Filed 8/31/15 Fitting v. Aaijvanger CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

CAITLIN FITTING et al.
, Plaintiffs and Appellants,

v. PAUL KRAAIJVANGER, Defendant and Respondent. A140976
(San Francisco City & County Super. Ct. No. CGC

- 12

- 524821)

Plaintiffs appeal an order setting aside the entry of default judgment in the amount
of $325,504.32 against defendant Paul Kraaijvanger . Default and terminating sanctions

were en tered against Kraaijvanger after his attorney, Karen Y. Uchiyama, declined to file a responsive pleading and failed to comply with court or ders. Uchiyama also did not

contest plaintiffs’ ap plication for default judgment. We find Kraaijvanger is entitled to mandatory relief due to attorney mistake or neglect pursuant to Code of Civil Procedure 1 section 437, subdivision (b), and therefore affirm. 2

1 All statutory references are to the Code of Civil Procedure unless otherwise indicated.

2 Kraaijvanger’s motion to amend his brief to add and include citations to the record is denied. Kraaijvanger fails to demonstrate good cause for failing to include t hese citations in the first instance. Moreover, contrary to Kraaijvanger’s representations, the amendments to the brief are not limited to additional citations to the record. They also include substantive amendment, apparently intended to respond to poin ts raised in plaintiffs’ reply brief.2 I. BACKGROUND The eight plaintiffs in this action are tenants in a six

- unit San Francisco apartment buildin g owned and operated by Kraaijvanger

. The property is managed by Real Equity Group One, LLC (the LLC), which is allegedly Kraaijvanger ’s alter ego. In September 2012, plaintiffs sued Kraaijvanger and the LLC (collectively, defendants) for tenant harassment pursuant to section 37.10B of the San Francisco
Administrative Code

. Kraaijvanger claims plaintiffs brought this suit in retaliation for an unlawful detainer action he filed against one of the plaintiffs and Benny Martin, plaintiffs’ counsel. 3 According to plaintiffs’ complaint
, defendant s demanded plaintiffs provide private, personal, and confidential information, including birth certificates, Social Security numbers, bank information, and the personal relationships of the plaintiffs
within e ach unit. Plaintiffs also alleged defendant s installed cameras around the property for the specific purpose of monitoring plaintiffs and their visitors and to coerce them into
surrender ing their tenancies

. Kraaijvanger was served with the summons and com plaint on October 9, 2012.
On October 19
, 2012, plaintiffs filed an application for an order preserving evidence, seeking a turnover order for the apartment building’s security camera footage

. T he court granted the motion

. On November 14, 2012 , plaint iffs filed a motion to compel comp liance with the evidentiary order
, which defendants declined to oppose . T he court granted the motion on December 17, 2012 , and imposed sanctions in the amount of $2,500. On January 7, 2013 , p laintiff s filed another motion to compel, asserting
defendant s had yet to comply with the court’s prior orders. This motion was also unopposed . T he court granted it an d imposed terminating sanctions, as well as further monetary sanctions in the amount of $8,625. In the meantime, plaintiffs sought entry of default against Kraaijvanger

. Defendants ’ counsel, Karen Y. Uchiyama, had asked plaintiffs to stipulate to extend the

3 Kraaijvanger threatened to file an anti

- SLAPP (strategic lawsuit against public participation) motion unless plaintiffs withdrew this action, but declined to follow through.3

responsive pleading deadline from November 9 , 2012 to November 29, 2012 , stating she
was bu sy preparing for a jury trial. Plaintiffs declined to so stipulate, and requested entry of default against Kraaijvanger on November 9. The clerk initially rejected the request
, but later reversed course and eventually entered default on December 17, 2012

. In April 2013, plaintiffs attempted to enforce the court’s monetary sanction order by levying the LLC’s bank accounts. On May 16, 2013 , defendants moved for an order staying the enforce ment of those orders

. Four days later, defendants also moved to s et aside the default and sanction orders. Among other things, they argued Kraaijvanger was entitled to mandatory relief pursuant to section 473, subdivision (b) because the default was due to Uchiyama’s mistake or neglect. On June 3, 2013, t he trial cour t denied the
motion s as to Kraaijvanger , concluding his counsel was on notice of plaintiffs’ request for sanctions, and that Kraaijvanger failed to file a proposed answer or other pleading in compli a n ce with section 473 , subdivision (b). Additionally, bas ed on an arithmetic error, the court wrongfully concluded the motion to set aside was untimely. The court granted
the motion s as to the LLC, finding there was no evidence it had been properly served. It

appears the LLC was properly served sometime thereafter, because it filed an answer in August 2013. Kraaijvanger moved the c ourt to reconsider

