EVEN ZOHAR CONSTRUCTION & REMODELING v. BELLAIRE TOWNHOUSES

Respondents’ Petition for Review

Cal.May 17, 2013

210804 - ! No. In the Supreme Court of California Even Zohar Construction & Remodeling, Inc., Plaintiff and Appellant, SUPREME COURT vs. FILED Bellaire Townhouses, LLC,et al., MAY 17 2013 Defendants and Respondents. Frank A. McGuire Clerk PETITION FOR REVIEW Deputy From A Published Opinion Reversing An Order Vacating Defaults And A Default Judgment Court of Appeal, Second Appellate District, Division Four, No. B239928 Appeal From An Order Vacating Defaults And A Default Judgment Los Angeles Superior Court, No. BC458347 The Honorable Ralph Dau Paul D. Fogel (SBN 70859) Daniel Andrew Gibalevich (SBN 217116) Dennis Peter Maio (SBN 99894) GIBALEVICH & ASSOCIATES REED SMITH LLP 5455 Wilshire Boulevard, Suite 1701 101 Second Street, Suite 1800 Los Angeles, CA 90036 , San Francisco, CA 94105-3659 Telephone: 323.930.2020 Telephone: 415.543.8700 Facsimile: 323.930.2225 Facsimile: 415.391.8269 James S. Link (SBN 94280) COUNSELOR AND ADVOCATE AT LAW 215 N. Marengo, 3” Floor Pasadena, CA 91101-1504 Telephone: 626.793.9570 Facsimile: 626.356.7414 Attorneys for Defendants and Respondents Bellaire Townhouses, LLC, and Samuel Fersht, Individually and as Trustee of the Fersht Family Living Trust TABLE OF CONTENTS Page I. PETITION.......... ccc ccc eccec cece eee eeeeeeneeeeteeneeneetaeeaaeenenes 1 10Ge (SSS)0) 1 Ill. BACKGROUND....................ec enceeseneeeeeeeeenseneeeenenes 2 IV. REVIEW IS NEEDED TO RESOLVE THE CONFLICT BETWEEN STANDARD MICROSYSTEMS AND THE OPINION BELOW ON THE INTERPLAY BETWEEN SECTIONS 473(B) AND 1008(B) ............. ccc cce ee ee ence ence rene nee neae neers 6 A. Standard Microsystems And The Court Of Appeal Opinion Here Conflict On The Interplay Between Sections 473(b) And 100-1(0 11 1. Section 473(D) ...... ccc cece ccc eeeeeeeseeeeeeeees 11 2. Section 1008(b) ......... ccc cc ecce cece eee eeeeeeeeeeees 14 B. Standard Microsystems Properly Construes, While The Court Of Appeal Opinion Here Erroneously Construes, The Interplay Between Sections 473(b) And 1008(b).................. 15 1. Standard Microsystems Holds That Section 473(b) Prevails Over Section LOO8(D).... ccc cece eee e scene eset eee eeeeeeeettaeees 15 2. The Court Of Appeal Here Rejects Standard Microsystems And Holds That Section 1008(b) Prevails Over Section AT3B(D) oc ccc cece eecent ene eneeneeeneeneeneraeensenes 18 3. Standard Microsystems Is Right And The Opinion Below Is Wrong..................066 20 C. In Erroneously Construing The Interplay Between Sections 473(b) And 1008(b), The Court Of Appeal Erroneously Reversed The Trial Court’s Order.......... ccc cece sees eee eee eeneee enna 28 V. CONCLUSION.......... cece ccc e cece ener ee etna eeneeeaseenneens 34 -ti- TABLE OF AUTHORITIES Page(s) Cases Barrington v. A. H. Robins Co., 39 Cal.3d 146 (1985) ......ccccce cece ec ee eect eee e ee eee eens en eeee neni es 15 Beeman v. Burling, 216 Cal.App.3d 1586 (1990) ....... ccc cece cece eect eee en seen es 11 Benedict v. Danner Press 87 Cal. App.4th 923 (2001) .........ccccce ec eeeeee ee ee ee neee en eeenenes 29 Billings v. Health Plan ofAmerica, 225 Cal.App.3d 250 (1990) ......... cece cee e cece eee rene eens eneeeenens 13 California Correctional Peace Officers Assn. v. Virga, 181 Cal.App.4th 30 (2010) ........ cece cece cence cette rene nene ences 14 California Oak Foundation v. County of Tehama, 174 Cal.App.4th 1217 (2009) 1.0.00... cece cece rere nen e ee ee nee ee es 24 Carmel, Ltd. v. Tavoussi, 175 Cal.App.4th 393 (2009) ..........ccceseeeee ee neeenenenees 13, 28, 30 Cummins, Inc. v. Superior Court, 36 Cal.4th 478 (2005).........ceceeec este eee n sence eee ee seen een eneeenens 21 Day v. City ofFontana, 25 Cal.4th 268 (2001)........cccceeecee eee eee ne cence eee eneeeeasenneeas 21 Douglas v. Willis, 27 Cal. App.4th 287 (1994) ........ccccec eee eerste ee tenons een eenens 13 Elston v. City of Turlock, 38 Cal.3d 227 (1985) .....cccecce cece nsec ence eee eeeteeee eee eenneenaeees 12 Fasuyi v. Permatex, Inc., 167 Cal.App.4th 681 (2008) ..........:cceceeeeeeeeeenene nee eaeenens 14 Gilberd v. AC Transit, 32 Cal. App.4th 1494 (1995)... 0... cece ec sceeeeeeeeenene ease eeeen ens 10 Gutierrez v. G & M Oil Company, Inc., 184 Cal. App.4th 551 (2010) ........ cc cecececeseene tener tence eeeneneees 28 Lang v. Hochman 77 Cal.App.4th 1225 (2000) .........ccecece eee ee teeta teeeenenenen ens 28 Le Francois v. Goel, 35 Cal.4th 1094 (2005) ....... cc cceeeee cece e ee eee eset eneeeeneenees 10, 14 Lee v. Wells Fargo Bank, 88 Cal.App.4th 1187 (2001) ..........cececeeeeeeeeeeenenereneeeeeenees 10 - ill - TABLE OF AUTHORITIES Page(s) Manufacturers Life Ins. Co. v. Superior Court, 10 Cal.4th 257 (1995).........ccccceccc cece cree e eee ea neta tense eneeeaees 21 Maynard v. Brandon, 36 Cal.4th 364 (2005)..........ce cece cece sect ee ee ne en ee cree renee naeeee es 12 Metropolitan Service Corp. v. Casa de Palms, Ltd., 31 Cal.App.4th 1481 (1995)...eeeeens 11, 12, 13, 30 Milton v. Perceptual Development Corp., 53 Cal.App.4th 861 (1997) .......ccccece eee eene ee ee ees 22, 23 Morse v. Custis, 38 Cal. App.2d 573 (1940) ..... cece ec cece cece eee eee e eee e eens 22 Neary v. Regents of University of California, 3 Cal.4th 273 (1992) .......cccccccce cece eeeee eset eee neee ene eeneennennes 27 People ex rel. Reisig v. Broderick Boys, 149 Cal.App.4th 1506 (2007) ...... 0... ccc cece cece e eee e cence eee 13 People v. United Bonding Ins. Co., 5 Cal.3d 898 (1971) oo... ccc cccc cece cece ee ee nee e eee enseneeeeeneeenes 21 Pineda v. Williams-Sonoma Stores, Inc., 51 Cal.4th 524 (2011)........c cece cece e ence eee ee eee eeeeneeneeeneenes 21 Radzanower v. Touche Ross & Co., 426 U.S. 148 (1976) ......cccc ccc e sce e nee eeeee eee ens eee neeneeenaeeueenes 24 Ron Burns Construction Co., Inc. v. Moore, 184 Cal.App.4th 1406 (2010) ......... cece ec ee cence teen ee enes 26, 27 SJP Limited Partnership v. City ofLos Angeles 136 Cal. App.4th 511 (2006) ........ ccc cece cece eee e eee nenenen eens 29 Solberg v. Superior Court, 19 Cal.3d 182 (1977) .......cccccece eee e eee e senses eeeeeeeeeeeeeneenees 21 Standard Microsystems Corp. v. Winbond Electronics Corp., 179 Cal. App.4th 868 (2009) ..........ccecceeene erence ee es 2, 15, 16, 17 State Farm Fire & Casualty Co. v. Pietak, 90 Cal.App.4th 600 (2001) ........ ccc ccecece cece eens ee eeeneenenenees 30 Stop Youth Addiction, Inc. v. Lucky Stores, Inc., 17 Cal. 4th 553 (1998)........ ccc cece cece cece recta eeeeeeeneenneeenes 24 Wozniak v. Lucutz, 102 Cal.App.4th 1031 (2002) ......... ccc cece eee e rene ee en en ences 10 Zamora v. Clayborn Contracting Group, Inc., 28 Cal.4th 249 (2002)..........cccecceeee eee eee eee eee esse eeesneentenenas 12 _iv- Cal. Cal. Cal. Cal. Cal. Cal. Cal. Civ. Civ. Civ. Civ. Civ. Civ. Civ. Stats. 1991, ch Stats. 1992, ch TABLE OF AUTHORITIES Page(s) Statutes Proc. Code § 1008 ............ cece ece cece eee e eee en eees passim Proc. Code § 1008(a) ....... cc ccccc cece eeeeeeeeeeeenen ens 26 Proc. Code § 1008(b) ....... ccc cece cece eee een eee eens passim Proc. Code § 1008(d) ........ cc ccc ec cccccc eee e eee eneeneeeeeeees 9 Proc. Code § 473 ........c ccc ccceceenceeeeeneeeeenenees 7, 20, 26 Proc. Code § 473(b).......... cc cccceeseceeeeeeeeeeeeeeees passim Proc. Code § 473(C) ....... cc ccccceeeneeeeeeeeeeeeeeneenanes 7, 23 © 1003, 8 1cece cee cce cece eee e cence eeeeeeeeneees 13 . 460, § 4......eee e eee ee nee eee e eee en EEE ESE EE EERE EEE ES 14 Other Authorities 8 Bernard E. Witkin, California Procedure Attack on Judgmentin Trial Court § 145(1), (3) (Sth ed. 2008) (Westlaw)................ 11 Merriam-Webster Dictionary, available at http://www.merriam- webster.com/dictionary/whenever?show =0&t=-1367958576 (visited 5/13/13) 0... ccc ccecc eee cece eee e eens eee ene en enone een ene snes 22 I. PETITION Defendants and respondents Bellaire Townhouses, LLC, and Samuel Fersht, individually and as trustee of the Fersht Family Living Trust (collectively, defendants), petition this Court for review of the published opinion of the Second Appellate District, Division Four (Willhite, J., with Epstein and Suzukawa, JJ., conc.) (Opn.). The Court of Appeal reversed an order entered by the Los Angeles County Superior Court (Hon. Ralph Dau, Judge) that vacated, under Code of Civil Procedure section 473(b), two defaults and a $1.7 million default judgment that had been entered against defendants for failing to file a responsive pleading to a complaint filed by plaintiff and appellant Even Zohar Construction & Remodeling, Inc. (EZ). (All unspecified statutory references are to the Code of Civil Procedure.) The Court of Appeal summarily denied defendants’ petition for rehearing. Copies of the opinion and the denial order are attached as Exhibits A and B, respectively. Il. ISSUE Whena defendant has previously but unsuccessfully moved to vacate a default or default judgment under section 473(b) but files a subsequent and proper motion for mandatory relief from the default or default judgment under section 473(b) based on his or her attorney’s admission of fault and does not present new or different facts, circumstances, or law under section 1008(b): — must the trial court grant that motion, as the Sixth District held in Standard Microsystems Corp. v. Winbond Electronics Corp., 179 Cal.App.4th 868 (2009)? — or must the court deny that motion, as the Second District, Division Four here held, disagreeing with and refusing to follow Standard Microsystems? Ii. BACKGROUND Defendants adopt the Court of Appeal’s recitation of the factual and procedural background. (See Opn. 3-13) We briefly summarize that background below. Defendants filed two motions for mandatory relief from default under section 473(b) based on attorney fault. They accompanied the first motion with a declaration by their attorney, Daniel Gibalevich, who expressly admitted fault (characterized as “excusable neglect”), attributing it largely to unexplained personal and professional omissions. (Opn. 4) The trial court denied that motion. (Opn. 6) (We discuss the motion and ruling in greater detail, post.) Defendants accompanied their second motion with another declaration by Gibalevich in which Gibalevich again expressly admitted his fault. (Opn. 7-8) This time, he did not characterize his neglect as “excusable,” and but explained his personal and professional omissions: On August 25, 2011, investigators with the Los Angeles District Attorney’s office served [a] search warrant ... at my office ..... The investigation focused on medical providers and not on me or mypractice.... [O]ne of my associates, Mr. Savransky, resigned his position right after the search. That left me and Ms. Gina Akselrud as [the] only attorneys [in my office]... In my effort to secure the return of myclient files, I engaged Mr. Shkolnikov, a criminal defense attorney. I volunteered to assist him in his research and drafting efforts.... ... I spent all of my time on efforts to return my client’s files. I researched and wrote manydrafts of the motions that were filed. This consumed me. I was working on this most of the day, every day. When I wasn’t in front of the computer, I thought of nothing else. I began to obsess over my reputation and the disclosures that I had to make to Judges and opposing counsel alike [about the search].... I have to confess that this feeling of embarrassment is the reason why I failed to set out these facts in the declaration previously filed. I will never forget that day or the hell that followed.... I did experience a period of time, from middle of September through October of 2011, where I stayed away from the office, for days at a time.... I was ashamed and embarrassed. I was embarrassed in front of my employees, opposing counsel and judges that I had to face. This feeling of embarrassmentisstill with me. Due to my frequent absences, my state of mind and obsession with getting my client files back, I neglected this matter. I failed to enter a responsive pleading and did not respond to [plaintiff's] emails notifying me of the default. Since the responsive pleading was never entered, defaults and default judgments were taken against my clients, the Defendants. HadIfiled the responsive pleading on time, prior to defaults being taken, the defaults and default judgments would have been avoided. It is clear that my mistake, inadvertence and