Opinion
NOT TO BE PUBLISHED
APPEAL from the judgment of the Superior Court of Los Angeles County. No. YD051843, Glenda Veasey, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Nancy Bennett Bunn for Respondent and Appellant.
Robert A. Waddell for Petitioner and Respondent.
GRIMES, J.
SUMMARY
Robin Vargas (wife) appeals the trial court’s denial of her motions to vacate a stipulated judgment, signed by all parties and their counsel, entered in the marital dissolution proceedings commenced by Chris Vargas (husband). Wife also appeals the sanctions order requiring her to pay husband’s counsel $3,000. Wife contends the stipulated judgment included an erroneous division of husband’s California Public Employees’ Retirement System (CalPERS) pension benefits she did not agree to, and its inclusion in the judgment resulted from mistake or excusable neglect. We reject wife’s claim that excusable mistake or neglect led to the signing by all parties and counsel of the stipulated judgment, with the parties’ acknowledgement that their consent was informed and intentional and the proposed judgment was fair and reasonable, and we affirm the judgment.
FACTS
Husband and wife had been married for over 17 years when husband petitioned for divorce on Valentine’s Day in 2007. At a mandatory settlement conference (MSC), the parties agreed to a settlement. Their December 18, 2008 settlement agreement was signed by the parties, wife’s attorney Linda Horner (Horner), and husband’s attorney Patricia Barberis (Barberis). The agreement provided that the parties would retain experts to prepare Qualified Domestic Relations Orders (QDRO’s) for division of the community interest in various retirement accounts. A notice of limited scope representation was later filed and served by Attorney Nancy Bennett Bunn (Bunn) on behalf of wife, giving notice that she was representing wife for the limited purpose of preparing “appropriate joinders and orders to divide community property interest in the [CalPERS] and ICMA-RC Deferred Compensation Plan.”
Husband’s attorney, Barberis, drafted a proposed judgment memorializing the parties’ settlement agreement. Horner suggested some revisions, and the parties corresponded back and forth, before Barberis sent the last draft of the proposed stipulated judgment to Horner on April 20, 2009, with the following cover letter: “Enclosed is the Judgment in the above-referenced matter for your review. If the Judgment meets with your approval, please sign same where indicated and have your client sign.” The proposed stipulated judgment included a term that had not appeared in previous drafts, providing that “[t]he QDRO to be per the PERS Model A separate account format.” CalPERS has several recommended calculation methods for determining the community’s share in a pension, and Model A is one of them. Horner submitted a fully executed copy of the stipulated judgment with this provision to the court, bearing the signatures of both parties, Horner, and Barberis, and the court entered judgment on May 4, 2009.
The stipulated judgment entered by the court contained the following acknowledgement: “I, ROBIN L. VARGAS... have fully and completely read the foregoing document. I understand the terms and conditions of said document, and I do stipulate that the court should sign and cause this Stipulated Judgment to be entered. After due consideration, examination and knowledge of all facts and circumstances, I believe that this document represents a fair and reasonable manner of effectuating the complete compromise, settlement and release of all claims and rights that exist by and between the parties. I request that the court approve and sign this document, because it represents my understanding of the parties’ agreement for the settlement of all matters referred to herein. I confirm that all representations herein stated are true and correct, and that I intend the other patty [sic] and the Court to rely thereon.” The judgment was signed by wife on April 8, 2009, 12 days before Barberis sent the final draft to Horner on April 20, 2009.
Horner signed an acknowledgment providing as follows: “Approved as to form only. I confirm that I have discussed the terms and provisions of this Stipulated Judgment with the Respondent, and I believe she understands them and the legal consequences thereof. This certification shall and does not waive any attorney-client privilege that exists between my client and me.”
On July 1, 2009, wife filed a motion to vacate the May 4, 2009 judgment, contending the inclusion of the Model A provision was in error. Wife argued that when Barberis sent the final draft judgment to her and her counsel, Barberis did not mention the addition of the Model A provision, which had not appeared in Barberis’s previous drafts, and the judgment was executed “accidentally.” Wife’s counsel did not do a line-by-line review of the final proposed judgment because counsel had reviewed the previous drafts and was not alerted to any material changes by husband’s counsel. Wife endorsed the signature page for the stipulated judgment before the Model A language was added, based on her approval of an earlier draft of the agreement, and her lawyer’s representation that only immaterial changes were to be made to the final draft which would be submitted to the court. Wife’s pension counsel Bunn had recommended a ModelB division of the pension benefits, as the Model A calculation was less favorable to wife. Bunn submitted a declaration that she was sole counsel on all pension issues, she was not consulted about the Model A division, and she had not consented to the judgment.
The trial court denied the motion after concluding that “I have real problems with the idea that that would be a mistake or excusable neglect” because both counsel and wife attested they had read and understood the stipulated judgment, even if they had not. The trial court also determined that Bunn’s representation was limited to preparation of QDRO’s and was irrelevant to the motion to set aside the judgment. The trial court further awarded husband sanctions of $3,000 under Family Code section 271.
Wife’s pension counsel Bunn moved for reconsideration of the trial court’s ruling, based on her lack of consent to the judgment. Husband challenged Bunn’s standing to bring the motion and argued the motion otherwise was procedurally defective for being untimely and failing to establish a basis to set aside the judgment. The motion was denied.