. On July 11, 2013, t he court once again denied Kraaijvanger’s request to set aside the default. The court conclud ed the
default w as not caused by Uchiyama’s mistake, inadvertence, surprise, or neglect, but
was a result of her strategic decision s

. Setting aside the default , reasoned the court,
would reward and encourage Uchiyama ’s mis conduct. 4 In September 2013, Kraaijvanger filed an ex parte application to stay further enforcement of the sanction orders because no appealable default judgment had yet been entered. In the alternative, Kra aijvanger requested the court order and schedule a prove

-

4 Kraaijvanger appealed the June 3 and Jul y 11 orders. The appeal was dismissed

on plaintiffs’ motion.4

up hearing on the default. The court then stayed execution of the sanction orders pending entry of judgment subject to Kraaijvanger posting a $10,760 bond with the court. A prove

- up hearing was held on December 5, 2013. Uchiyama failed to atten d. Consistent with their statement of damages , each of the eight plaintiffs sought $25,000 for emotional distress and $25,000 in punitive damages. The court entered judgment that day, awarding each plaintiff $25,000 in compensatory damages and $10,000 in punitive damages, in addition to $16,594.44 f or sanctions, $28,000 in prejudgment interest, and $909.88 in interest on the sanct ions, for a total of $325,504.32

. The court also awarded plaintiffs $115,872.50 in attorney fees. Pursuant to plaintiff s ’ request at the prove

- up hearing, the claims again st the LLC were dismissed without prejudice. On January 27, 2014, Kraaijvanger filed a motion to set aside the default judgment, arguing (1) the judgment was entered in violation of the court’s prior order staying collection proceedings
, (2) default judgment was the result of Kraaijvanger’s mistake or excusable neglect
, and (3) the motion was timely pursuant to section 473.5. As to the second point, Kraaijvanger asserted he was entitled to discretionary relief because he mistakenly relied on Uchiyama ’s advice to wait and see if plaintiffs could prove up their damages

. In her supporting declaration, Uchiyama explained she mistakenly assumed the
clerk entered default against Kraaijvanger in November 2012, immediately after plaintiffs requested entry of default . Uchiyama s tated she planned to move to set aside the default when her “schedule permitted it,” and she had to think about “ when to bring the motion
and why .” Uchiyama claimed she mistakenly believed defendants could not participate
in the cou rt proceedings that culminated in the terminating sanctions because default had
been entered in November. She also believed it would be less costly for defendants if she
waited to see if plaintiffs “ could or woul d” prove up t heir damages before moving to set aside the default, the default judgment, and the discovery sanctions. Uchiyama stated she never received any kind of notice regarding the prove

- up hearing, and implied she could have changed the outcome if she had attended.5

The trial court granted K raaijvanger’s motion and set aside the default judgment for nonjoinder , concluding the LLC was an indispensable party and plaintiffs could not collect on a default judgment without joining the LLC to the proceedings. The court also
set aside the default o rder. While the court found Kraaijvanger’s motion was untimely pursuant to section 473, it held that equitable principles and the existence of an extri nsic
mistake warranted the requested relief. The court reasoned there was no evidence Kraaijvanger was aware of his counsel’s decision not to file a timely motion and the resulting prejudice to Kraaijvanger was too great to al low the default order to stand.
II. DISCUSSION Plaintiffs now appeal the trial court’s order granting Kraaijvanger ’s January 2014 motion to set aside. They argue the LLC was not an indispensable party, there was no
extrin sic mistake, the trial court made various errors of procedure and law, and Kraaijvanger was otherwise ineligible for relief under section 473, subdivision (b). We disagree on the last point, and find Kraaijvanger was entitled to mandatory relief due to the neglect of his attorney. 5 Section 473, subdivision (b) authorizes a party or his or her legal representative to be relieved from the consequences of mistake, in advertence, surprise, or neglect. The relief may be either discretionary or mandatory. A party seeking discretionary relief on the basis of neglect must show that neglect is excusable. (§ 473, subd. (b).) Further, applications for discretionary relief must be accompanied by a proposed responsive pleading and filed “within a reasonable time, in no case exceeding six months.” ( Ibid. ) The jurisdictional time for discretionary relief begins to run upon entry of default. ( Sugasawara v. Newland (1994) 27 C al.App.4th 294, 296

– 297.) Thus, the discretionary relief provision imposes on parties an obligation to exercise diligence in seeking relief promptly after learning of default. ( Metropolitan Service Corp. v. Casa de Palms, Ltd.

