By Carl I. S. Mueller, Esq. and Nicole A. Poltash, Esq., The Maloney Firm, APC 

In a continuation on a theme, the California Court of Appeal issued another ruling emphasizing that lawyers must exercise care in all aspects of litigation, even in trying to correct mistakes.

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All humans err. To that end, the California legislature enacted California Code of Civil Procedure (“CCP”) § 473 to allow trial courts to forgive litigants and attorneys who acknowledge their errors.  But as the Court of Appeal noted on June 15, 2020 in the decision, Pacifica First National, Inc. v. Abekasis (2020) 50 Cal.App.5th 654, the right to a pardon under Section 473 is not limitless.

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In Abekasis, Arie Abekasis (“Abekasis”), failed to respond to a cross-complaint. Cross-complainant Pacifica First National, Inc. (“Pacifica”) purported to serve the cross-complaint on Abekasis’s attorney at that time, Leslie Richards (“Richards”). Richards did not file responsive pleadings on behalf of Abekasis, and Pacifica took Abekasis’s default.

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Represented by new counsel, Abekasis moved to set aside the default, claiming that cross-complaint was not served on Richards. Abekasis’s new counsel did not include a declaration from prior counsel, Richards, as to either service or any potential attorney error. Thus, neither the trial court nor the Court of Appeal had admissible evidence that the cross-complaint had not been properly served, nor did either tribunal receive a declaration wherein Richards acknowledged the default was her fault.   Rather, the motion relied on only a declaration from Abekasis’s new counsel, who lacked the necessary foundational knowledge to testify that “the service was bad.” As a result, Abekasis’s motion to set aside the default on the grounds of bad service was fatally flawed. Compounding matters, Abekasis’s new counsel failed to retain a court reporter for the hearing on the motion to set aside the default.

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Significantly, the Court of Appeal noted that while Abekasis argued on appeal his entitlement to mandatory relief under Section 473, that argument had been waived because Abekasis had only sought discretionary relief under Section 473 in the trial court. Had Abekasis’s new counsel correctly prepared the motion, including a declaration from Richards admitting fault and seeking absolution for the benefit of the client, Abekasis may have been successful in obtaining relief from the default.  In other words, an argument for relief under Section 473 at the trial would have likely won the day, but Richards failed to admit her errors and ask the trial court for absolution for the benefit of her past client.

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In addition to the failure to submit adequate evidence with his moving papers, Abekasis’s new counsel failed to obtain a transcript of the hearing to set aside default. As to the transcript, the Court of Appeal gave a wise warning:

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There is no transcript of this hearing. When appreciable sums are in play, it is mysterious why lawyers on both sides think the small cost of court reporting is a good cost to avoid. We publish this opinion in part to discourage misplaced thrift.

The Court of Appeal made clear in its opinion that Abekasis’s attorneys’ multiple failings, including failing to submit the necessary declarations in support of their motion and failing to obtain a hearing transcript, cost their client the chance to litigate claims: “Because he chose not to retain a court reporter, the slim text of that motion is what we have to go on, and that motion lacked merit.”

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The Abekasis decision serves as a reminder for all attorneys to exercise due care at all stages of litigation. Many of the civil procedure statutes, coupled with applicable case law, provide guidance on the proper course of action.  Attorneys must take steps to know and understand the rules applicable to the matters they are handling. 

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About the Authors:
 
Carl Mueller is a business litigation attorney that represents clients in all phases of civil litigation. Mr. Mueller’s practice has a focus on attorney-client disputes of all kinds. Nicole Poltash is a civil litigation attorney. If you have questions regarding this article contact Carl Mueller at cmueller@maloneyfirm.com or Nicole Poltash at npoltash@maloneyfirm.com.

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