Neglect is by standard (as opposed to conduct which falls RPP “excusable” below professional standard of care)… BUT, relief ONLY available from default/judgment NOT for missed … motion deadline, etc. (NO for late SoL, motion” motion”) “473(b) “473(b) (“shall”) relief available mistake, inadvertence, surprise, OR Mandatory neglect (NOT excusable)… AND, accompanied by attorney’s sworn affidavit of fault Client would prefer over legal malpractice claim (which, motion” “473(b) again, is difficult to prove)… BUT, may NOT be preferable to attorney must pay mandatory fees/ … costs… AND, must write sufficient affidavit connecting own error to default/judgment Practical to both AND discretionary relief mandatory relief… If neglect is excusable, then (NO fees/costs)… BUT, if discretionary neglect is NOT excusable, then stuck w/ mandatory If attorney will NOT sign affidavit (OR, affidavit insufficient), then AND, if does NOT grant then discretionary… discretionary relief, attorney likely faces legal malpractice claim If error occurred before client retained attorney, OR client’s own fault, then AND, if NOT granted, then NO legal malpractice claim as discretionary… fall-back Timing issues… must be sought reasonably within 6 months Discretionary relief must be sought within 6 months (NO mention of Mandatory relief reasonableness… BUT, nonetheless, should act within reasonable amount of time Clerical mistake good basis for motion” “473(b) In P’s counsel (via secretary) Zamora v. Clayborn Contracting Group, Inc., makes typo in instead of (appears if P offer” favor of” “998 “against” “in willing to pay $149K to settle)… BUT, the law with particular disfavor on a party who, regardless … “looks of the merits of his cause, attempts to take advantage of the mistake, court finds it surprise, inadvertence, or neglect of his adversary” to “hard [D] [“998 believe that had no inkling that offer”] was a mistake” D’s counsel had competing ethical obligations to fully represent client (accept offer”)… “998
Neglect is “excusable” by RPP standard (as opposed to conduct which falls below professional standard of care)… … BUT, relief ONLY available from default/judgment NOT for missed motion deadline, SoL, etc. (NO “473(b) motion” for late “473(b) motion”) Mandatory (“shall”) relief available mistake, inadvertence, surprise, OR neglect (NOT excusable)… AND, accompanied by attorney’s sworn affidavit of fault Client would prefer “473(b) motion” over legal malpractice claim (which, again, is difficult to prove)… … BUT, may NOT be preferable to attorney must pay mandatory fees/ costs… AND, must write sufficient affidavit connecting own error to default/judgment Practical to both discretionary relief AND mandatory relief… If neglect is excusable, then discretionary (NO fees/costs)… BUT, if neglect is NOT excusable, then stuck w/ mandatory If attorney will NOT sign affidavit (OR, affidavit insufficient), then discretionary… AND, if does NOT grant discretionary relief, then attorney likely faces legal malpractice claim If error occurred before client retained attorney, OR client’s own fault, then discretionary… AND, if NOT granted, then NO legal malpractice claim as fall-back Timing issues… Discretionary relief must be sought reasonably within 6 months Mandatory relief must be sought within 6 months (NO mention of reasonableness… BUT, nonetheless, should act within reasonable amount of time Clerical mistake good basis for “473(b) motion” In Zamora v. Clayborn Contracting Group, Inc., P’s counsel (via secretary) makes typo in “998 offer” “against” instead of “in favor of” (appears if P willing to pay $149K to settle)… … BUT, the law “looks with particular disfavor on a party who, regardless of the merits of his cause, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary” court finds it “hard to believe that [D] had no inkling that [“998 offer”] was a mistake” D’s counsel had competing ethical obligations to fully represent client (accept “998 offer”)…
Civ-Pro-II_Bakhshian-Fall-2009.docx