5 As plaintiffs contend, the trial court’s justifications for setting aside the default

— including its findings regarding joinder and equitable relief

— are questionable. However, the court’s ove rall conclusion that Kraaijvanger should not be punished for the neglect of his attorney is sound.6

(1995) 31 Cal.App.4th 1481, 1487.) We review decisions granting or denying discretionary relief for abuse of discretion. ( Huh v. Wang (2007) 158 Cal.App.4th 1406, 1419.) The mandatory relief provisions require a court to grant relief to a party if his or her attorney admits negle ct, even if the neglect was inexcusable. ( Beeman v. Burling (1990) 216 Cal.App.3d 1586, 1605 & fn. 14.) The purpose of the law is to relieve innocent clients of the consequences of their attorney’s fault, to place the burden on counsel, 6 and to discourag e malpractice actions by the defaulted client. ( SJP L imited Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 516.) The mandatory relief provisions require an application to be made within six months. ( § 473, subd. (b) .) The triggering event for the statutory period is the entry of default or the entry of judgment. ( Sugasawara v. Newland
, supra , 27 Cal.App.4th at pp. 296

– 297.) Applications for mandatory relief must be in the “proper form” (§ 473, subd. (b))
, meaning th ey must be accompanied by a proposed responsive pleading ( Carmel, Ltd. v.
Tavoussi (2009) 175 Cal.App.4th 393, 402). If the se conditions are satisfied, the court
does not have discretion to refuse relief. ( SJP L imited Partnership , at p. 516.) Thus,

w her e the availability of mandatory relief does not turn on disputed facts and presents a pure question of law, we review de novo. ( Ibid .) Where facts are in dispute, we review the trial court’s determination for substantial evidence. (See Milton v. Percept ual Development Corp. (1997) 53 Cal.App.4th 861, 867.) The threshold issue on appeal is what form of relief is available to Kraaijvanger

. In May 2013 , about five months after entry of default, Kraaijvanger moved for mandatory relief. That motion was den ied, as was Kraaijvanger ’s motion to reconsider it

. In January 2014

— over a year after the entry of default but only a month after the entry of default judgment

— Kraaijvanger moved for discretionary relief. The order granting that motion is now on appeal. As the trial court held , by the time Kraaijvanger moved for

6 When a court grants mandatory relief, it must also direct the attorney at fault to pay reasonable compensatory legal fees and costs to opposing counsel or parties. (§ 473, subd. (b).)7

discretionary relief in January 2014 , the statutory period for such relief had already run. However, to the extent Kraaijvanger’s motion can be construed as one for mandatory relief, his application is not time barred since it was filed only a month after the entry of judgment. 7 Plaintiffs argue we should only consider the availability of discretiona ry relief
because that was the relief sought in Kraaijvanger’s January 2014 motion. But we may inquire whether there is any alternative ground on which the court could have granted the motion to set aside. ( Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.) Plaintiffs ’ authority does not hold otherwise. They cite to Luri v. Greenwald (2003)
107 Cal.App.4th 1 1 19, 1124

– 1126, which merely states a m otion for discretionary relief accompanied by a declaration of an attorney suggesting attorney fault does not impose a duty on the trial court to consider whether mandatory relief is available. 8 Nothing in that opinion suggests an appellate court may not consider other forms of available relief on appeal. Moreover, in this case, plaintiffs have had ample opportunity to argue the propriety of granting mandatory relief. Kraaijvanger initially moved the trial court for mandatory relief in May 2013
, the crux of Kraaijvanger’s January 2014 motion was that he erred in relying on his attorney to competently represent him in this matter
, and plai ntiffs addressed the applicability of the mandatory relief provisions in their appellate briefing

.

