The Fifth District holds that an attorney’s neglect in filing an opposition to a motion for summary judgment was not excusable and did not entitle the party to relief from dismissal.
Henderson filed a complaint against her former employer, PG & E, asserting causes of action for employment and breach of contract. PG & E moved for summary judgment, offering evidence to negate elements of Henderson’s claims and establish a complete defense to the action. On the date the opposition was due, Henderson filed a declaration of her attorney, Rod McClelland, stating that evidence would be presented at the hearing on the summary judgment motion to show a triable issue of material fact existed and attaching as an exhibit one witness declaration. After the opposition was due Henderson filed further documents to oppose the motion. Later still Henderson filed an ex-parte application for an order compelling the depositions of individuals she claimed were the subject of a prior discovery order and to continue the hearing on the summary judgment motion.
McClelland submitted a declaration asserting that PG & E refused to produce witnesses for deposition. He also explained that he had entrusted preparation of the summary judgment opposition to his paralegal, who took possession of the file and then failed to deliver the opposition. He “threw himself on the mercy of the court” to excuse the late opposition. On the day of the summary judgment hearing, Henderson filed an entirely new summary judgment opposition.
The court would not continue the hearing because the depositions sought had not been noticed and there was no declaration as to what evidence would be obtained from them. The request was untimely and not diligently made. The court found that, assuming McClellan’s declaration was made under Code of Civil Procedure § 473, relieving a party of a default due to attorney neglect, it was insufficient. In any event, that code section does not apply to summary judgment motions. The court struck the late-filed opposition and granted summary judgment.
Henderson subsequently filed a motion under C.C.P. § 473(b) to vacate the summary judgment. McClelland submitted a declaration describing the debacle of filing the opposition and admitting his mistake in entrusting the paralegal with preparation of the opposition.
The trial court denied the motion, finding that McClelland should have requested a continuance under the summary judgment statute, and failed to do so in a timely fashion. In addition, an attorney affidavit of fault cannot be the basis for relief from an adverse summary judgment ruling.
The Court of Appeal noted Code of Civil Procedure § 473(b) provides a means for relief from judgment entered as a result of mistake, inadvertence, surprise, or neglect. It has both a discretionary and a “mandatory” or “attorney affidavit” provision.
Mandatory relief is a narrow exception to the discretionary relief provision for default judgments and dismissals. Its purpose 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. The defaulting party must submit sufficient evidence that the default was actually caused by the attorney’s error. If the pre-requisites for the application of the mandatory relief provision of § 473(b) exist, the trial court does not have discretion to refuse relief.
The mandatory relief provision applies only to defaults, default judgments, and dismissals but some courts have construed the provision to reach other circumstances deemed to be their procedural equivalent. The rationale of these cases is that where there is no hearing on the merits, attorney neglect should not prevent a party from having his or her day in court. Other courts have rejected that rationale, characterizing such decisions as understandable, yet ultimately misguided quests to salvage cases lost by inept attorneys.
The Court of Appeal agreed with a line of cases that hold that § 473(b) applies only to relief sought in response to defaults, default judgments or dismissals, which does not include summary judgments. The general rule that a client is chargeable with the negligence of his or her attorney effectively would be repealed if the mandatory relief provision was interpreted to apply to any situation in which an attorney’s “default” led to an adverse judgment.
To be entitled to discretionary relief, the party must demonstrate that the inadvertence, mistake, surprise or neglect of counsel was “excusable because the negligence of the attorney is imputed to his client and may not be offered by the latter as a basis for relief.” Discretionary relief is available only from attorney error that is fairly imputable to the client, that is, mistakes anyone could have made. Conduct falling below the standard of care is not excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.
A mistake is not a ground for relief under § 473 (b) when the court finds that the “mistake” is simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law. Surprise refers to some condition or situation in which a party is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against. Inadvertence or neglect, must have been such as might have been the act of a reasonably prudent person under the same circumstances. It does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief.
Henderson could not explain why McClellan failed to seek a continuance of the hearing when he was unable to prepare her opposition in a timely fashion. McClelland knew before the date the opposition was due that he wanted to take additional depositions, yet he failed to file a timely application for continuance.
Henderson argued McClelland was surprised when the opposition was not ready for his review; the entire file was removed from his office without his permission; and his paralegal did not have the documents sent to the office.
The Court of Appeal found it was within the trial court’s discretion to find McClelland’s surprise or neglect inexcusable. McClelland should not have entrusted the responsibility to prepare the opposition to an employee; the responsibility was ultimately his. McClelland was responsible for supervising his paralegal’s work and is responsible for her work product, including the failure to have the opposition filed on time. McClellan lost the gamble that the paralegal’s plan to file the opposition from a remote location without his review would work. Ordinary prudence could have guarded against these events.
Comment: The statutory scheme for relief from default cannot rectify errors caused by an attorney’s failure to act within the standard of care.