than six months after the judgment was entered, Gens, represented by counsel, filed a motion in the trial court from relief of judgment under Code of Civil Procedure section 473. The motion asserted that the judgment had been entered against Gens through mistake, inadvertence or excusable neglect. The supporting memorandum suggested that Gens had belatedly discovered cer- tain defenses to H&C’s claim for fees, including that recovery was barred by H&C representing conflicting interests without client consent, and that the judgment was based on an impermissi- ble ex parte default award. H&C opposed the motion for relief
from judgment and filed a separate sanctions motion against Gens and his counsel under § 128.7 arguing that the motion was procedurally barred because it was filed more than six months after the claimed mistake, inadvertence or excusable neglect on which the motion rested, and because there was no sub- stantive basis for relief. The trial court denied the motion for relief and imposed sanctions on Gens and his counsel of $9,000. Gens and his attor- neys appealed. Affirmed. A party making a section 473 motion bears a double burden – it
must show a satisfactory excuse for the default and must show diligence in making the motion after discovery of the default. Gens failed to carry either burden. “It is simply not enough to assert a general state of misapprehen- sion or ignorance on some subject bear- ing on a possible defense. He must specify the actual cause of his failure to present the defense the first time around, and explain why that failure should be excused. He has made no real attempt to do this. The trial court therefore quite properly denied relief.” Gens failed to demonstrate that he was unaware of the facts on which his grounds for relief ultimately rested. The fact that Gens was acting in pro per does not provide a basis for relief. “One who voluntarily represents himself is not, for that reason, entitled to any more (or less) consideration than a lawyer. Thus, any alleged ignorance of legal matters or failure to properly rep- resent himself can hardly constitute mistake, inadvertence, surprise or excusable neglect as those terms are used in section 473.” The court also rejected Gens’s sug-
gestion that the arbitration proceeding should be set aside as the product of a “default.” It noted that the underlying
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JANUARY 2012 The Advocate Magazine — 85
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