Metropolitan News-Enterprise


Monday, August 9, 2010


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Appeals Court: Paralegal’s Misadventure Not Excusable Neglect

Mandatory Relief Provision Inapplicable to Summary Judgments, Panel Also Rules




An attorney whose lack of supervision resulted in his paralegal’s taking a file on a pending summary judgment motion with her on an Alaskan cruise, then trying to serve the opposing papers electronically from a Canadian magistrate’s office, is not entitled to relief from the ensuing judgment, the Fifth District Court of Appeal has ruled.

The justices ruled Thursday that Kings Superior Court Judge Thomas DeSantos did not abuse his discretion by denying Susan Henderson’s motion to set aside the summary judgment throwing out her employment discrimination suit against Pacific Gas & Electric Co.

The panel also held, as have some other courts, that the portion of Code of Civil Procedure Sec. 473(b) mandating relief from default or dismissal upon timely motion accompanied by an adequate declaration of attorney fault does not apply to summary judgments.

DeSantos granted the company’s motion for summary judgment after Henderson’s then-attorney, Rod McClelland of Fresno, failed to file a complete set of opposition papers by the Sept. 8, 2008 deadline.

Lawyer’s Declaration

McClelland did, on Sept. 15, file a declaration stating that he had entrusted the preparation of the opposition to his paralegal because of his own busy schedule, and that she told him she had made arrangements with an attorney service in Fresno to e-mail the papers to the service for filing with the court.

Opposition was not filed, however, until Sept. 17, just five days before the hearing. DeSantos declined to continue the hearing, struck the opposition and granted the motion based on the moving papers.

On March 20, 2009, the plaintiff moved to set aside the summary judgment under Sec. 473(b). In support of the motion, McClelland submitted a declaration explaining that that he had been “forced to focus” on a summary judgment motion in another case, that he assigned the motion in Henderson’s case to his paralegal four weeks before the opposition was due, and that the filing was delayed because PG&E had dragged its feet on discovery.

He further explained that the paralegal had taken the file home from his office without permission, that he was unable to reach her before the deadline, and that he learned from her after her return that she had unilaterally taken the step of going to the Canadian magistrate’s office and obtained permission to use their equipment to electronically serve the opposition on defense counsel.

Fault Acknowledged

Once he learned that, McClelland said, he filed the Sept. 15 declaration, although those facts were not contained in it. He acknowledged that he should have instructed the paralegal to provide him with drafts of the papers at least a week earlier.

Describing the paralegal as a “former rogue employee,” McClelland asserted that his reliance upon her was excusable neglect for which the client was entitled to mandatory relief under the statute.

DeSantos, in denying the motion, held that because it was a summary judgment and not a default, default judgment, or dismissal that was under attack, the mandatory relief provision did not apply. He went on to deny discretionary relief on the ground that McClelland had sufficient time to move for a continuance of the summary judgment motion and that his failure to do so was inexcusable.

Justice Gene Gomes, writing for the Court of Appeal, said it was reasonable for the trial judge to find the delay indefensible.

Henderson “went ‘all in’ on a bad bet,” the justice said, explaining:

“First, he waited until the eleventh hour to begin opposing a summary judgment motion he had known about for months. Next, he assigned the preparation of that opposition to a paralegal who he failed to supervise. Finally, learning that the paralegal had left the state with the opposition the last business day before it had to be filed without his having seen it, he hoped for a miracle instead of immediately going to court to request an extension of time.”

 Gomes went on to acknowledge that some cases have construed the mandatory relief clause as applicable to summary judgments. But the statutory language and legislative intent, he concluded, are to the contrary.

The case is Henderson v. Pacific Gas & Electric Co., 10 S.O.S.  4577.


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