Deadlines, Special Fee-Shifting Statute: Attorney Asking For Mandatory Relief Stemming From A Failure To File Default Set Aside Motion Before Default Judgment Prove-Up Properly Had To Reimburse Other Side For $10,000 In Attorney’s Fees

Fact That Discretionary Relief Also Included, Which Does Not Allow For Fee Shifting, Did Not Change The Result.

            In Fink v. Cost U Less Cars, Inc., Case No. C085383 (3d Dist. Jan. 29, 2019) (unpublished), attorney was ordered to pay $10,000 in attorney’s fees and costs for the lower court’s grant of a mandatory default relief motion under CCP § 473. The attorney had failed to file a motion to set aside a default before a default judgment prove-up hearing, asking for mandatory and discretionary relief under section 473 from the default judgment. Attorney appealed, arguing that relief should have been granted under the discretionary relief prong which does not require the court to order legal fees and costs.

            Wrong, said the Third District. Attorney moved for both mandatory and discretionary relief, obviously wanting to get relief and not just ride the discretionary “relief valve” which frequently is not granted. By signing the “fall on the sword” declaration, attorney invited the lower court to grant mandatory relief. The amount of the award was not unreasonable, given that the attorney failed to develop an inadequate record for the challenge. Finally, the due process contention was rejected because the fees were not a “sanction,” but really a payment to the opponent to defray the costs of the attorney’s neglectful conduct (the appellate court’s words, not ours).