neglect resulted in the entry _4- of defaults and default judgments against my clients, the Defendants herein. Id. (boldface and ital. omitted). The trial court granted this motion. (Opn. 12) It concluded that, under Standard Microsystems, section 473(b) prevails over section 1008(b), and stated that “[t]he legislature has determined that even in cases involving conduct such as that demonstrated by attorney Gibalevich, where no part of the fault is shown to be attributable to the defendant clients, relief is mandatory.” (Opn. 13) (Wealso discuss this motion and ruling in greater detail, post.) EZ appealed the order vacating the defaults and default judgment. (Opn. 13) The Court of Appeal reversed, holding that section 1008(b) prevails over section 473(b). Thus, it held, under section 1008(e), because neither defendants nor Gibalevich presented new ordifferent facts, circumstances, or law undersection 1008(b), the trial court lacked jurisdiction to grant the motion. (Opn. 16, 19-22) IV. REVIEW IS NEEDED TO RESOLVE THE CONFLICT BETWEEN STANDARD MICROSYSTEMS AND THE OPINION BELOW ON THE INTERPLAY BETWEEN SECTIONS473(b) AND 1008(b) Section 473(b) permits a court, “upon any terms as may be just,” to relieve a party from a default, default judgment, or dismissal “taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” But section 473(b) requires a court to grant relief from a default, default judgment, or dismissal in cases of mistake, inadvertence, surprise, or neglect by the party’s attorney, as follows: 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. Id. Section 473(b) goes on to state that, “wheneverrelief is granted based on an attorney’s affidavit of fault,” “[t]he court shall ... direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” ! On the other hand, section 1008(b) permits a party “who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms,” to “make a subsequent application for the same order” only upon a showing of 1 Section 473 contains other conditions relevant to the grant of mandatory relief based on attorney fault. Section 473(c)states: (1) Whenever the court grants relief from a default, default judgment, or dismissal based on any of the provisions of this section, the court may do any of the following: (A) Impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party. (B) Direct that an offending attorney pay an amount no greater than one thousand dollars ($1,000) to the State Bar Client Security Fund. (C) Grant other relief as is appropriate. (2) However, where the court grants relief from a default or default judgment pursuant to this section based upon the affidavit of the defaulting party’s attorney attesting to the attorney’s mistake, inadvertence, surprise, or neglect, the relief shall not be made conditional upon the attorney’s payment of compensatory legal fees or costs or monetary penalties imposed by the court or upon compliance with other sanctions ordered by the court. “new or different facts, circumstances, or law, in which case it shall be shown byaffidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” Section 1008(e) deprives the court of jurisdiction to grant such a renewed motion without the requisite new or different facts, circumstances, or law: “This section specifies the court’s jurisdiction with regard to applications for ... renewals of previous motions, and applies to all applications ... for the renewal of a previous motion, whether the order deciding the ... motion is interim or final. No application ... for the renewal of a previous motion may be considered by any judge or court unless made according to this section.” Given these two statutes, when a party has unsuccessfully moved to vacate a default or default judgment under section 473(b), maya court nevertheless grant relief when the party again movesfor mandatory relief based on an admission of attorney fault even though the party does not present new or different facts, circumstances, or law, as section 1008(b) requires? In other words, in such a situation, does section 473(b) prevail over section 1008(b) or does section 1008(b) prevail over section 473(b)? The Court of Appeal’s opinion here creates a direct conflict with Standard Microsystems in the answer to that question. Standard Microsystems holds that section 473(b) prevails over -8- section 1008(b). But the Court of Appeal here holds that section 1008(b) prevails over section 473(b). Whichstatute prevails presents an important question worthy of review. For onething, litigants frequently invoke sections 473(b) and 1008(b) in the trial courts, and those statutes are frequently discussed in Court of Appeal opinions. According to Westlaw, some 40 published opinions have cited section 1008(b) in its present form, while some 165 published opinions have cited section 473(b) in its present form. Consequently, any conflict, like the one between Standard Microsystems and the opinion of the Court of Appeal below, threatens substantial mischief as courts and litigants are forced to guess which statute governs. And should that guess prove wrong in a court that believes section 1008(b) governs, a litigant faces sanctions and punishment by contempt under section 1008(d). To avoid such results, this Court should intervene. Considerations of public policy confirm the need for review. Section 473(b)’s mandatory relief is intended to relieve the innocent client of the consequencesofits attorney’s fault, to place the burden on the errant attorney rather than the defaulted client, to discourage additional litigation in the form of malpractice actions by the client against the attorney, and to thereby permit the client to have its day in court and a decision on the merits. Section 1008(b)’s purposeis to reduce the number of renewal motions and thus conserve judicial resources. Each of these policies is strong. Each, however, is in tension with the other, one potentially favoring litigants over courts, the other potentially favoring courts overlitigants. At the time Standard Microsystems was decided, only three other published opinions had addressed the interplay between section 473(b) and 1008(b) as to mandatory relief from default based on attorney neglect—Gilberd v. AC Transit, 32 Cal.App.4th 1494 (1995); Lee v. Wells Fargo Bank, N.A., 88 Cal.App.4th 1187 (2001); and Wozniak v. Lucutz, 102 Cal.App.4th 1031 (2002), disapproved on another point in Le Francois v. Goel, 35 Cal.4th 1094, 1107 n.5 (2005). With minimal analysis, Gilberd expressed the view that that section 1008(b) prevailed over 473(b), stating only that to hold otherwise would “undermine the intent of the Legislature as specifically expressed in section 1008, subdivision (e) ...” Gilberd, 32 Cal.App.4th at 1501. With similarly minimal analysis, and without addressing Gilberd, Lee and Wozniak expressed the opposite view. Lee, 88 Cal.App.4th at 1191 n.6; Wozniak, 102 Cal.App.4th at 1043. With the publication of the Court of Appeal’s opinion here— and its several-paragraph explanation of why it disagrees with Standard Microsystems—there is now a direct and irreconcilable conflict among the courts of appeal. This Court should resolve that conflict and settle the important question as to which statute prevails over which. -10-- In the sections that follow, we explore both court of appeal decisions and explain why this Court should grant review and resolve the conflict in favor of Standard Microsystems. Well-settled rules of statutory construction establish that section 473(b) prevails over section 1008(b): the former is remedial and more specific, whereasthe latter effects a procedural forfeiture and is more general. Public policy confirms that conclusion: even though the policy of ensuring a litigant its day in court and a decision on the merits and the policy of conserving judicial resources are each strong,the latter should yield to the former, since courts exist for litigants, and not the other way around. A. Standard Microsystems And The Court Of Appeal Opinion Here Conflict On The Interplay Between Sections 473(b) And 1008(b) 1. Section 473(b) Section 473(b) is comprehensive in its scope, broadly covering relief from default based on attorney fault in “[al]ll civil actions and special proceedings, including summary proceedings,” in “all trial courts.” 8 Bernard E. Witkin, California Procedure Attack on Judgment in Trial Court § 145(1), (3) (th ed. 2008) (Westlaw). Before 1988, section 473(b) permitted a court to grant a party relief from default only if any fault by the party’s attorney was excusable. E.g., Metropolitan Service Corp. v. Casa de Palms, Ltd., 31 Cal.App.4th 1481, 1486-87 (1995); Beeman v. Burling, -l1l- 216 Cal.App.3d 1586, 1602 (1990). The statute prohibited the court from granting relief from default if such attorney fault was inexcusable. Rather, “[t]he attorney’s inexcusable neglect was traditionally imputed to the client, whose redress was a malpractice action against the attorney.” Metropolitan Service Corp., 31 Cal.App.4th at 1487. With the enactment of the mandatory relief provisions in 1988, however, an “entirely different standard” was created. Id. Those provisions “require the court to grant relief if the attorney admits neglect, even if the neglect was inexcusable. [Citations.] The purpose of this law is to relieve the innocent client of the burden of the attorney’s fault, to impose the burden on the erring attorney, and to avoid precipitating more litigation in the form of malpractice suits. [Citation.]” Jd. (ital. orig.). More broadly, the law’s purpose is to permit the client to have its day in court and obtain a decision on the merits. See, e.g., Zamora v. Clayborn Contracting Group, Inc., 28 Cal.4th 249, 256 (2002) (section 473(b) is “ ‘to be liberally construed and sound policy favors the determination of actions on their merits’ ”); Elston v. City of Turlock, 38 Cal.3d 227, 233 (1985) (“because the law strongly favors trial and disposition on the merits, any doubts in applying” section 473(b) “must be resolved in favor of the party seeking. relief from default”); accord Maynard v. Brandon, 36 Cal.4th 364, 371- 72 (2005). -12- Three years later, in 1991, the Legislature modified section 473(b)’s timeliness/diligence requirement. Stats. 1991, ch. 1003, § 1. While the 1988 version required a “timely” application for mandatory relief, which was construed to incorporate a diligence requirement, Billings v. Health Plan of America, 225 Cal.App.3d 250, 258 (1990), the 1991 version required—andstill requires—only that the application be made within six months after entry of judgment. Metropolitan Service Corp., 31 Cal.App.4th at 1487; Douglas v. Willis, 27 Cal. App.4th 287, 292 (1994). Specifically, section 473(b) provides that, “even if the [attorney] neglect was inexcusable,” the trial court must grantrelief from default so long as the application for relief complies with the conditions specified, Metropolitan Service Corp., 31 Cal.App.4th at 1487—or, more accurately, so long as the application complies with the conditions at least “substantially,” Carmel, Ltd. v. Tavoussi, 175 Cal.App.4th 393, 396 (2009). To quote section 473(b), the court “shall” grant relief from default or a default judgment “whenever an application for relief [1] is made no more than six months after entry of judgment, [2] is in proper form, and [3] is accompanied by an attorney’s sworn affidavit attesting to his or her . neglect.” (Ital. added). Section 473(b) specifies a single exception: relief is required “unless the court finds that the default ... was not in fact caused by the attorney’s ... neglect.” Section 473(b) is a “remedial statute.” People ex rel. Reisig v. Broderick Boys, 149 Cal.App.4th 1506, 1517 (2007); accord -13- Fasuyi v. Permatex, Inc., 167 Cal.App.4th 681, 698 (2008). It aims to avoid procedural forfeiture and to permit a client, as stated, to have its day in court and obtain a decision on the merits. 2. Section 1008(b) In 1992, the Legislature amended section 1008, making it 1” “applicable to “all” “application[s] ... for the renewal of a previous motion,” specifying “the court’s jurisdiction with regard to [such] applications,” and declaring that “[nJo [such] application ... may be considered by any judge or court unless made according to this section.” Stats. 1992, ch. 460, § 4 (quoting § 1008&(e)). “Before oe 6these changes,” section 1008 purported to be neither jurisdictional nor exclusive.’ ” Le Francois, 35 Cal.4th at 1099. Afterwards, it purported to be both. Seeid. The Legislature’s purpose in amending section 1008(b)into its present form was “ ‘to reduce the numberof... renewals of previous 2 9 “6 motions heard by judges in this state’ in order ‘to conserve the court’s resources by constraining litigants who would attempt to bring the same motion over and over.’ ” Jd. at 1098, 1100. By limiting a party’s ability to complain of error and restricting the jurisdiction of a court to correct it, section 1008(b) “ ‘effect[s] ... procedural forfeiture.” ” California Correctional Peace Officers Assn. Vv. Virga, 181 Cal.App.4th 30, 48 (2010)(ital. omitted). By doing so, the statute is thus in derogation of the -14- ow 6 , 99strong public policy’ that “seeks to dispose oflitigation on the merits rather than on procedural grounds.” Barrington v. A. H. Robins Co., 39 Cal.3d 146, 152 (1985). B. Standard Microsystems Properly Construes, While The Court Of Appeal Opinion Here Erroneously Construes, The Interplay Between Sections 473(b) And 1008(b) 1. Standard Microsystems Holds That Section 473(b) Prevails Over Section 1008(b) In Standard Microsystems, two clients failed to respond to a complaint based on their attorney’s advice, which proved erroneous, that the complaint’s service was ineffective. 179 Cal.App.4th at 874-76, 880. After defaults were entered against the clients, they unsuccessfully moved for discretionary relief from default under section 473(b), arguing the attorney’s excusable neglect. Id. at 877- 79. The trial court denied the motion and entered a default judgment. Jd. Theclients then discharged their attorney, retained a new one, and moved for mandatory relief from the defaults and the default judgment based on their former attorney’s inexcusable neglect, with that attorney filing a declaration attesting to his inexcusable neglect. Jd. at 879-80. The trial court denied the motion on the ground, amongothers, that it was an improper motion for reconsideration. Id. at 884. The Sixth District reversed. Jd. at 873, 908. First, it concluded that the motion for mandatory relief was not an application for reconsideration of their motion for discretionary -15- relief because it “did not ask the court to reconsider its previous order”—it rested on a different theory and ground (inexcusable rather than excusable neglect) and relied on different facts (that the neglect was inexcusable). Jd. at 891. Second, the court stated it was reluctant to find that the mandatory relief motion was an application to renew the discretionary relief motion under section 1008(b)—i.e., sought the “same order” as the earlier motion— because it rested on a different theory and ground and sought different relief (i.e., vacation of the default judgment as well as the defaults). Id. at 891-93. Third, it concluded that even if the mandatory relief motion was an application to renew the discretionary relief motion under section 1008(b), it would not matter, since in the case of conflict, section 473(b) prevails over section 1008(b). Jd. at 893-96; see id. at 893 (“Even if section 1008 applied by its terms to defendants’ second motion—or that motion could on some other coherent rationale be held to come within the statute’s scope—we would decline to attribute to the statute a legislative intention to bar the operation, under the circumstances shown here, of the mandatory relief provisions of section 473(b).”). As to this last point, Standard Microsystems held that “liJnsofar as ... a conflict actually exists, it must be resolved in favor of allowing relief under section 473(b), not denying it under section 1008.” Jd. at 894. Section 1008(b), the court said, “inflicts a procedural forfeiture, such that uncertainties should be resolved - 16 - against its application.” Jd. (ital. orig.). “Section 473(b), in contrast, is a remedial statute, and as such is to be construed liberally, which is to say expansively, to favor its object that cases be adjudicated on the merits rather than determined by default.” Id. (citations omitted; ital. orig.). “The same result follows from the familiar principle that in the event of conflict, specific provisions must prevail over more general ones.” Jd. at 895 (citations omitted). “Section 1008 deals with the general subject of motionsto reconsider previous orders and renewals of previous motions. Section 473(b) deals with applications for relief from a default or default judgment entered through the fault of the defendant’s attorney. As the latter subject is considerably narrower and more specific than the former, the latter provision will, absent some countervailing consideration, govern in any conflict.” Id. Standard Microsystems also explained the policy reason why section 473(b) should prevail over section 1008(b). It noted that when the mandatory relief provision was enacted in 1988, the Legislature “manifestly intended to endthe prior regime insofar asit had relegated victims of inexcusable attorney neglect to a separate action for malpractice. [Citation.]” /d. at 894. The Court continued: That remedy was not only uncertain and expensive for the client, but extremely inefficient for the justice system as a whole, in that it generated a complex second lawsuit, typically involving the virtual recreation of the _17- first in order to prove causation and damages, rather than simply litigating the first one on the merits by lifting the default—having due regard, in the process, for any harm suffered by the opposing party as the result of the attorney's conduct. The Legislature’s solution— which makesup in elegance whatsection 1008 so sorely lacks—was to mandate relief upon the attorney’s attestation to his own fault, while minimizing prejudice to the opposing party by entitling him to reasonable compensation for his fees and costs. (§ 473(b).) Id.2 2. The Court Of Appeal Here Rejects Standard Microsystems And Holds That Section 1008(b) Prevails Over Section 473(b) The Court of Appeal here “decline[d] to follow Standard Microsystems,” stating that “we do not find Standard Microsystems persuasive” (Opn. 3, 17, 21) It gave five reasons whyit believed section 1008(b) prevails over section 473(b). First, section 1008’s language “is clear and unambiguous.” (Opn. 17) Section 1008(e) “provides that section 1008’s provisions ‘appl{y] to all applications ... for the renewal of a previous motion’ 2 Standard Microsystemspetitioned this Court for review of the Sixth District’s opinion. (No. S179107 (Dec. 31, 2009 Dkt. Entry)) The Court denied review, although Justice Corrigan voted to grant. (Feb. 24, 2010 Dkt. Entry) - 18 - and that ‘/nJo application ... for the renewal of a previous motion may be considered by any judge or court unless made according to this section’ ”; the “use of ‘all’ and ‘no’ in section 1008 conveysthe clear meaning that every renewal motion, without exception and not excluding one for mandatory relief from default based upon an affidavit of attorney fault, is governed by section 1008’s requirements”; therefore, “[u]nless the moving party meets those criteria, the trial court lacks jurisdiction to consider the motion.” (Opn. 18 (ital. orig.)) Second, having amended section 473(b) to provide for mandatory relief in 1988 but having “enacted the relevant amendments to section 1008 in 1992,” the Legislature was “deemed to be aware of existing statutes.” (Opn. 18-19) Had it “intended to exempt renewed motions for mandatory relief ... from the requirements of section 1008, it could have done so through appropriate language in either statute. But it did not.” (Opn. 19) Third, the court “disagree[d] with Standard Microsystems’s conclusion that [the two statutes] are in conflict.” (Opn. 19) “To the contrary, the statutes are complimentary [sic].” (/d.) Section 473(b) “states the requirements of making a motion forrelief from default in the first instance,” and “says nothing about second or subsequent motions made on the same grounds”; “[t]hat situation is governed by section 1008 for all renewed motions of every type, without exception.” (Jd. (ital. orig.)) -19- oe Fourth, the court was “not persuaded by Standard Microsystems’ conclusion that to resolve the purported conflict, section 473 must prevail over section 1008, because the formeris a remedial statute whereas the latter creates a procedural forfeiture.” (Opn. 19) Even though section 473(b) is a “remedial statute,” section 1008(b) does “not work a forfeiture for parties who bring second or successive motions,” but “simply state[s] the conditions under which second or successive motions can be granted, in addition to the specific requirements” of section 473(b). (Opn. 19- 20) Fifth and final, according to the court, “Standard Microsystems’ remedial/forfeiture analysis, if accepted, ‘would create a proverbial “slippery slope” and foment even morelitigation 1.”°” .concerning what is in fact “remedia (Opn.. 20 (apparently quoting EZ’s briefs)) “Carried to its logical conclusion,” the court said, “Standard Microsystems’ analysis would exclude from the reach of section 1008 any renewal motion claimed to be remedial, thereby nullifying the plain language of section 1008 that it applies to all renewal motions and thwarting the Legislature’s intent to limit repetitive motions.” (Opn. 21, ital. orig.) 3. Standard Microsystems Is Right And The Opinion Below Is Wrong The conflict between Standard Microsystems and the Court of Appeal below is direct and irreconcilable. That conflict threatens substantial mischief as courts and litigants are forced to guess which .20- statute governs, and threatens litigants with sanctions and punishment by contempt if a court rules the litigant has guessed wrong. This Court should settle the conflict now—and hold that Standard Microsystems was correct and the Court of Appeal’s opinion below wasincorrect. In construing a statute, the court’s “fundamental task” is to “ascertain the intent of the Legislature” in order to “effectuate” the statute’s “purpose.” Cummins, Inc. v. Superior Court, 36 Cal.4th 478, 487 (2005); Day v. City of Fontana, 25 Cal.4th 268, 272 (2001). This entails “ascertain[ing] and declar[ing] what is in terms 6 or in substance contained” in the statute, “not ... insert[ing] what has been omitted” or “omit[ting] what has been inserted.” Manufacturers Life Ins. Co. v. Superior Court, 10 Cal.4th 257, 274 (1995). When the statute’s words are “clear and unambiguous,” that task begins and ends with its words. Solberg v. Superior Court, 19 Cal.3d 182, 198 (1977). That said, different kinds of statutes are construed differently. Remedial statutes are construed “liberally,” Pineda v. Williams-Sonoma Stores, Inc., 51 Cal.4th 524, 533 (2011), while procedural forfeiture statutes are construed “strictly,” People v. United Bonding Ins. Co., 5 Cal.3d 898, 906 (1971). The potential conflict between the two statutes here, each of which is comprehensive in its scope, appears at the macro level. Section 473(b) broadly covers relief from mandatory default based on attorney fault, while section 1008(b) broadly covers applications for the renewal of a previous motion—i.e., for the “same order” Le that the court has already declined to make. But section 473(b) and section 1008(b) overlap when a party applies to renew a previous motion for relief from default based on attorney fault. Both statutes, therefore, cannot be comprehensive in the area in which they overlap. The potential conflict also appears at the micro level. Section 1008(b) limits repetitive applications generally. But section 473(b) does not limit repetitive applications for mandatory relief from default based on attorney fault. Rather, section 473(b) requires such relief “whenever an application for relief is made no more than six months after entry of judgment” and is in the proper form and is accompanied by the proper affidavit. “Whenever” means “as often 99 > 6 9 66 as,” “at any time, 9 6 at any time when,” “at whatever time,” “at 9 ”whatevertime it shall happen,” and “at what time soever.” Morse v. Custis, 38 Cal.App.2d 573, 576-77 (1940) (internal quotation marks omitted); accord, e.g., Merriam-Webster Dictionary, http://www.merriam-webster.com/dictionary/whenever?show =0&t- = 1367958576 (last visited May 13, 2013). By requiring relief “whenever” the party properly applies for relief within six months, section 473(b) does not examine whetheror not the party’s application was dilatory. See Milton v. Perceptual Development Corp., 53 Cal.App.4th 861, 868 (1997) (section 473(b) does not “include a requirement of diligence”). Likewise, section 473(b) does not examine whetheror not the party’s application was repetitive. -22- 0° To be sure, by requiring such relief, section 473(b) mayinvite repetitive applications. But that “invitation” would be limited to applications “made no more than six months after entry of judgment.” See § 473(b). And “accepting” that “invitation” could prove costly, since upon granting suchrelief, the court must “direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties” and may “[i]mpose a penalty” of up to “one thousand dollars ($1,000) upon an offending attorney or party,” “[d]Jirect that an offending attorney pay an amount”of up to “one thousand dollars ($1,000) to the State Bar Client Security Fund,” and “[g]rant other relief as is appropriate.” § 473(b), (c). As Standard Microsystems concluded, two rules of statutory construction compel the conclusion that section 473(b) prevails over section 1008(b). One is that a specific statute prevails over a more general one—and here, section 1008(b) deals with applications for renewal of previous motions in all kinds of cases, while section 473(b) deals with mandatory relief from default based on attorney fault. The other rule is that a remedial statute prevails over one that effects a procedural forfeiture—and here, section 473(b) relieves a party from an attorney-caused default, while section 1008(b) limits a party’s ability to complain of error and restricts the court’s jurisdiction to correctit. - Moreover, none of the five reasons the Court of Appeal here gave in finding Standard Microsystems unpersuasive withstands scrutiny. -23.