Hu v. Fang

[63]Opinion

COOPER, P. J. The trial court denied relief under Code of Civil Procedure1 section 473, subdivision (b) from a default judgment because it found that the error resulting in the default was made by a paralegal, not an attorney. We hold that, in the context of a motion under section 473, a paralegal’s mistake is attributable to the attorney responsible for supervising the paralegal. We reverse the default judgment.

Factual and Procedural Background

Sylvia Wei-Ting Hu sued Amy Fang for breach of contract and common counts. Fang, represented by J. Flores Valdez, answered the complaint. On February 16, 2001,Valdez, failed to appear at a status conference. The trial court issued an order to show cause (OSC) for failure to appear and for striking Fang’s answer. Valdez was mailed a copy of the trial court’s minute order.

The hearing on the OSC was set for March 15, 2001, but Valdez again failed to appear. At the March 15, 2001 hearing, the case was transferred from West Covina to Pomona and the hearing on the OSC was continued to April 5, 2001. Valdez was given notice, but again failed to appear. The trial court ordered Fang’s answer stricken and ordered counsel for Hu to file a request for entry of default.

On April 25, 2001, Valdez filed a motion, under section 473, to set aside the order of default (Motion). The Motion was based, inter alia, on the declaration of Valdez and the declaration of his paralegal, Ben Lui. Valdez stated that “[tjhere was a mistake on the part of my paralegal in the calendaring of my appearances” and consequently Valdez understood that the appearance was on April 6th before the Citrus Court instead of April 5th in Pomona. Lui stated “I am the paralegal/ calendar clerk for J. Flores Valdez” and “I made a mistake in calendaring the matter in that I set it for April 6th in Citrus Court instead of the noticed time and date of April 5th at the Pomona Court.” At the hearing on the Motion, Valdez argued that his employee’s mistake should be imputed to him. The trial court denied the Motion, finding “473 only grants relief for mistake, inadvertence, surprise, or excusable neglect of an attorney, not a paralegal.” The court further concluded: “It’s a tough call, but if you choose to use paralegals and have them do your work, then I don’t think it’s your mistake that they make a mistake.” Subsequently, the trial court entered a default judgment. Fang timely appealed.