7 Kraaijvanger suggests he may also be relieved from default under section 473.5, which has a two

- year statutory period. His position is meritless. Section 473.5 allows relief from default where service of a summons “has not resulted in actual notice to a party in time to defend the action.” ( Id. , subd. (a).) Here, Kraaijvanger concedes he was served with the summons on October 8 or 9, 2012, over two months prior to the entry of default, and immediately gave the papers t o his attorney.

8 In Luri v. Greenwald , the court also noted that “ without notice that relief is sought under the mandatory provision, the opposing party may not have the opportunity to provide information on the ‘ reasonable co mpensatory legal fees and costs’ required to be awarded” pursuant to the mandatory relief provisions. ( Luri v. Greenwald, supra
, 107 Cal.App.4th at pp. 1125

– 1126.) In this case, our opinion does not preclude plaintiffs from moving the trial court for attorney fees at a later date

.8

Plaintiffs also argue mandat ory relief is unavailable because Kraaijvanger failed to file a proposed responsive pleading with his January 2014 motion. Again, we disagree. “[T]he purpose of the proposed answer requirement is to provide the delinquent party
with an o pportunity to show good faith and readiness to answer the allegations of the complaint,” and courts have held that “substantial compliance” with this requirement is sufficient. ( Carmel, Ltd. v. Tavoussi
, supra , 175 Cal.App.4th at p. 402.) Here, although Kraaijvanger failed to submit a proposed answer with his January 2014 motion, he did file one along with the m otion for reconsideration of the May 201 3 motion. Accordingly, we find he substantially complied with the requirements of the statute. Next, we must determine whether Kraaijvanger has shown attorney fault. We
conclude that he has. As an initial matter, Uchiyama’s neglect caused the initial entry of default and terminating sanctions. According to her declaration, Uchiyama waited until
the 11th h our to ask plaintiffs’ counsel to stipulate to an extension to file Kraaijvanger’s responsive pleading, and when plaintiffs refused to stipulate, she turned her attention to
another case and declined to seek immediate relief from the court. Further, Uchiy ama stated she was under the mistaken impression the clerk entered default against both Kraaijvanger and the LLC in November 2012
, and thus believed she could not attend the hearings on plaintiffs’ motions for sanctions. She also mistakenly believed the c ourt lacked jurisdiction to enter terminating sanctions because defendants had not yet appeared in the action. As plaintiffs point out, Uchiyama’s declaration of fault is equivocal. At one point, she even states: “I was not neglecting my case.” However , we can discern no other explanation for Uchiyama’s handling of this matter, and in any
event, her declaration also admits various mistakes of judgment. Plaintiffs argue Uchiyama’s actions were based on a strategic decision, not neglect
or mistake. They focus not on the entry of default or the imposition of terminating sanctions, but on Kraaijvanger’s failure to cure or set aside the default in a timely

manner. In her declaratio n, Uchiyama stated that, once she believed default had been entered, s he chose to delay applying for relief . Uchiyama explained : “I believed it would be less costly for my clients if we waited to see if Plaintiffs could or would9

actually prove up in court any kind of monetary damages for ‘harassment’ against them
within th e six month statutory limit of C.C.P. Section 473, and then set aside the default,
the ill

- gotten discovery sanctions, and default judgment in one motion.” According to plaintiffs, these statements sh ow the default judgment was part of Uchiyama’s strategy

. Plaintiffs argue Uchiyama intended to allow the entry of default judgment, and if the resulting awar d was not de minimis, she planned to set it aside under section 473.
The merits of plaintiffs’ argument turns on whether Kraaijvanger was required to show diligence in pursuing mandatory relief. Courts are split on the issue. (Compare Metropolitan Service Corp. v. Casa de Palms, Ltd.
, supra , 31 Cal.App.4th at p. 1488 [mandatory relief provisions do not impose dilig ence requirement] with Caldwell v. Methodist Hosp ital (1994) 24 Cal.App.4th 1521 , 1525 [party must show diligence when seeking mandatory relief].) We agree with the line of cases holding a party seeking mandatory relief need not show diligence. Thus, a s long as the default and default judgment were the result of Uchiyama’s mistake or neglect and Kraaijvanger applied for mandatory relief within six months of the judgment, it does not matter if he or his attorney delayed seeking such relief. In any event, even if ther e is a diligence requirement, Kraaijvanger filed his January 2014 motion only a month after the entry of default judgment. We also disagree with plaintiffs ’ contention that relief is never available where default results from a strategic dec ision

