By Hon. Kenneth J. Medel
You have missed a Court or legally mandated deadline and are in a panic. Other than flee to a different state and crawl under a bed, what should you do?
First, for some matters, a missed deadline is fatal. If you violate the statute of limitations with an unambiguous accrual date, and no “tolling” conditions, say goodbye to your case. The Court does not have the power to grant clemency and your opponent is unlikely to agree to relief. The Court also lacks jurisdiction to relieve missed filing deadlines on Motions for Summary Judgment and New Trial, inter alia.
On the other hand, if you miss correctable deadlines there is hope.
Contact the Opposing Attorney(s)
Pick-up the telephone and call, or, better yet, meet in person with your opposing attorney and explain the problem. Avoid making your first communication in writing. Modern-day “meet and confers” in writing frequently result in petrification of opposing positions. This undermines the purpose of your effort to resolve the issue.
Express the human side of the problem to your opposing counsel. Lawyers are human too and most of them have made mistakes. By showing contrition, you may soften your opponent’s attitude, facilitate a practical solution to the problem, and avoid bringing the controversy to the court’s attention.
In communicating with counsel, stick to the truth. You will only aggravate your misery if your account is fraught with inconsistencies, misrepresentations, or fabrications. If telling the truth is too damaging, then dispense with the details and simply outline your predicament.
Ex Parte Relief
If discussion with opposing counsel fails, set an Ex Parte Hearing. Your ex parte papers should request both immediate relief, and, alternatively, a motion to shorten time for a hearing on a formal motion. Most Judges would like to resolve the issue then and there, but they may be forced to deny relief if a formal motion hearing is legally required and the opposing counsel objects. Unless you have asked to shorten time for a formal motion, you may leave the hearing with nothing accomplished.
Use the waiting time before the hearing to engage opposing counsel toward a solution. Opposing counsel may finally realize that the issue is not worthy of Court attention and relent.
If you missed a deadline to (a) file moving or opposing motion papers, (b) serve discovery responses or (c) file an answer/response to the Complaint, the code requires that you have your late documents ready to file at the Ex Parte hearing. Having documents in hand may also assuage the opposing lawyer’s sense of inordinate delay and soften the Court’s mindset toward granting the relief you are requesting.
The attorney who made the mistake should have the courage to show-up to answer for it. It is disappointing when the partner or trial attorney who made the error sends an innocent associate or colleague to confess vicariously and implore the Court for relief. The associate should not have to absorb heat from opposing counsel or the Judge and the associate may not be able to answer the Court’s questions about what happened. If the supervising lawyer is present he or she should take ultimate responsibility for an error made by an associate or clerical staff and not deflect blame; “Your honor, there was an error in our office for which I take full responsibility as the supervising attorney. Here is what happened . . .”
Be forthright, thorough and contrite in explaining to the Judge what happened.
CCP § 473(b) Relief
Code of Civil Procedure Section 473(b) generally provides relief from any judgment, order or other adverse action resulting from the attorney’s or the party’s mistake, inadvertence, surprise, or excusable neglect. Under 473(b) it is within the Court’s discretion to grant you relief by determining that your reason for the missed deadline fits into one or more of those categories.
When the cause of the missed deadline is something that could have happened to an ordinary person, the Court considers whether “a reasonably prudent person under the same or similar circumstances might have made the same error.” Jackson v. Doe, 192 Cal. App. 4th 742 (2011). But if the attorney conduct falls below “the professional standard of care, such as failure to timely object or to properly advance an argument”, then it is not excusable. Id.
There is a discrete provision within Section 473(b) that requires mandatory relief when the motion pertains to “a default resulting in a default judgment, or a default judgment or dismissal entered again the client” and the attorney files an affidavit of mistake, inadvertence, surprise or neglect. Note the word “excusable” is absent from this provision. Thus, the Court must grant the relief unless the Court makes a finding that the judgment was not caused by attorney mistake, inadvertence, surprise of neglect. Beware that your motion must be filed within a reasonable time after the missed deadline, in no case longer than six months after the order, dismissal or adverse action was taken.