 days of service; if they did not do so plaintiffs could take their default; and defendants had waived jurisdictional defects by participating in the case without having first moved to quash service. No litigant who had bothered to apprise him or herself of these very basic litigation rules would have believed defendants' prior, ongoing and continued failure to respond to the complaint five or six months into the case did not expose them to the risk of a default or interpreted Judge Nadler's order as conferring permission on defendants to continue to sit on their hands for another 37 days.[11]

         The actual transcript of the CMC hearing, which we have already quoted at some length, underscores that defendants' claimed interpretation was not only unreasonable but also totally implausible. It is not clear whether the parties provided Judge Ottenweller with a transcript of that hearing before he ruled on the motion for relief from default. Even if they did not, Judge Nadler-on whose findings and tentative rejection of defendants' motion for relief from judgment Judge Ottenweller may well have relied-personally knew what had transpired at that CMC and rejected defendants' claim of mistake.[12] Defendants have not shown Judge Ottenweller acted arbitrarily in reaching the same conclusion.

         In coming to a different view of this record, our dissenting colleague improperly substitutes his findings and credibility assessments for those of the trial court and reaches issues neither party has raised on appeal. He characterizes Judge Nadler's June 2016 CMC order as “confusing” and points out that Judge Ottenweller was new to (implying he was unfamiliar with) the case.[13] (Dis. opn. at pp. 11, 13 [“apparently his first entry into the matter”].) In substituting his own finding that the order was “[c]ertainly... unclear, ” “confusing, ” “ambiguous” or “vague” and “obviously... subject to interpretation” (id. at p. 25), Justice Richman oversteps an appellate court's role. (See Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479 [When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court”]; Iott, supra, 206 Cal.App.3d at p. 527 [“ ‘The question to be determined by the appellate court is not what it would have done had it been sitting in the place of the trial judge, but whether from the record it can be said that the trial judge failed to act wisely, reasonably and fairly in view of what was presented to him in support of the application. If such failure does not clearly and unmistakably appear, it cannot be said that the trial judge abused his discretion, and his decision should be affirmed' ”].) “In considering whether a mistake of law furnishes grounds for relief, ‘ “the determining factors are the reasonableness of the misconception and the justifiability of lack of determination of the correct law.”' ” (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1413.) Whether a mistake is excusable is a fact question as are the determining factors of “the reasonableness of the misconception and the justifiability of lack of determination of the correct law.” (City of Ontario v. Superior Court, supra, 2 Cal.3d at p. 346.) Even if “contrary findings could have been made, an appellate court should defer to the factual determinations made by the trial court when the evidence is in conflict.” (Shamblin, at p. 479.)[14]

         The dissent then poses a rhetorical “challenge” to “set forth precisely when it was that Kissler had to act prior to the July 22 default date.” (Dis. opn. at p. 25.) The answer is not difficult: immediately. At minimum, very, very promptly. Judge Nadler had pointed out that plaintiffs could and should have taken defendants' default already because defendants' response to the complaint was long overdue. Any minimally competent lawyer would have filed an answer within a day or two, at most. Indeed, plaintiffs could have filed their request for default immediately after the case management conference but instead gave defendants another 13 days.[15] Certainly competent counsel would have responded to the complaint well before then. Both trial judges found defendants' conduct, far from excusable, was knowing and deliberate, that is, not a mistake at all.

         Our dissenting colleague also zeroes in on defendants' contention that the default judgment against Kissler was unjust, because in her parallel suit against plaintiffs the court granted her summary adjudication holding she was not a party to the contract. (See Dis. opn. at pp. 5-6, 16-17.) However, the issue of Kissler's status as a party, while the subject of deemed admissions she succeeded in obtaining in her suit against McClain and Harrell, is murky, at best, because even in her own lawsuit Kissler engaged in a complete about-face on that issue. In her complaint against McClain and Harrell, she personally sued them for breach of the very same contract to which she subsequently claimed she was not a party, and in that case she denied she was a party only after they took her default in this case. The dissent fails to explain why the post hoc deemed admission and resulting summary adjudication that Kissler was not a party to the very contract on which she had sued plaintiffs for breach should trump the earlier filed default against her in this case. Further, if there is any risk of inconsistent judgments here, that is not reason to jettison the law governing section 473(b) and force plaintiffs and the court to countenance the defendants' persistent disregard of applicable rules, deadlines and procedure. That would ensure they can benefit from what was in effect a default on plaintiffs' part (in failing to respond timely to requests for admission) while avoiding the consequences of their own default in this case. If the defendants' tactics in this case result in adverse, conflicting results between multiple cases it is a fate defendants have inflicted on themselves. Our job is not to square circles but to correct legal error where error is demonstrated and to faithfully apply the law.

