Daily Blast January 28, 2016

The Court of Appeal, Second Appellate District, Division Two (Los Angeles), issued an opinion in Martin Pott & Associates, Inc. v. Corsair, LLC (Jan. 28, 2016, B263198) __ Cal.App.4th __, analyzing whether an attorney’s affidavit of fault pursuant to Code of Civil Procedure section 473, subdivision (b), must disclose the reasons for the attorney’s mistake, inadvertence, surprise, or neglect. The court concluded that “[a]lthough such a statement of reasons will be helpful, and may sometimes be relevant to prove the causal link between the attorney’s conduct and the default, default judgment, or dismissal, a statement of reasons is not required.” (Slip opn., p. 2.) The court explained that the text of Code of Civil Procedure section 473, subdivision (b), does not require an explanation of reasons as a prerequisite to mandatory relief. Rather, “what must be attested to is the mistake, inadvertence, surprise, or neglect—not the reasons for it.” (Id. at p. 5.) Additionally, “the purpose of the mandatory relief provision under section 473, subdivision (b) is achieved by focusing on who is to blame, not why.” (Id. at p. 6, italics in original.)

The court noted that it is good practice to include detailed factual explanations as to how the claimed mistake or neglect occurred. According to the court, “[w]here the cause of the default or dismissal is in dispute, the attorney’s affidavit can serve as ‘a causation testing device’ [citations], and a statement of reasons may be quite probative regarding who is at fault[.]” [Citations].) “Because it is often unknown at the time a motion for mandatory relief is filed whether causation will be disputed, an attorney would be well served to include the reasons for his or her ‘mistake, inadvertence, surprise, or neglect’ in the affidavit of fault.” (Slip opn., p. 9.) “But the fact that it may be a very good idea to include an explanation of attorney fault does not mean it is a requirement of section 473, subdivision (b)’s mandatory relief provision.” (Id. at pp. 9-10.)