Rodrigues v. Superior Court of Santa Clara County

CERTIFIED FOR PUBLICATION Introduction Code of Civil Procedure section 473, subdivision (b),1 requires the trial court in a civil action to grant relief from default when the defaulting party's attorney files an affidavit attesting that the default was the product of his or her mistake, inadvertence, surprise, or neglect. The question now before us is whether an affidavit so attesting entitles the defaulting party to mandatory relief if it is executed by an attorney not licensed to practice in California, but licensed in another jurisdiction. We have concluded that granting relief in such circumstances is consistent with both the language and the remedial purpose of the statute. Accordingly we will deny a petition seeking a writ of mandate to set aside an order granting relief on the basis of an affidavit of fault signed by a Portuguese attorney. Factual and Procedural Background Plaintiff Maria Rodrigues brought this action with respect to certain residential real property in San Jose, which had been purchased as an investment by defendants Fernando Machado Joaquim and Maria Machado, who are married. Plaintiff claimed an undivided half interest in the property, and sought to partition it by sale under sections 872.210 and 872.230. Defendants were served with process in Portugal, where they reside, under the provisions of the Hague Convention. (20 U.S.T. 361-373, T.I.A.S. No. 6638.) When they failed to answer the complaint, plaintiff took their default and then obtained a default judgment. The judgment awarded an undivided half interest in the property to plaintiff, and the other half to defendants as joint tenants. The default judgment directed plaintiff to sell the property and to divide with defendants the balance due after payment of encumbrances, expenses, and attorney fees.