Mandatory Relief From Setting Aside A Default Depends On Credibility Of Counsel’s Declaration.

Under Code Civ. Proc. Section 473, subdivision (b), setting aside a default or dismissal if a timely motion is filed supported by an attorney’s “declaration of fault.” But, according to Cowan v. Krayzman (Cal. App. Second Dist., Div. 8; June 20, 2011) 196 Cal.App.4th 907, [126 Cal.Rptr.3d 793, 2011 DJDAR 9043], the court does not have to take the lawyer’s word for it.  In Cowan, the trial court determined that the lawyer’s declaration was not credible and that the trial court’s determination, if supported by substantial evidence, was binding on the appellate court. In Cowan, plaintiff’s declaration showed that defendant’s attorney had previously told him that defendant did not hire the lawyer until after the time to file a responsive pleading had run.