Metropolitan News-Enterprise


Tuesday, March 27, 2007


Page 3


Decision to Represent Self Not ‘Excusable Neglect,’ Court of Appeal Rules




A litigant’s decision to represent himself, despite difficulties in understanding the English language and legal procedure, was not “mistake or excusable neglect,” that would entitle him to a new trial, the Fourth District Court of Appeal ruled yesterday.

Div. Three affirmed Orange Superior Court Judge Kirk H. Nakamura’s order denying Ilie Burnete’s motion to set aside a judgment entered against him after nonsuit. The judge earlier ruled that Burnete failed to present a prima facie case in his action charging the owners of La Casa Dana Apartments in Anaheim of maintaining a stairway in dangerous condition.

 “In retrospect, Burnete realizes that he made a mistake in assuming that he could competently represent himself at trial,” Justice Eileen Moore wrote for the court. “He says that this assumption constituted mistake or excusable neglect, justifying a set aside, and that the court abused its discretion in denying his motion.  Were we to agree, no judgment against a self-represented party would ever be final.  Every defendant who paid for legal counsel at trial would have to pay for a second trial after the self-represented plaintiff lost. “

In support of his motion, Burnete said that he is Romanian, speaks English poorly, and had “absolutely no knowledge of the laws, rules and regulations governing the trial of a case to a jury” at the time of trial. He also asserted that he was operating under emotional strain and financial duress and was in poor health.

As a result, he explained, he failed to designate his medical expert and was unable to present the expert’s testimony at trial, was unable to get photographs and medical records into evidence, and communicated poorly in giving his own testimony.

Moore said the trial judge acted within his discretion in denying the motion.

The justice noted that the plaintiff had been warned that he would receive no special consideration, and would be held to the same standard as an attorney, and had acknowledged the warning. Having accepted the risks of self-representation, Moore said, Burnete was “stuck with the outcome.”

Moore distinguished a 1951 case in which the Court of Appeal ruled that a divorce judgment should be set aside because the husband was “in the psychopathic ward” of a hospital at the time default was entered against him and could not litigate the case. The cases are different because Burnete had the opportunity to, and did, appear in court and there was no default judgment, Moore wrote.

The justice also distinguished Rappleyea v. Campbell (1994) 8 Cal.4th 975, in which the court ruled that two pro per defendants whose answer was rejected because they did not pay the right amount for the filing fee were entitled to relief from a $200,000 default judgment.

The court in that case relied on the fact that the clerk’s office had given the defendants erroneous information, a fact not present in Burnete’s case, Moore explained. 

The case is Burnete v. La Casa Dana Apartment, G037377.


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