- First, even though section 1008(b)’s language “is clear and unambiguous” in broadly covering applications for renewal of previous motions, section 473(b)’s language is no less so in broadly covering mandatoryrelief from default based on attorney fault. The clarity of the language in both statutes is what creates the conflict; it does not resolve it. Second, that the Legislature amended section 1008(b) more recently than section 473(b) does not mean it intended to impliedly repeal section 473(b). A later statute is “not construed as an ‘implied repeal’ ” of an earlier statute “unless it is clear” that the later statute was “intended to supersede” the earlier one. California Oak Foundation v. County of Tehama, 174 Cal.App.4th 1217, 1221 (2009). There is no evidence that the Legislature intended section 1008(b) to supersede section 473(b). Similarly, an earlier statute “dealing with a narrow, precise, and specific subject is not submerged” by a later statute “covering a more generalized spectrum.” Radzanower v. Touche Ross & Co., 426 U.S. 148, 153 (1976); see also Stop Youth Addiction, Inc. v. Lucky Stores, Inc., 17 Cal.4th 553, 568 (1998) (“the implied repeal doctrine applies ‘[w]hen two or more statutes [enacted by the same legislature] concern the same subject matter and are in irreconcilable conflict’ ” (ital. added)). Section 473(b) is the earlier statute “dealing with [the] narrow, precise, and specific subject” of mandatory relief from default based on attorney fault. Section 1008(b) is the later statute “covering [the] more generalized spectrum” of applications for renewal of previous motions. While the two statutes can overlap in -24- their application, on their face they do not deal with the “same subject matter.” Third, as shown, section 473(b) and section 1008(b) are “in conflict” whenever they both apply in any given case. Fourth, as also shown, section 1008(b) would “work a forfeiture” for any party who made a “second or successive motion[ ]” for mandatory relief from default based on attorney fault if, notwithstanding the severity of the fault, the party could not satisfy section 1008(b)’s requirements. Fifth and finally, Standard Microsystems’ “remedial/forfeiture analysis” would not create a “slippery slope.” As noted, the “slope” the Court of Appeal below purported to discern was that, “[clarried to its logical conclusion, Standard Microsystems’ analysis would exclude from the reach of section 1008(b) any renewal motion claimed to be remedial, thereby nullifying the plain language of section 1008(b) that it applies to all renewal motions and thwarting the Legislature’s intent to limit repetitive motions.” (Opn. 21 (ital. orig.)) But that “slope” does not exist. Standard Microsystems held only that section 473(b), a remedial statute, governs over section 1008(b), a procedural forfeiture statute. It went no further. Thatis, it did not suggest that “any renewal motion claimed to be remedial” automatically defeats section 1008(b)’s requirements. To besure,if 25 - such a “renewal motion” was based on statute that requires relief “whenever” the litigant complies with its requirements, that motion should succeed, as the Legislature’s “intent to limit repetitive motions” should take a back seat. But the Court of Appeal was wrong to suggest that any renewal motion “claimed to be remedial” would trump section 1008(b) when that motion, unlike the motion here, lacks a specific, statutorily-endorsed basis forrelief. The Court of Appeal’s reliance on Ron Burns Construction Co., Inc. v. Moore, 184 Cal.App.4th 1406, 1418-20 (2010) in support of its “slippery slope” point was misplaced. (Opn. 20) In Ron Burns Construction, the Fourth District, Division Two, held that a section 473(b) motion for discretionary relief based on excusable neglect was not a prohibited motion seeking to reconsider an earlier order denying attorney fees under section 1008(a) because it “did not seek to ‘modify, amend, or revoke’ the order denying attorney fees.” Jd. at 1419-20. Rather, that motion “accepted that the order denying attorney fees was correct when made;it rested on a different legal theory, invoked a different statute, and relied on different and additional facts.” Jd. at 1420. Furthermore, section 1008(b) “did not apply, because the fee motion and the motion for relief under section 473 did not seek ‘the same order.’ ” Id. Finally, the court said, “to the extent that section 473 conflicts with section 1008, section 473 must prevail.” Jd. The court explained that even though Standard Microsystems was limited to section 473(b)’s mandatory provision, its “reasoning also applies to the discretionary provisions of section 473, subdivision (b).” Jd. (ital. - 26 - orig.). According to the court, section 473, in both its mandatory and discretionary provisions, “is remedial and thus is to be construed liberally, whereas section 1008 inflicts a forfeiture and thus is to be construed narrowly,” and “section 473 is specific, whereas section 1008 is general.” Id.3 Like Standard Microsystems, Ron Burns Construction did not hold that “any renewal motion claimed to be remedial” defeats section 1008(b). Rather, it involved a motion based on a remedial statute whose policy—to ensure that cases are tried on the merits— should prevail over a statute that effects a procedural forfeiture. Nothing in Ron Burns Construction suggests that a remedial “motion” could defeat section 1008(b) in every instance. Finally, as noted, public policy favors Standard Microsystems over the Court of Appeal here. Section 473(b) favorslitigants over courts, while section 1008(b) favors courts overlitigants. Although section 1008(b)’s policy is strong, section 473(b)’s policy is stronger, since “[t]he courts exist for litigants. Litigants do notexist for courts.” Neary v. Regents of University of California, 3 Cal.4th 273, 280 (1992). Asa result, a statute that requires that a litigant have his or her day in court and that saves the system and the 3 The question whether Ron Burns Construction is correct in holding that section 473(b)’s discretionary provision prevails over section 1008(b) is not implicated here. This case involves only section 473(b)’s mandatory provision. 27 - litigant from a second lawsuit for legal malpractice should prevail over anotherstatute that seeks to deter repetitive motions. C. In Erroneously Construing The Interplay Between Sections 473(b) And 1008(b), The Court Of Appeal Erroneously Reversed The Trial Court’s Order While an appellate court generally reviews de novo an order granting mandatory relief for default under section 473(b) based on attorney fault, to the extent the order resolves disputed facts, review is for substantial evidence. Carmel, 175 Cal.App.4th at 399. Review here shows the trial court correctly granted defendants mandatory relief from the defaults and the default judgment. As noted, section 473(b) requires the trial court to grantrelief from default based on attorney fault “whenever an application for relief [1] is made no more than six months after entry of judgment, [2] is in proper form, and [3] is accompanied by an attorney’s sworn 99 affidavit attesting to his or her ... neglect.” The only exception isif the “court finds that the default ... was not in fact caused by the attorney’s ... neglect.”4 4 The courts of appeal are divided over whether, under section 473(b)’s mandatory provision, the attorney’s fault must be the “sole” or only “a” cause of the default. As Gutierrez v. G & M Oil Company, Inc., 184 Cal.App.4th 551, 557-58 (2010) states, some courts restrict mandatory relief “to cases where the party against -whom the judgmentis taken is ‘totally innocent of any wrongdoing and the attorney wasthe sole cause of the default ..... (E.g., Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1248, original italics.) (fn. continued on next page) _ 28 - On December 16, 2011, eight days after entry of the judgment in question, defendants filed their first motion for mandatory relief from default based on Gibalevich’s fault. 1AA/178-80. The motion was in proper form, 1AA/180-88, and was accompanied by a declaration in which Gibalevich admitted that his “excusable neglect resulted in the entry of the defaults and default judgments [sic],” 1AA/186, albeit without mentioning the search warrant that he would discuss in his second motion. On January 12, 2012, the trial court denied that motion, stating that “[t]he Gibalevich declaration is not credible, in light of the showing made byplaintiff [that any neglect was inexcusable], and it is entirely too general. It does not show attorney Gibalevich is solely at fault in not filing a timely responsive pleading. (fn. continued from previous page) [{] By contrast, other [courts] have indicated that the provision is available to clients who may be at some fault in allowing the ... default, just as long as the client is not guilty of intentional misconduct in contributing to the adverse result. (E.g., SJP Limited Partnership v. City ofLos Angeles (2006) 136 Cal.App.4th 511, 520 ... [because ‘the evidence does not support’ a ‘finding of any intentional misconduct on’ on the client's part, ‘we find that the trial court erred in not granting’ the client ‘mandatory relief from dismissal’]; Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 932 [while client’s mistakes ‘were an additional cause in fact of the entry of default,’ since those mistakes were not intentional, relief wasproperly granted].)” This case does not implicate this conflict. The trial court found on substantial evidence that “no part of the fault” was attributable to defendants. 3AA/555; see post, at 31. -29 - Moreover, attorney Gibalevich tries to have it both ways: see ... his declaration, which claims he has demonstrated ‘excusable neglect.’ He has not demonstrated excusable neglect.” 2AA/340. The Court of Appeal concluded that this order was correct. (Opn. 14) There are, however, compelling reasons to question that conclusion.5 Ultimately, however, it does not matter. That is because defendants filed another motion, which the trial court properly granted, for mandatory relief from default under section 473(b) based on attorney fault. They filed that motion on January 18, 5 The Court of Appeal erred in reviewing the order for abuse of discretion (id.), when de novo review applies to orders denying mandatory relief from default based on attorney fault. Carmel, 175 Cal.App.4th at 399. The Court of Appeal also erred on the merits. It stated that, to establish entitlement to mandatory relief based on attorney fault, a “party must submit an affidavit from the attorney containing a straightforward admission of fault,” and that Gibalevich’s declaration “did not meet that test.” (Opn. 14) Here, however, Gibalevich expressly admitted his “neglect.” 