No, not that word. I am referring to "mistake" as in "mistake, inadvertence, surprise or neglect." On August 5th, the Fifth Appellate District issued an opinion in Henderson v. Pacific Gas & Electric 2010 Cal.App. LEXIS 1368. There, plaintiff's counsel "waited until the eleventh hour to begin opposing a summary judgment motion he had known about for months . . . assigned the preparation of that opposition to a paralegal who he failed to supervise." And when the paralegal left town the day before the opposition was due, promising to get it done despite heading for a cruise ship, counsel "hoped for a miracle instead of immediately going to court to request an extension of time."
The trial court found belated attempts to file pieces of opposition untimely. It also granted summary judgment for PG&E. Nothing to worry about. That's where Code of Civil Procedure section 473 subdivision (b) comes in right?
Um, no. As Henderson reminds us, the majority of appellate courts take the view that the "mandatory relief" provision of 473 subdivision (b) does not apply to summary judgment motions. This provision, also referred to as the "attorney fault" provision, requires a court to grant relief so long as the attorney files an affidavit falling on the sword. The policy is to avoid unjust results where due to an attorney's inexcusable failure to act, a party loses its day in court. But, as Henderson observes, by its express terms, the mandatory relief provision only applies to defaults, default judgments or dismissals. And while some appellate courts have taken a broader view, the majority have characterized such decisions as "understandable, yet ultimately misguided quests to salvage cases lost by inept attorneys" applying the mandatory relief provision "far beyond the limited confines the Legislature intended." (English v. Ikon Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 148.)
Of course, that leaves the discretionary provision of 473 (b) where a court "may" grant relief from a "judgment, dismissal, order, or other proceeding" due to "mistake, inadvertence, surprise, or excusable neglect." (Italics added.) Certainly, by its terms, relief here applies to more than the mandatory relief provision's "default, default judgment or dismissal." But note the word "excusable" in the discretionary relief provision? Courts have interpreted it to mean that excusable mistakes are only those that can happen to any non-lawyer, not mistakes falling below the standard of care. Such mistakes include computers crashing, fax machines jamming, erroneous addresses on envelopes, that sort of thing.
But in Henderson, the Fifth District concludes that the trial court did not abuse its discretion in denying relief because, "a reasonably prudent person . . . upon learning that the opposition would not be available to review before filing, [would not] simply wait to see if in fact the opposition is filed." Such conduct by an attorney is not only inexcusable, it falls below the standard of care.
And those last three words bring us back to the title of this post.