         Finally, our dissenting colleague faults Judge Ottenweller for failing to act as a “gatekeeper” in entering the default judgment against Alternatives because, the dissent claims, “Alternatives is nowhere mentioned in [plaintiffs'] breach of contract claim.” (Dis. opn. at pp. 30-32.) Again, no party has raised this issue as a basis for reversing the judgment, and we would not reach out to decide it. Were we to do so, however, we would not agree with our colleague's reading of the record. The details are tangential and we set them out in a footnote.[16]

         In short, our dissenting colleague disregards the limited nature of our review under an abuse of discretion standard. Although he acknowledges that standard, he fails to apply it properly. His analysis second-guesses the trial court's determinations about credibility and the weight of the evidence and substitutes his own judgment for that of the trial judges as to whether defendants' continued failure to respond to the complaint, despite the trial court's warning, was reasonable. Nothing in any authority cited by the dissent, including the Supreme Court's opinion in Rappleyea, supports that approach.

         In engaging in what is effectively de novo review of the trial court's ruling, our colleague's analysis renders relief from default mandatory in virtually every case, for we can see no limits to the dissent's reasoning or envision any realistic scenario in which relief would not be available to litigants such as these who sat on their rights-knowingly-so persistently, and for so long. Our colleague justifies doing so by focusing solely on one of the purposes of the statute-that of affording parties their day in court to try cases on their merits. But he ignores other important policies underlying the statute. These include the trial courts' ability to enforce the Code of Civil Procedure and the Rules of Court, which are designed to ensure a fair, orderly and efficient process. As one appellate court put it thirty years ago, “Certainly it is true that a policy of the law favors deciding cases on their merits, but other policies favor getting cases to trial on time, avoiding unnecessary and prejudicial delay, and preventing litigants from playing fast and loose with the pertinent legal rules and procedures.” (Gardner v. Superior Court (1986) 182 Cal.App.3d 335, 339, italics added.)

         When a default is the result of one party flouting these rules or failing to exercise diligence to ascertain what the law requires of them, trial courts are not required to, and indeed should not, grant that party relief from default. As the California benchbook states, “[w]hen the court finds the alleged mistake of law is the result of professional incompetence based upon erroneous advice, general ignorance of the law, lack of knowledge of the rules, unjustifiable negligence in the discovery or research of the law, laxness or indifference, relief will normally be denied.” (Cal. Civ. Ctrm. Hbook. & Desktop Ref. § 19:40 (2019 ed.).)

         Countenancing a litigant's blatant disregard of the judicial process and rules has serious downsides. It invites other litigants to ignore the laws and rules and renders the process unfair to most other litigants and counsel who endeavor to comply with them. It also undermines trial courts' ability to manage their caseloads and, in turn, to serve other litigants in a timely way. To grant relief to litigants, like defendants here, who flout the relevant statutes and rules and delay cases in getting to trial, as our sister court explained, would “ ‘permit the courts to become a sanctuary for chronic procrastination and irresponsibility on the part of either litigants or their attorneys.' [Citation.] It would also thwart vital ‘policies [which] favor getting cases to trial on time, avoiding unnecessary and prejudicial delay, and preventing litigants from playing fast and loose with the pertinent legal rules and procedures.' [Citation.] ‘When inexcusable neglect is condoned even tacitly by the courts, they themselves unwittingly become instruments undermining the orderly process of the law.' ” (Iott, supra, 206 Cal.App.3d at p. 531.)

         The trial court in this case properly declined to go down that path. Its ruling was well within the bounds of discretion the law affords it, and we unhesitatingly affirm.


         The Trial Court Did Not Err in Denying Mandatory Relief from Default to One of the Defendants Under Section 473(b).

         The health collective, Alternatives, also contends the trial court erred in denying its request for mandatory relief under section 473(b) on the ground that its attorney, Kissler, filed an affidavit of fault. The mandatory part of that section states, 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.” This provision, which applies only to default judgments and dismissals, was intended “ ‘to alleviate the hardship on parties who lose their day in court due solely to an inexcusable failure to act on the part of their attorneys.' ” (Zamora, supra, 28 Cal.4th at p. 257.)