1AA/186. That he happened to characterize his “neglect” as “excusable” did not make his admission of fault any less “straightforward.” After all, an attorney need only “attest[]” to his own “neglect,” § 473(b), whether excusable or inexcusable, see, e.g., Metropolitan Service Corp., 31 Cal.App.4th at 1487, to trigger the client’s entitlement to mandatory relief. Nor was the Court of Appeal’s reliance on State Farm Fire & Casualty Co. v. Pietak, 90 Cal.App.4th 600 (2001) proper. (Opn. 14) There, an attorney executed two declarations, neither of which contained any “admission of fault” and submitted a legal memorandum expressly denying any “neglect on his part.” Id. at 609. - 30 - 2012, still well within the six-month period after judgment. 1AA/178-79; 2AA/342; 3AA/56. It was in proper form, included a proposed answer to the complaint, and was accompanied by a declaration in which Gibalevich attested to his fault. This time, Gibalevich recounted extensive facts about the execution of the search warrant at his office and about his reaction to the warrant’s execution and its consequences for both him and his practice. 2AA/342-57. Gibalevich admitted that his “neglect resulted in the entry of the defaults and default judgments [sic],” but did not characterize his neglect as “excusable.” 2AA/353. The motion was also accompanied by declarations by Akselrud, Gibalevich’s sole associate in the period following the search warrant’s execution, and Shkolnikov, the attorney Gibalevich retained to represent him with respect to the warrant’s execution and its consequences. Akselrud and Shkolnikov confirmed the “search warrant” facts that Gibalevich’s declaration had recounted. 2AA/354-57. Subsequently, Dr. Fersht filed a declaration. Dr. Fersht, a man of advanced age whose sole means of support washis savings, pension, and social security, is married to Gibalevich’s mother, and a $1.7 million judgment would deprive Dr. Fersht of any means to support himself and Gibalevich’s mother. 1AA/178-79; 2AA/350, 370. In his declaration, Dr. Fersht stated: -31- I did not know of [Gibalevich’s] issues until late January of 2012.... [{] It is important to state that I have never advised, counseled conspired, contemplated, ordered, suggested or even thought of not filing a responsive pleading in this case timely. I never directed anyone, especially Mr. Gibalevich, to avoid filing an answer in this matter. [§] I would never contemplate or agree to allow Even Zohar to take my default and default judgement[sic]. I always believed that I am right and my cause is just. I want my day in Court and would not do anything to jeopardize an opportunity to prove my position. 3AA/549. On March 2, 2012, although it repeated and ratcheted upits criticism of Gibalevich, the trial court nevertheless granted the motion. 3AA/554-55. It concluded that, under Standard Microsystems, section 473(b) prevails over section 1008(b), and stated that “the legislature has determined that even in cases involving conduct such as that demonstrated by attorney Gibalevich, where no part of the fault is shown to be attributable to the defendant clients, relief is mandatory.” 3AA/555. It then directed the filing of the proposed answer and ordered Gibalevich to pay EZ some $34,000 in attorney’s fees and costs incurred in obtaining the defaults and the default judgment and in resisting the attempts to vacate them. Jd. _ 32 - Ample evidence supports thetrial court’s finding that “no part of the fault” was “attributable to” defendants. Indeed, Dr. Fersht’s declaration alone constitutes substantial evidence in that regard, since it would have been irrational for him to do anything to cause the default and reduce himself to penury in his old age. Likewise, there was no evidence that Gibalevich caused the default through some strategic decision or deliberate tactic. As Gibalevich stated in his declaration, to have done so would be “committing familial suicide,” impoverishing both his mother and step-father Dr. Fersht. The Court of Appeal’s sole ground for reversing the order was that section 1008(b) governed defendants’ second motion for mandatory relief rather than section 473(b). According to the Court of Appeal, defendants needed to submit an affidavit showing “new or different” facts and a “satisfactory explanation” for failing to produce those facts earlier. Because he failed to do so, the trial court’s grant of the section 473(b) motion was reversible error. (Opn.19-21) The Court of Appeal’s reasoning and conclusion all flow from its legally erroneous premise that defendants needed to comply with section 1008(b) to obtain mandatory relief from default. As noted, that premise is unsound. The trial court was therefore correct in granting the second motion based on Standard Microsystems, and the Court of Appeal’s reversal cannotstand. _ 33 - V. CONCLUSION The conflict between Standard Microsystems and the Court of Appeal’s published disagreement with that decision leaves the law in direct and irreconcilable conflict, leaving trial courts without clear direction whether a party may obtain relief from a default or default judgment under section 473(b)’s mandatory provision if the party previously but unsuccessfully sought section 473(b) relief. Because the conflict warrants this Court’s plenary attention and Standard Microsystems correctly resolves the conflict between sections 473(b) and 1008(b), this Court should grant review and reverse the Court of Appeal’s judgment. DATED: May 17, 2013. GIBALEVICH AND ASSOCIATES JAMESS. LINK REED $MITH LLp By: [wokdol Paul D. Fogel/ Attorneys for Defendants and Respondents Bellaire Townhouses, LLC, and Samuel Fersht, Individually and as Trustee of the Fersht Family Living Trust _ 34 - WORD COUNT CERTIFICATE This Petition for Review contains 7,570 words (including footnotes, but excluding cover, tables, the signature block, andthis certificate). In so stating, I have relied on the word count of Microsoft Office Word 2010, the computer program used to prepare the petition. Executed on May 17, 2013, at San Francisco, California. [leh yet v Paul D. Fogel - 35 - Filed 4/10/13 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATEDISTRICT DIVISION FOUR EVEN ZOHAR CONSTRUCTION & REMODELING,INC., Plaintiff and Appellant, V. BELLAIRE TOWNHOUSES, LLCet al., Defendants and Respondents. B239928 (Los Angeles County Super. Ct. No. BC458347) APPEALfrom an order of the Superior Court of Los Angeles County, Ralph W. Dau, Judge. Reversed. Daniel B. Harris for Plaintiff and Appellant. Gibalevich & Associates and Daniel Andrew Gibalevich; James S. Link for Defendants and Respondents. INTRODUCTION Plaintiff Even Zohar Construction & Remodeling,Inc. sued Bellaire Townhouses, LLC and Samuel N.Fersht, individually and as trustee of the Fersht Family Living Trust (collectively defendants), in a dispute regarding development and construction of a condominium project. After the trial court denied defendants’ motion to compelarbitration, defendants failed to file a responsive pleadingto plaintiff's complaint. Pursuantto plaintiffs requests, the trial court ultimately entered a $1.7 million default judgment against defendants. Citing section 473, subdivision (b),’ defendants moved for mandatory relief, relying upon an affidavit of fault executed by their attorney. Thetrial court denied the motion, finding the attorney affidavit “not credible” and “too general.” Several weekslater, defendants filed a motion to renew their request for relief, supported by a more detailed attorney affidavit of fault. Plaintiff opposed the motion on multiple grounds, including defendants’ failure to satisfactorily explain why they had not presented the evidence contained in the more detailed affidavit in their first motion forrelief. On several separate occasions,thetrial court stated that it did not find the attorney’s second affidavit credible and that defendants had failed to meet the foundational requirements for a motion to renew found in section 1008, subdivision (b). Nonetheless, the trial court felt bound by Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4th 868 (Standard Microsystems), a decision that held that section 1008, subdivision (b) does not apply to a renewed section 473, subdivision (b) motion for mandatory relief based upon an affidavit of attorney fault. As a result, thetrial court granted defendants’ motion andset aside the defaults and default judgment. I All statutory references are to the Code of Civil Procedure. Wereverse. First, we find that the trial court correctly concluded that defendants did notsatisfactorily explain their failure to present earlier the evidence proffered in their attorney’s secondaffidavit of fault. Second, we decline to follow Standard Microsystems. Its conclusion that section 1008’s requirements do not apply to a renewed motion for mandatory relief from default based upon an affidavit of attorney fault ignores section 1008’s clear and unambiguous language that it applies to all renewal motions and underminesthe Legislature’s goalto limit repetitive motions based uponfacts that, with the exercise of due diligence, could have been but werenot presented at the first hearing. We therefore concludethat the trial court lacked jurisdiction to consider the renewed motion. Onthat basis, wereverse anddirect thetrial court to reinstate the defaults and default judgment. FACTUAL AND PROCEDURAL BACKGROUND 1. The Lawsuit and Entry ofthe Default Judgment In March 2011, plaintiff filed and served its lawsuit. In May 2011, defendants filed a petition to compelarbitration. On August 29, 2011, the trial court denied the petition to compel arbitration. On August 31, 2011, plaintiff properly served defendants by mail with notice of entry of that order. As result, defendants had until September 20, 2011 to respond to plaintiff's complaint. (§§ 1281.7, 1013, subd. (a).) Defendants did not file any responsive pleading. On September23, 2011, plaintiff notified defendants’ attorney Daniel Andrew Gibalevich (Gibalevich) by email and FAX that it would request entry of default the following week unless a responsive pleading was filed immediately. No pleading was forthcoming. On September29, 2011 and October 4, 2011, at plaintiff's requests, the clerk of the superior court entered defendants’ defaults. 3 On November22, 2011, plaintiff moved for entry of a default judgment. On December8, 2011, the trial court, after conducting a prove-up hearing, entered a $1,701,116.70 default judgment(plus interest) against defendants. 