. As our colleagues in the Fourth Appellate District framed the issue: “From the c lient’s point of view, it doesn’ t matter a whit whether the default was due to gross carelessness or bad strategy; either way, the client is the one stuck with the jud gm ent resulting from the attorney’ s error. In both cases , it is the attorney’s ‘neglect’ to carry out his duty to his client that causes the problem. In both cases, the client should be entitled to relief if the attorney admits that the inaction was his responsibility. ” ( Solv

- All v. Superior Court (2 005) 131 Cal.App.4th 1003, 1010.) 9 Here,

9 The Second Appellate District reached a contrary holding in Jerry’s Shell v. Equilon Enterprises, LLC (2005) 134 Cal.App.4th 1058 . In that case, the court issued terminating sanctions after the plaintiffs’ attorneys regularly failed to respond to10

to the extent Uchiyama intended to allow the entry of default and default judgment and to leave her client’s fate to the outcome of an uncontested prove

- up hearing, her representation fell well below the standard of care. If we were to allow the judgment to stand, we would be handing Kraaijvanger a malpractice action. This is precise ly what the mandatory provisions of section 473, subdivision (b) were enacted to pre vent. (See SJP
L imited Partnership v. City of Los Angeles
, supra , 136 Cal.App.4th at p. 516.) Plaintiffs also contend mandatory relief is unavailable be cause Kraai jvanger was at least partially responsible for the default

. Courts have refused to gran t mandatory relief where a client contributes to the fault. ( Todd v. Thrifty Corp. (1995)
34 Cal.App.4th 986, 991

– 992 .) But client misconduct must be intentional to preclude relief. (See Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 929 .) Here, the trial court found there was no evidence Kraaijvanger was aware of Uchiyama’s decisions
, and we will not disturb that finding so long as it is supported by substantial evidence. ( Milton v. Perceptual Development Corp.
, supra , 53 Cal.App.4th 861, 867.) We conclude that it
is. Nothing in the record suggest s Kraaijvanger agreed to or approved of Uchiyama’s failure to file a responsive pleading within the statutory period
, or that he had any involvement in Uchiyama’s response to plaintiffs’ discovery requests or their subsequent

mot ions for sanctions. In his declaration, Kraaijvanger stated that, upon being served, he left the matter to Uchiyama and provided her with relevant documen ts with the understanding they would be produced in discovery. Moreover, even if Kraaijvanger was aware or approved of Uchiyama’s decision to wait and see how the prove

- up hearing turned out, as discussed above, lack of diligence does not bar mandatory re lief.

disc overy, ignored all attempts to meet and confer, and defied orders compelling responses. ( Id. at p. 1073) The court held: “[C]ounsel’s obvious plan was to claim attorney fault and revive the claims through a section 473(b) motion for relief. If we

were to hold that counsel’ s actions were subject to automatic, mandatory relief, we would be rewarding and encouraging this wholly improper conduct. A party cannot justly be permitted to seek relief under section 473(b) from sanctions imposed for deliberate fa ilure to respond to discovery or oppose discovery motions. ” ( Id. at p. 1074, fn. omitted.) The instant action is distinguishable. To the extent Uchiyama had a plan, it was not to default but to delay moving to set aside the default.11

In sum, we find Kraaijvanger is entitled to mandatory relief under section 437
, because he applied for relief within six months of judgment, submitted a proposed responsive pleading to the court, and Uchiyama’s declaration demonstrates the default

a nd default judgment were due to attorney neglect or mistake. Because Uchiyama’s conduct may have amounted to incompetent representation, we will order that a copy of this opinion be forwarded to the California State Bar for investigation and possible dis cipline. (Bus. & Prof. Code, § 6086.7.) W e ask the State Bar to consider whether Uchiyama’s actions in this matter warrant investigation and possible discipline.
III. DISPOSITION The order setting aside the default and default judgment is affirmed. T he clerk of this court is ordered to forward a copy of this opinion to Uchiyama, as well as to the California State Bar for investigation and possible discipline. The parties shall bear their own costs on appeal.

_________________________ Margulies, J.

We concur:

_________________________ Humes, P.J.

_________________________ Banke, J.