         In the trial court and on appeal, defendants relied on Gutierrez v. G&M Oil Co., Inc. (2010) 184 Cal.App.4th 551 (Gutierrez), in which our colleagues in the Fourth District held section 473, subdivision (a) applied to a mistake made by the corporate defendant's in-house attorney. The trial court found Gutierrez inapposite, noting “Gutierrez was employed as house counsel and vice president of a corporation which included a board of directors and other officers who ran a gas station chain. It was clear he was acting as a lawyer for the corporation. Here, there is no distinction between Ms. Kissler and Alternatives. She founded, established and is its CEO, Secretary and CFO. There are no other corporate officers. She reports only to herself. [¶] In this action, the decisions and errors of the attorney, Kissler, are also clearly one and the same as those of the client because Kissler was also the owner and CEO of Alternatives, making the decision in both that capacity and as the attorney. Relief is not mandatory based on an attorney affidavit of fault where the fault is also that of the party. See Todd v. Thrifty Corp. (1995) 34 Cal.App.4th 986, 991; Lang v. Hochman (2000) 77 Cal.App.4th 1225');">77 Cal.App.4th 1225, 1248.”

         The issue defendants raise is partly one of fact, to which the substantial evidence standard of review applies, and partly one of law to which we apply de novo review. (See Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 399 [to extent application of mandatory relief provision does not turn on disputed facts, it is subject to de novo review; where facts are in dispute, substantial evidence rule applies to trial court findings].) As to the factual issue, defendants challenge the trial court's finding that “there is no distinction between Ms. Kissler and Alternatives.” Defendants do not dispute, and Kissler admitted in her declaration, that she incorporated Alternatives, serves at its CEO, Secretary and CFO and “sit[s] on [its] board of directors as its sole officer and director.” However, they point to other facts set forth in Kissler's declaration, including that Alternatives was incorporated as a Nonprofit Mutual Benefit Corporation under the Corporations Code and, she claims, has “over 21, 000 members” who she describes as “akin to shareholders” and that “although, like any nonprofit, it pays salaries, overhead expenses, etc.” it “turns any net profits back into the corporation for the benefit of its members.” And we note that her declaration attached Alternative's articles of incorporation and bylaws that provide further support for some of these assertions.

         Plaintiffs, on the other hand, assert that “Alternatives is a ‘dba' of appellant [defendant] Kissler, not a separate legal entity” but cite nothing in the record supporting that assertion. They contend the court's determination that there is no distinction between Kissler and Alternatives is a “factual issue which was resolved by the trial court judge based on the evidence submitted to him by appellants.” The register of actions reflects that plaintiffs submitted declarations in opposition to defendants' motions for relief from default. However, defendants failed to include those declarations in the record. That failure precludes us from determining whether substantial evidence supports the trial court's findings. On review for sufficiency of evidence, we must consider all the evidence and view it in the light most favorable to the prevailing party. (Estate of Young (2008) 160 Cal.App.4th 62, 76.) Our authority “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.” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.) Without a complete record that includes the evidence submitted by both parties, we could not say the evidence is insufficient to support the trial court's finding that Alternatives and Kissler were one and the same. (In re Silva (1931) 213 Cal. 446, 448.)

         Even if we considered the issue despite defendants' omission of plaintiffs' evidence from the record, much of the evidence submitted by defendants themselves supports the trial court's finding. As we have said, Kissler admitted that she incorporated Alternatives, serves as its CEO, Secretary and CFO and “sit[s] on [its] board of directors as its sole officer and director.” Moreover, in her disputes with plaintiffs, Kissler treated the entity as separate or the same, depending on what suited her. Thus, the contract she drafted and sent to plaintiffs listed Alternatives as the party and referred to herself as its “Director, ” but when she sued plaintiffs for breach of that very same contract, she sued in her own name and in the name of her consulting firm dba, but not in the name of Alternatives. When her default had been taken in the case plaintiffs filed against her, she pivoted and took the position that it was Alternatives who made the contract with plaintiffs, not her individually. Finally, when she was sued along with Alternatives in this action, she chose to represent herself and Alternatives both, rather than obtaining separate counsel for the entity. All of these facts indicate Kissler controlled Alternatives, using the entity as she pleased, as either indistinguishable from herself or as distinct, depending on what suited her. This is substantial evidence supporting the trial court's finding that there was no attorney-client relationship between her and Alternatives because they were one and the same.