2. Defendants’ First Motionfor Relief On December 16, 2011, defendants movedfor relief. Their pleadingis entitled “Notice of Motion for Mandatory Relief Under C.C.P. § 473 to Vacate Defaults and Default Judgments.” Notwithstanding the reference in the motion’s caption to mandatory relief, the body of the motion argued that Gibalevich had committed both excusable neglect and inexcusable neglect. Gibalevich’s declaration, offered in support of the motion, also improperly conflated the two concepts. He averred: “3. Beginning the end of August and throughthefirst part of Novemberof2011, I had to spend substantial amounts of time away from the office. I had to attend to certain personalissues that required my undivided attention. I believed that I had sufficient staff to assure competent handling ofclientfiles. My associates were instructed to notify me immediately of issues that would require my personal attention. /t appears that my stafffailed to maintainthisfile in accordance with thisfirm’s policies andprocedures. “4. Due to myfrequent absences, Ifailed to file and serve the responsive pleading. Since the responsive pleading was neverfiled or served, defaults were taken against the Defendants. Had filed the responsive pleading on time,prior to defaults being taken, the defaults and possible default judgments would have been avoided. Jt is clear that my mistake and excusable neglect resulted in the entry ofdefaults and defaultjudgments against the Defendants.” (Italics added.) Plaintiff opposed the defense requestfor relief. Essentially, plaintiff urged that Gibalevich wasnotcredible to the extent that his declaration suggested that he was unawareofthe deadlineto file a responsive pleading. Plaintiff submitted 4 multiple documents (court orders, emails, FAXes) to establish: (1) Gibalevich had been aware that his clients’ response to the complaint was due by September 20; and (2) when defendantsfailed to file a pleading by September 20,plaintiff informed Gibalevich thatit intended to request entry of a default unless the deficiency was cured immediately. Further, plaintiff noted that Gibalevich’s claim of inattentiveness was not credible given that his mother is married to defendant Fersht. Plaintiff opined that the defaults “were part of a concerted plan in which [defendants] engaged with Mr. Gibalevich to delay this matter and drive up the attorney’s fees and costs for plaintiff.” In addition, a declaration from Even Zohar, plaintiffs sole owner, impeached Gibalevich’s claim that, during the relevant time period, he had spent substantial time away from his law practice. Zohar averred that during his “numerous communications. . . in the fall of 2011,” defendant Fersht “repeatedly told [him] that during this period that Mr. Gibalevich was very successful, busy in his law practice and frequently in court.” On January 9, 2012,the trial court conducted a hearing on the motion. It noted that while the motion was predicated upon the mandatory relief section of section 473, Gibalevich’s declaration “fuzzes up the issue by referringto his mistake and excusable neglect in paragraph 4. [{] ... As far as the mandatory relief aspect, it’s entirely too vague and conclusory.” In regard to the language about excusable neglect in his declaration, Gibalevich told the court: “[T]hat was a mistake in the language, because there was no intent on my behalf to ask for any kind of discretionary relief, it was always under mandatory relief.” Although Gibalevich askedif he could file “an additional declaration outlining the extent of the personal problems [he] was having and what mandated [his] absence .. . from the office and [his] failure to follow up on this 5 matter,” he madeno offer of proof as to what that declaration would aver. The court rejected Gibalevich’s request, stating it would rule upon the motion as submitted. Thetrial court denied the motion. Its order explains: ‘Defendants .. . have moved for mandatory relief under Code of Civil Procedure section 473. “The motion is denied. The Gibalevich declaration is not credible,in light of the showing madebyplaintiff, andit is entirely too general. It does not show attorney Gibalevich is solely at fault in notfiling a timely responsive pleading. Moreover, attorney Gibalevichtries to have it both ways: see paragraph 4 ofhis declaration, which claims he has demonstrated ‘excusable neglect.’ Hehas not demonstrated excusable neglect.” 3. Defendants "Second Motionfor Relief On January 18, 2012, defendantsfiled their second motion, entitled, as was their earlier unsuccessful motion, “Notice of Motion for Mandatory Relief under C.C.P. § 473 to Vacate Defaults and Default Judgments.” The motion contained no referenceto the statutory provision governing renewals of previously denied motions: section 1008, subdivision (b). Instead, the motion simply explained that during the hearing onthe first motion,“the [trial] Court made an observation that although in his motion, defense counsel was requesting mandatory relief under C.C.P. section 473(b), defense counsel’s declaration wasnotsufficiently clear and made contentions underthe discretionary portion of section 473(b). Despite [defense] counsel’s argument, the Court denied the motion. [{] In order to address Court’s concerns regarding the perceived generality of defense counsel’s declaration, and to avoid harm to the defendants,at the hands oftheir attorney, this motion follows.” To support the claim for mandatory relief, defendants offered another declaration from Gibalevich in which he averred the following: “On August 25, 2011, investigators with the Los Angeles District Attorney’s office served [a] search warrant.. . at my office .... The investigation focused on medical providers and not on me or my practice.... [O]ne of my associates, Mr. Savransky, resigned his position right after the search. That left me and Ms. Gina Akselrud as [the] only attorneys [in my office]... . “In my effort to secure the return of myclient files, I engaged Mr. Shkolnikov, a criminal defense attorney. I volunteered to assist him in his research and drafting efforts. . . “_... I spent all ofmy time on efforts to return my client’s files. | researched and wrote many drafts of the motions that were filed. This consumed me. I was working onthis mostofthe day, every day. When I wasn’t in front of the computer, I thought of nothingelse. “I began to obsess over my reputation and the disclosures that I had to make to Judges and opposing counselalike [about the search]. ... [have to confess that thisfeeling ofembarrassmentis the reason why Ifailed to set out thesefacts in the declaration previouslyfiled. 1 will never forget that day or the hell that followed. _.. I did experience a period oftime, from middle ofSeptember through October of2011, where I stayed awayfrom the office, for days ata time. ... | was ashamed and embarrassed. I was embarrassed in front of my employees, opposing counsel and judges that I had to face. This feeling of embarrassmentis still with me. “Due to myfrequent absences, my state ofmind and obsession with getting my clientfiles back, I neglected this matter. Ifailed to enter a responsive pleading and did not respondto [plaintiff's] emails notifying me ofthe default. Since the responsive pleading was never entered, defaults and default judgments were taken against myclients, the Defendants. “HadI filed the responsive pleading on time, prior to defaults being taken, the defaults and default judgments would have been 7 avoided. It is clear that my mistake, inadvertence and neglect resulted in the entry ofdefaults and defaultjudgments against my clients, the Defendants herein.” (Italics and boldface added.) Defendants’ motion included two additional declarations. Thefirst declaration was from Akselrud, Gibalevich’s associate. She confirmed the execution of the search warrant on August 25, 2011 and Savransky’s resignation the following day. In addition, Akselrud averred that Gibalevich was “frequently absent” from the office from the end of August through November 2011 and that “approximately in the middle of September of 2011, [she] noticed that the stress of the situation was taking its toll on Mr. Gibalevich. ... He stayed away from theoffice preferring to work at home. Jt seemedthat he only worked on getting his clientfiles back. All else took a back seat. He beganto obsess overit. He didn’t answer his phone nor respond to email.” (Italics added.) However, the next portion of Akselrud’s declaration contradicted her claim (as well as that made by Gibalevich in his declaration) that Gibalevich worked only on the search watrant issue. She explained: “Because so manyofthe files taken [when the search warrant was executed] wereactivelitigation files, Mr. Gibalevich and [, had to make many appearances, in the civil matters, to continue hearings andtrials. Much ofmy andhis time was spent in attempts to recreate files and throw ourselves on the sword by explaining what transpired to clients, opposing counsel andjudges.” (Italics added.) The second declaration was from Shkolnikov, the attorney representing Gibalevich “in a matter of In Re Search Warrant.” Shkolnikov averred, as had Akselrud, that Gibalevich was“frequently absent” from his office through November 2011. In addition, Shkolnikov made the same contradictory averments that Akselrud and Gibalevich had made as to what Gibalevich did and did not do. On the one hand, Shkolnikov declared that Gibalevich “devotedall of his time and effort to getting the files and his property back”but, on the other hand, Shkolnikov declared that Gibalevich and Akselrud “had to make all appearances to continue hearingsand trials,” many “on shortened notice or on ex parte basis.” On January 30, 2012, defendants filed an ex parte application seeking an orderto stay plaintiff's execution on its $1.7 million default judgment pending a ruling on its renewed motion forrelief. The motion’s caption’ as well as a declaration from Gibalevich® acknowledged,forthe first time, that the second motion for relief was brought pursuant to section 1008, subdivision (b).4 On January 31, 2012, the court conducted a hearing on the defense application. It granted the application to stay execution on the judgment and continued the matter for a hearing on the merits of the renewed motion forrelief. The motionis entitled, in pertinent part: “Ex Parte Application for an Order on a Renewed Motion (C.C.P. 1008(b)) for MandatoryIRelief under C.C.P. 473(b) Vacating Defaults and Default Judgments.” 3 Gibalevich’s declaration averred, in part: “On January 9, 2012, a motion for mandatoryrelief under C.C.P. section 473(b) came regularly on calendarbeforethis Court. The Court found that my declaration wasnot credible, in light of the showing madebythe plaintiff, and that my declaration was too general. The differentfacts, in accordance with C.C.P. section 1008(b), set forth below deal with the circumstances surrounding myfailure to file a responsive pleading in this matter.” (Italics added.) The remainderof Gibalevich’ s declaration: (1) repeated the averments foundin his declaration filed earlier in support of the second motionforrelief and (2) included additional avermentsrelating to the defense requestto stay plaintiffs execution on the judgment. 4 At the hearing conducted on the ex parte motion, Gibalevich reiterated that the second request for relief complied with section 1008, subdivision (b). He stated: “Asfar as the procedural issues with this motion, I’ve complied with [section] 1008 (b)in all respects. Wenotified the court of the previous motion made. Weprovided the court with the previous order. I set forth what additional facts we’re providing in my declaration, which fully complies with the jurisdictional requirements of [section] 1008 (b).” In the course of the hearing, the court stated that the facts contained in Gibalevich’s second declaration “are not new facts.” “You could have presented all of that with your original [motion].” The court further indicated that it did not find Gibalevich’s new declaration credible. The court told Gibalevich: “[Y]ou are presenting an entirely different story with this application than you have presented to the court originally. [§] ... [In yourfirst declaration,] [y]ou tried to blameit on a miscalendaring when the evidenceis that your office received multiple, multiple notices before the defaults were enteredin all different kinds of ways. [4] And, frankly, your story about being obsessed with this search warrantforthe entire period oftime isjust not credible. You originally told the court you had to be out of the office for substantial periods of time. Now you’re saying you’re conducting all kinds of research on your computerin your office. [§]] You’re not credible, Mr. Gibalevich.” (Italics added.) Gibalevich responded: “[D]uring the original hearing [on the first motion], Your Honor,I did not blameit on a miscalendaring.... [§] ... Atno time am I placing blame on anybodyelse.” The court replied: “That’s directly contrary to your [first] declaration.” Plaintiff's opposition to the renewed motion.madeseveral arguments. First, it argued that defendants had failed to comply with section 1008, subdivision (b) becausethey had failed to demonstrate why the new information (Gibalevich’s stress caused by the execution of the search warrant) had not been presented in the first motion. Next, it argued that Gibalevich’s latest explanation wasnotcredible. Lastly, it claimed that the decision notto file a responsive pleadingto the complaint “was a deliberate choice [defendants and Gibalevich] made together as _ part and parcel of their continuing gambit of delay.” Defendants’ reply to plaintiff's opposition cited, for the first time, Standard Microsystems, supra, 179 Cal.App.4th 868, a case decided more than two years earlier. Essentially, Standard Microsystems held that section 1008, subdivision (b) 10 does not apply to renewed motions for mandatory relief brought pursuantto section 473 subdivision (b). (We will discuss the opinion in detail when evaluating plaintiffs contention.) Defendants’ reply also included a declaration from Fersht denying any complicity in Gibalevich’s failure to file a responsive pleading.