DISCUSSION
Code of Civil Procedure section 473, subdivision (b) (hereafter section 473(b)) provides the court with authority to vacate a judgment resulting from the mistake, inadvertence, surprise, or excusable neglect of a party or his attorney. That section provides in pertinent part: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (§ 473(b).) A motion for relief under section 473(b) is addressed to the sound discretion of the trial court, and the trial court’s determination will not be disturbed on appeal absent a clear showing of abuse. (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 897-898.) “The fate of such a motion ‘ “rests almost entirely in the discretion of the court below, and appellate tribunals will rarely interfere, and never unless it clearly appears that there has been a plain abuse of discretion.” ’ ” (Anderson v. Sherman (1981)125 Cal.App.3d 228, 237.)
In this case, wife has not shown a plain abuse of discretion. “Courts do not relieve litigants from the effects of mere carelessness.” (Ray Kizer Constr. Co. v. Young (1968) 257 Cal.App.2d 766, 769.) “Mere neglect or negligence is not a sufficient ground for relief under section 473. On the contrary, the neglect or mistake... must be excusable.” (Cochran v. Linn (1984) 159 Cal.App.3d 245, 252, italics omitted.) The claimed inadvertence, mistake, surprise or neglect of a party’s attorney must also be excusable. “In determining whether the attorney’s mistake or inadvertence was excusable, the court inquires whether a reasonably prudent person might have made the same mistake under the same or similar circumstances. [Citation.]... ‘ “Conduct falling below the professional standard of care... is not therefore excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.” ’ [Citation.]” (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 229.)
Regarding counsel’s supposed negligence or mistake, the trial court was well within its discretion in finding it was inexcusable that counsel did not review the final form of the proposed stipulated judgment prepared by her adversary before signing it and appending the signature page of the client signed several days earlier, especially since counsel also certified she had read the stipulated judgment and explained it to her client. Counsel acknowledged she did not thoroughly read the final draft or discuss it with her client. As for wife, she admitted to signing the signature page of a superseded draft, knowing that further revisions to the proposed judgment were underway. She never read the judgment submitted to the court and gave her attorney permission to append her signature to a final judgment she never read or discussed with her lawyer despite signing an acknowledgement to the contrary. On this record, the trial court’s ruling was well within its discretion.
Wife’s cited cases do not compel a different result. In Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, the Supreme Court affirmed the trial court’s decision to vacate a judgment, finding that the record supported such relief, based on a clerical error in an offer to compromise prepared by a legal assistant. The Zamora court simply acknowledged that the trial court had discretion to make such a determination. (Id. at pp. 258-259.) Here, the trial court acted well within its discretion to determine that the mistake and neglect of wife and her counsel were inexcusable. In Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, the court found that defendant was entitled to relief from a default judgment, where the default resulted from the failure of plaintiff’s counsel to warn defendant of plaintiff’s intention to take a default. (Id. at p. 701.) Here, Barberis requested that Horner review the draft judgment, which she did not do.
We also find no merit in the argument that Bunn’s consent to the stipulated judgment was required. “The attorney of record has the exclusive right to appear in court for his client and neither the party himself nor another attorney should be recognized by the court in the conduct or disposition of the case.” (Epley v. Califro (1958) 49 Cal.2d 849, 854.) Horner was wife’s attorney of record, and Bunn was retained for the limited purpose of preparing “appropriate joinders and orders to divide the community property interest in the [CalPERS] and ICMA-RC Deferred Compensation Plan.” Husband’s attorney was entitled to assume that she could negotiate the terms of the stipulated judgment with wife’s attorney of record and that wife and her attorney would consult pension counsel if they wished to do so before entering the stipulated judgment.
We additionally reject wife’s argument, citing In re Marriage of Gray (2007) 155 Cal.App.4th 504, that the trial court had an affirmative duty to adjudicate the method of division of a retirement account, if the stipulated judgment was not understood by the parties. The court in In re Marriage of Gray found only that the trial court had a duty to effect an equal division of community property, and that the stipulated judgment between the parties did not provide a method of distribution of the proceeds of a retirement account, and retained jurisdiction for the court decide how to distribute the retirement account proceeds. (Id. at p. 523.) Here, the judgment was not unclear; it called for a Model A division. Further, the judgment did not retain jurisdiction for the court to make this determination at a later date.
To the extent wife may be arguing on appeal that she was entitled to mandatory relief under the attorney-fault provisions of section 473(b), she is mistaken, as this relief is available to set aside only a default or dismissal, not a stipulated judgment. (Prieto v. Loyola Marymount University (2005) 132 Cal.App.4th 290, 295 [“The mandatory provision of section 473(b) only empowers a court to set aside a default judgment or a dismissal”].) Further, wife did not seek relief in the trial court under the mandatory relief provision of section 473(b). “[T]he trial court is not required to consider granting relief under the mandatory provision without a request for such relief... supported by the requirements of the provision.” (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125.)
Mandatory relief is provided 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.” (§ 473(b).)
Lastly, the sanctions award was clearly supported. Family Code section 271 provides, in pertinent part: “[T]he court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.” (Fam. Code, § 271, subd. (a).) Section 271 provides that the court must consider the parties’ incomes, assets, and liabilities when assessing a sanction. (Ibid.) Here, the court had before it income and expense declarations and evidence that husband incurred significant legal fees in opposing wife’s unsuccessful motions to set aside a stipulated judgment entered in settlement of the divorce proceedings. The fee award was adequately supported.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BIGELOW, P. J., FLIER, J.