         We next turn to defendants' legal challenge to the trial court's ruling. Defendants contend the trial court's determination that they were not entitled to the mandatory relief provision of section 473(b) rested in part on the court's conclusion that “[r]elief is not mandatory based on an attorney affidavit of fault where the fault is also that of the party.” Defendants point out that the cases the trial court cited-Lang v. Hochman and Todd v. Thrifty Corp.-are not controlling and urge us to apply our prior decision in Benedict v. Danner Press (2001) 87 Cal.App.4th 923');">87 Cal.App.4th 923.

         We need not address these cases or the issue on which they differ, which concerns the relevance, in applying the mandatory relief prong of section 473(b), of clients' mistakes that contributed to causing the default. (See Gutierrez, supra, 184 Cal.App.4th at pp. 557-558 [discussing split of authority].) In each of these cases, the attorney was distinct from the client, whereas here the trial court found the two were “one and the same.”[17]

         To decide whether the mandatory relief provision in the statute applies in this situation, when an attorney is in essence representing herself, we begin with the statutory language. The mandatory relief prong of section 473(b) refers to “an attorney's sworn affidavit attesting to his or her mistake, [etc.]” and a “resulting default” or “default judgment” entered “against his or her client.” (Italics added.) By its terms, the statute distinguishes between the attorney and the client and presupposes they are not “one and the same.” The statutory language thus fails to support defendants' position.

         The statutory purposes also suggest no reason for its application here. “The purpose [of the 1988 amendment adding the mandatory relief provision] was threefold: to relieve the innocent client of the consequences of the attorney's fault; to place the burden on counsel; and to discourage additional litigation in the form of malpractice actions by the defaulted client against the errant attorney.” (Solv-All v. Superior Court, supra, 131 Cal.App.4th at p. 1009, fn. omitted.) If the attorney and client had no separate existence, there is no “innocent client” to protect; rather, the error that caused the default is that of both the attorney and the client, acting inextricably together. Placing the burden on counsel protects counsel and the client both, since they are indistinguishable. Granting relief to an attorney who represents an entity she completely controls would undermine the rule affording discretionary relief only from excusable mistakes and allow attorneys who represent themselves a benefit other self-represented clients do not receive.[18] It would be particularly inappropriate here, where the trial court found that “the history of Defendants' conduct, which resulted in the default being possible, makes it glaringly clear that for months Defendants knowingly failed to answer or file other appropriate challenge to the pleading or service despite not only knowing of the action, but actually taking part in it.” Nor is the malpractice prevention purpose served by application of the mandatory relief provision in this circumstance. There is no risk of an attorney suing herself for malpractice.

         Notably, defendants cite a case that is on point. In Esther B. v. City of Los Angeles (2008) 158 Cal.App.4th 1093, the court rejected a request for relief from dismissal of a motion made by a self-represented attorney. (Id. at p. 1099.) The court found the plain language of the statute did not support such relief, observing, “Under the plain language of the statute, the mandatory relief provision only applies in the case of an ‘attorney' representing a ‘client.' Our interpretation is further supported by comparing the mandatory relief provision with the discretionary relief provision of the same subdivision. The latter provides that the court may set aside a default or dismissal on the motion of ‘a party or his or her legal representative.' Thus the discretionary provision applies to a party, including a party appearing in propria persona, and an attorney representing a party, whereas the mandatory provision only applies to an attorney representing a party.” (Id. at pp. 1099-1100.) Esther B. also recognized that “[g]ranting mandatory relief to parties appearing in pro per, even if they are attorneys, would not serve any of the purposes of the legislation. In these situations the ‘client' is not innocent, there is no one to whom the blame can be shifted and there is no risk of a malpractice action because the client would have to sue herself.” (Id. at p. 1100.)

         The trial court's determination in this case that Kissler and Alternatives were “one and the same” in effect means Alternatives was self-represented. Esther B. is thus on all fours and supports the trial court's decision here.

         For all of the foregoing reasons, defendants have failed to meet their burden to show the trial court erred in denying relief to defendant Alternatives under the mandatory relief provision of section 473(b).


         The judgment is affirmed. Respondents are awarded ...

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