® At the hearing on the renewed motion, the trial court again expressedits disbelief of Gibalevich.® Gibalevich argued that the “only difference between[his first and second] declarations . . . was that [he] provided additional facts to [the court] setting the background as to why [he] was unavailable and why [he] did not file it.” Gibalevich claimed that “[t]he story never changed.” Thetrial court responded: “It changed every time you presented it, Mr. Gibalevich. [{]] ... You do not have a footing in reality, sir.” As to whether defendants were complicit in Gibalevich’s failure to respond to the complaint, plaintiff argued the court should find that Fersht’s declaration denying any such complicity not to be credible becauseit had not been filed earlier. That is, plaintiff suggested that were Fershttelling the truth, defendants would have proffered his declaration at the outset of the section 473 litigation. In regard to its theory that defendants were involved in the decision to let the matter 5 Fersht averred: “It is important to state that I have never advised, counseled, conspired, contemplated, ordered, suggested or even thoughtof notfiling a responsive pleading in this case timely. I never directed anyone, especially Mr. Gibalevich, to avoid filing an answerin this matter. “T would never contemplate or agree to allow Even Zohar to take my default and default judgment. I always believed and continue to believe that I am right and my causeis just. I want my day in Court and would not do anything to jeopardize an opportunity to prove myposition.” 6 Thetrial court’s tentative ruling indicated that it lacked jurisdiction to consider the renewal motion because, as the judge explainedlater at the hearing, “[t]here’s been a failure to make a 1008 (b) proper showing.” 11 go to default, plaintiff relied upon defendants’ actions and statements, from both before and after the complaint wasfiled, that plaintiff believed indicated a defense intent to thwart any effort by plaintiff to recover any money from defendants. In an order filed after the hearing,the trial court granted the motion. In relevant part, the order explains: “Before the court is the second attempt by Daniel A. Gibalevich, attorney at law, to obtain vacation ofhis clients’ default (entered September 29, 2011) and default judgment(filed December 8, 2011). “Attorney Gibalevich first blamed the default and default judgmententered against defendants . . . on the lawyers he employed in his office. ... In this first motion, attorney Gibalevich argued both that he was entitled to mandatory relief on the groundofattorney fault and on the ground of excusable neglect on his part. “Whenhelost the first motion, attorney Gibalevich filed another motion. The second motion fails to comply with the requirements ofsection 1008(b). In this motion, attorney Gibalevich changedhis story and blamedthe default and defaultjudgmenton his having become obsessed with the consequences ofa search warrant executed on his office by the Los Angeles County District Attorney. (Neither the search warrant nor its consequences concermedthe files of the defendants in this action.) .... “The associate [Akselrud] in Mr. Gibalevich’s office did not support the claim in attorney Gibalevich’s December 15, 2011 declaration that she failed to maintain the [case] file or notify Mr. Gibalevich of the entry of default and default judgment against [defendants]. “[D]efendants cite Standard Microsystems Corp. v. Winbond Electronics Corp., 179 Cal.App.4th 868, 893-894, which holdsthat insofar as any conflict actually exists between section 1008 and section 473(b), it must be resolved in favor of section 473(b). Plaintiff argues that this case is an outlier, but the court does not agree. The decision seems correct, andthis court is boundtofollow 12 it. The legislature has determined that even in cases involving conduct such as that demonstrated by attorney Gibalevich, where no part ofthe fault is shownto be attributable to the defendantclients, relief is mandatory.” (Italics added.) The court vacated the defaults and default judgment, directed the clerk to file defendants’ proposed answer, and ordered Gibalevich to payto plaintiff the attorney fees ($30,940) and costs ($2,961.62) it had incurred “in connection with the default[s] and default judgment and defendants’ attempts to have [them] vacated.” This appeal by plaintiff follows. DISCUSSION Plaintiff contends: “Defendants’ failure to comply with Section 1008 deprived the lower court ofjurisdiction to reach the merits of their renewed Section 473(b) motion as a matter of law. (Cal.Civ.Pro. § 1008(e).)” We agree. Section 473, subdivision (b) provides for mandatory relief from default if the moving party’s request is supported by “an attorney’s sworn affidavit attesting to his... mistake, inadvertence, surprise, or neglect .. . unless the court finds that the default . .. was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (§ 473, subd. (b).) The purpose of the mandatory relief provision is “‘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.’ [Citation.] Thus, the Legislature created a narrow exception to the discretionary relief provision for default judgments. ... [Citation.]” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.) “The range of attorney conduct for which relief can be granted in the mandatory provision is broader than that in the discretionary provision, and includes inexcusable neglect.” (Leaderv. 13 Health Industries ofAmerica, Inc. (2001) 89 Cal.App.4th 603, 616.) Butif the 3909default occurred as a result of “an ‘intentional strategic decision’” by defense counsel, relief is not available. (Jerry’s Shell v. Equilon Enterprises, LLC (2005) 134 Cal.App.4th 1058, 1073.) Here, the trial court denied defendants’ first motion for relief becauseit found that Gibalevich’s declaration was far too conclusory to require the grant of relief based upon a theory of attorney fault. This ruling was not an abuse of discretion. In order to obtain relief, the moving party must submit an affidavit from the attorney containing a straightforward admission of fault. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 609-610.) Gibalevich’s first declaration did not meetthattest. Defendants’ second motion proffered a declaration from Gibalevich that purported to explain his fault as an inattentiveness caused by an obsessivereaction to the execution of a search warrantat his office. But, as Gibalevich later acknowledged, because the motion sought to renew the previously denied motion, the motion was governedby section 1008, subdivision (b).’ “Section 1008 is designed to conserve the court’s resources by constraining litigants who would attempt to bring the same motion over and over.” (Darling, Hall & Rae v. Kritt (1999) 75 Cal.App.4th 1148, 1157.) To that end, subdivision (b) of section 1008, as amendedin 1992,* provides, in relevant part: “A party who originally made an application for an order which wasrefused . .. may make a subsequent application for the same order upon new ordifferent facts [or] 7 Defendants’ reply to plaintiffs opposition to their second motion conceded: “[D]efendants herein are making a motion for an order that was exactly the sameas the one that was requested in the first motion to vacate the default and default judgment.” 8 Statutes of 1992, chapter 460, section 4, pages 1832-1833. 14 circumstances .. . in which caseit shall be shownbyaffidavit .. . what new or different facts [or] circumstances . . . are claimed to be shown.” Case law has included the additional requirement that the party seeking to renew a previously denied motion based upon new ordifferent facts “must provide a satisfactory explanation forthe failure to produce the evidence at an earlier time.” (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212; see also California Correctional Peace Officers Assn. v. Virga (2010) 181 Cal-App.4th 30, 46-47,fn. 15, and 6 Witkin, Cal. Procedure (Sth ed. 2008) Proceedings Without Trial, § 47, pp. 470-471.) Thetrial court’s finding that the moving party did not establish the predicate facts for a section 1008 motion is reviewed for abuse ofdiscretion. (Lucas v. Santa Maria Public Airport Dist. (1995) 39 Cal.App.4th 1017, 1027- 1028.) Subdivision (e) was addedto section 1008 in 1992 at the same time subdivision (b) was amended. (Stats. 1992, ch. 460, § 4, pp. 1832-1833.) Subdivision (e) provides: “This section specifies the court’s jurisdiction with regard to... renewals of previous motions, and applies to all applications. . . for the renewalofa previous motion. ... No application . . . for the renewalofa previous motion may be considered by any judge or court unless made according to this section.” (Italics added.) If the predicate requirements set forth in subdivision (b) are not met,the trial court lacks jurisdiction to consider the renewal motion. (See, e.g., Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 383- 391.) These 1992 amendments were intendedto clarify that no renewal motion can be heard “unless the motion is based on new or different facts, circumstances, or law” because the Legislature sought “to reduce the numberof . . . renewals of previous motions heard by judgesin this state.” (Stats. 1992, ch. 460, § 1.) 15 In this instance, Gibalevich’s declaration failed to adequately explain why he had not included the facts about the search warrant execution and his response thereto in his first declaration. These events took place from Septemberto November 2011. Information about them was obviously in Gibalevich’s possession whenhefiled the first motion in December 2011 andthe relevance of the events (if true) was patent. Gibalevich’s only explanation for not having presented this information earlier was that he was embarrassed. Thetrial court did not find this explanation credible. That finding—afinding defendants do not contest—is binding upon us. (Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622-623.) Given the inadequacy of the defense showing,thetrial court did not abuseits discretion in finding that defendants had failed to establish the predicates for relief under section 1008, subdivision (b). However,rather than denying the renewed motion,thetrial court proceeded to address the motion on its merits and grantrelief, finding it was bound by Standard Microsystems. The relevant facts in Standard Microsystems, supra, 179 Cal.App.4th 868 are the following. Attorney A advised the defendants that they did not have to answerthe plaintiff's complaint because he believed that the plaintiffs attempt to serve them by mail was ineffective. (/d. at pp. 874-876.) Defendants followed that advice and no responsive pleading wasfiled. (/d. at p. 880.) As a result, plaintiff took their default. (/d. at p. 876.) The defendants, still represented by Attorney A, then filed a motion for discretionary relief under section 473, subdivision (b) to set aside the default. The motion claimed excusable neglect and mistake of law (the defendants’ erroneousbelief that the service by mail had been ineffective). (/d. at pp. 877-878.) The trial court denied the motion and proceededto enter a default judgment. The defendants discharged Attorney A and hired Attorney B. (/d. at p. 895.) Attorney B movedto set aside the default and the default judgment based upon the mandatoryrelief provision of section 473, subdivision(b). The motion, 16 supported by an affidavit from Attorney A,relied upon the theory that Attorney A’s fault (failure to provide proper legal advice and to take steps to avoid the entry of default) directly led to the default and default judgment. (/d. at p. 880.) The trial court denied the motion,finding, in part, that it was an improper motion for reconsideration. The Court of Appeal reversed the trial court. First, it found that the second motion was not a motion for reconsideration becauseit “rested on an entirely different legal theory, invoked a different statutory ground, andrelied in very substantial part on markedly different facts.” (Standard Microsystems, supra, 179 Cal.App.4th at p. 891.) Next, it stated that it was reluctant to conclude that the second motion was a renewal motion becauseit soughtrelief different from that requested in the first motion (set aside the default and the default judgmentversus movingonly to set aside the default) and relied upon a different theory (mandatory relief relying upon anaffidavit of attorney fault versus discretionary relief based upon a claim of excusable neglect). (/d. at pp. 892-893.) Lastly, it found—and this is the portion of the opinion upon whichthetrial court in this case relied—that even if the second motion was construed to be a renewal motion,to the extent that section 1008 conflicts with section 473, section 473 must prevail because it is a “remedial statute” whereas section 1008 “inflicts a procedural forfeiture.” (/d. at p. 894.) In addition, the court held that section 473, as a more specific statute, must take precedence overthe more general provisions of section 1008. (/d.at p. 895.) For several reasons, we do not find Standard Microsystems persuasive. First, the language of section 1008 is clear and unambiguous. A court must construea statute so as to give effect to the Legislature’s intention. (§ 1859; Landrum v. Superior Court (1981) 30 Cal.3d 1, 12.) In order to do so, we look first to the words of the statute. (Moyers v. Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230.) The statutory language usedis to be givenits usual, ordinary 17 meaning and, wherepossible, significance should be given to every word and phrase. (Ibid.) “The words must be construed in context in light of the nature and obvious purpose of the statute where they appear.” (Decker v. City ofImperial Beach (1989) 209 Cal.App.3d 349, 354.) In that regard, subdivision (e) provides that section 1008’s provisions “appl[y] to all applications . . . for the renewal of a previous motion”andthat “{njo application . . . for the renewal of a previous motion may be considered by any judge or court unless madeaccording to this section.” (§ 1008, subd. (e), italics added.) “‘“If the plain, commonsense meaning ofa statute’s wordsis unambiguous, the plain meaning controls.””” (Catlin v. Superior Court (2011) 51 Cal.4th 300, 304.) “All” and “no” are clear and unambiguous words. “‘AIl’ means everyone or the whole number[citation], and it does not ‘admit of an exception or exclusion not specified’ [citation].” (Stewart Title Co. v. Herbert (1970) 6 Cal.App.3d 957, 962.) “No,” used as an adjective, means “Not any; not one.” (American Heritage Dictionary (1985 2d. ed.), p. 844.) Taken together, the use of “all” and “no”in section 1008 conveys the clear meaning that every renewal motion, without exception and not excluding one for mandatory relief from default based upon an affidavit of attorney fault, is governed by section 1008’s requirements. Unless the moving party meets thosecriteria, the trial court lacks jurisdiction to consider the motion. This conclusion supportsthe legislative goal to impose “a limitation on the parties’ ability to file repetitive motions.” (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1105.) Second, the Legislature authorized section 473, subdivision (b) motions for relief based upon attorney fault through a statutory amendmentenacted in 1988 (Rodrigues v. Superior Court (2005) 127 Cal.App.4th 1027, 1032-1033), four years before the Legislature enacted the relevant amendmentsto section 1008 in 18 1992. The Legislature is deemed to be aware of existing statutes. (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 212.) Had the Legislature intended to exempt renewed motions for mandatory relief based upon attorney fault from the requirements of section 1008, it could have done so through appropriate language in either statute. But it did not. “‘It is . . . againstall settled rules of statutory construction that courts should write into a statute by implication express requirements which the Legislature itself has not seen fit to place in thestatute.’ [Citations.] The court must follow the language usedin a statute and giveit its plain meaning.’” (/n re Rudy L. (1994) 29 Cal.App.4th 1007, 1011.) Third, we disagree with Standard Microsystems ’s conclusionthat sections 473, subdivision (b), and 1008 are in conflict. To the contrary, the statues are complimentary. Section 473, subdivision (b) states the requirements of making a motion for relief from default in the first instance. It says nothing about second or subsequent motions made on the same grounds. That situation is governed by section 1008 for al/ renewed motions of every type, without exception. That a second or subsequent motionforrelief from default based on attorney fault under section 473, subdivision (b) cannot be granted unless the requirements for renewed motionsset forth in section 1008 are met does not meanthatthe statutes are in fatal conflict. That is simply the result of the statutes working together as the Legislature intended. Therefore, the conclusion of Standard Microsystems’ that the purported conflict must be resolved by giving effect to section 473, subdivision (b), as the more specific statute, is incorrect. Fourth, in similar fashion, we are not persuaded by Standard Microsystems’ conclusion that to resolve the purported conflict, section 473 must prevail over section 1008, because the former is a remedial statute whereasthe latter creates a procedural forfeiture. The Legislature’s 1992 amendmentsto section 1008 defined the class ofparties entitled to seek relief in a renewed motion, namely, those who 19 - can show newordifferent facts. Case law has added the requirementthat the moving party show that the evidence could not have been presented previously.’ These mandatory conditions do not work a forfeiture for parties who bring second or successive motions, but rather simply state the conditions under which second or successive motions can be granted, in addition to the specific requirements of section 473, subdivision (b). “[I]f a statute announces a general rule and makes no exception thereto, the courts can make none. [Citation.] A court may notinsert into a statute qualifying provisions not intended by the Legislature and may not rewrite a statute to conform to an assumedlegislative intent not apparent. [Citation.]” (Burnsed v. State Bd. of Control (1987) 189 Cal.App.3d 213, 217.) Finally, we agree with plaintiff that Standard Microsystems’ remedial/forfeiture analysis, if accepted, ““would create a proverbial ‘slippery slope’ and foment even morelitigation concerning what1s in fact ‘remedial.’” As a matter of fact, this process has begun. Ron Burns Construction Co., Inc. v. Moore (2010) 184 Cal.App.4th 1406, 1418-1420, without significant discussion or analysis, applied Standard Microsystems’ reasoning to a section 473 motion for discretionary relief based upon a claim that counsel had committed excusable neglect, holding that “to the extent that section 473 conflicts with section 1008, section 473 must prevail.” (/d. at p. 1420; see also California Correctional Peace Officers Assn. v. Virga, supra, 181 Cal.App.4th at p. 48 [apparently agreeing with Standard Microsystems’ “forfeiture” analysis but declining to apply it to two , Standard Microsystems declined to follow the requirementcreated by case law that the moving party in a section 1008 motion must provide a satisfactory explanation for failing to present the evidence earlier (Standard Microsystems, supra, 179 Cal.App.4th at pp. 895-896) and criticized the concept that the moving party’s failure to comply with section 1008 deprived the trial court ofjurisdiction to rule upon the motion (id. at p. 889). Needless to say, we also disagree with Standard Microsystems on those points. 20 repetitive motions for attorney fees because each motion relied upon a different statute authorizing recovery of attorney fees].) Carried to its logical conclusion, Standard Microsystems’ analysis would exclude from the reach of section 1008 any renewal motion claimedto be remedial, thereby nullifying the plain language of section 1008 that it applies to a// renewal motions and thwarting the Legislature’s intent to limit repetitive motions.”® Forthe reasons stated above, wedecline to follow Standard Microsystems."' Its conclusion underminesthe Legislature’s goal to limit repetitive motions and to provide “an important incentive for parties to efficiently marshall their evidence” in the first instance. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 689.) As explained earlier, the trial court did not abuse its discretion in finding that defendants failed to meet section 1008’s predicate requirements. Based uponthat finding, the trial court should have denied defendants’ renewal motion for lack of "0 Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494 stated: “To hold, under the circumstances presented in this case, that the general relief mechanism provided in section 473 could be used to circumventthe jurisdictional requirements for reconsideration found in section 1008 would underminethe intent of the Legislature as specifically expressed in section 1008, subdivision (e): “No application to reconsider any order... may be considered by any judge or court unless made accordingto this section.’ Therefore, we decline to so hold.” (Cd. at p. 1501.) 1! Defendants also cite Wozniak v. Lucutz (2002) 102 Cal.App.4th 1031 (disapproved on another ground in Le Francois v. Goel, supra, 35 Cal.4th at p. 1107, fn. 5), a pre- Standard Microsystems case, to support thetrial court’s order granting their renewal motion. Wozniak stated: “If the requirementsfor relief under section 473 are met, the viability of relief under section 473 cannot be defeated because the requirements for relief under section 1008 may not also have been met.” (/d. at p. 1043.) The court cited no pertinent authority for its conclusion. In any event, as explained above, we do not agree with it. Further, that holding was rendered in circumstances clearly distinguishable from this case. It did not arise in the context of a renewed motion forrelief under section 473, subdivision (b) but, instead, involved a motion broughtfor the first time under the excusable neglect or surprise provisions of section 473. Second,it did not involve repetitive motions seeking identical relief but adding new facts. 21 jurisdiction. We will direct the trial court to set aside its order granting the motion andto reinstate the defaults and default judgment. DISPOSITION The trial court’s March 2, 2012 orderis reversed and thetrial court is directed to reinstate the previously entered defaults and default judgment. Appellant is to recoverits costs on appeal. CERTIFIED FOR PUBLICATION WILLHITE,J. We concur: EPSTEIN,P. J. SUZUKAWA,J. 22 [IN THE COURTOF APPEALOF THE STATE OF CALIFORNIA SECOND APPELLATEDISTRICT DIVISION 4 April 29, 2013 James S. Link Counselor & Advocate at Law 215 N. Marengo Avenue, 3rd Floor Pasadena, CA 91101 EVEN ZOHAR CONSTRUCTION & REMODELING, INC., Plaintiff and Appellant, Vv. BELLAIRE TOWNHOUSES,LLCetal., Defendants and Respondents. B239928 Los Angeles County No. BC458347 THE COURT: Petition for rehearing is denied. cc: All Counsel File ‘PROOF OFSERVICE Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC,etal. California Supreme Court No. S ; Second Appellate District, Division Four, No. B239928; Los Angeles County Superior Court No. BC458347 I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is REED SMITH LLP, 101 SecondStreet, Suite 1800, San Francisco, California 94105-3659. On May 17, 2013, I served the following document(s) by the methodindicated below: PETITION FOR REVIEW M by placing the document(s)listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at San Francisco, California addressed as set forth below. I am readily familiar with the firm’s practice of collection and processing of correspondence for mailing. Underthat practice, it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if the postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in this Declaration. M by transmitting via email to the party whose email addressis listed below: Daniel B. Harris, Esq. 3450 Sacramento Street, Suite 108 San Francisco, CA 94118 Attorneys for Plaintiff and Appellant Even Zohar Construction & Remodeling,Inc. Tel: 415.994.1727 Fax: 415.723.7411 dbh2007@sbcglobal.net Second Appellate Dist., Division Four California Court of Appeal Second Floor, North Tower 300 South Spring Street Los Angeles, CA 90013-1213 Los Angeles County Superior Court111 North Hill StreetLos Angeles, CA 90012-3014 US_ACTIVE-113067780. 1-EKROLL05/16/2013 9:50 AM ‘T declareunderpenalty ofperjury under thelaws of the State ofCalifornia that the aboveis true and correct. Executed on May 17, 2013, at San Francisco, California. Viera0Aan Myra R. Taylor (J _2- Proof of Service