Metropolitan News-Enterprise


Tuesday, April 2, 2019


Page 3


Court of Appeal:

Client Can’t Be Penalized for Lawyer’s Failure to Attend to Duties Diligently

Trial Court Must Permit Amended Complaint Without Production of Proposed Pleading


By a MetNews Staff Writer


The Third District Court of Appeal has reinstated a woman’s employment discrimination action against a school district, holding that repeated bungling by her South Bay attorney should not prejudice her, and declaring that she must be granted leave to file an amended complaint without first producing a proposed pleading reflecting possible merit.

Justice Louis R. Mauro wrote the opinion, filed Friday and not certified for publication. It reverses the dismissal of an action by Carla Epting against the Sierra Joint Community College District, which serves Placer and Nevada counties and parts of El Dorado and Sacramento counties.

Epting was represented by Michael S. Traylor, whose office address is a Playa Del Rey apartment building.

Leave to Amend

The case was filed in Los Angeles and removed to the Placer Superior Court. A judge of that court, Michael Jacques, sustained a demurrer to the complaint, with leave to amend by Sept. 16, 2016.

Four days past the deadline, Traylor advised the district’s attorney that on Sept. 23, at 8 a.m., he would seek an order, ex parte, extending the time for repleading. The district’s attorney appeared; Traylor didn’t.

Traylor set two more ex parte hearings—for Sept. 26 and Sept. 28—and at each, the district’s lawyer was present, and Traylor wasn’t.

Jacques subsequently granted the district’s motion to dismiss, pursuant to Code of Civil Procedure §581(f)(2), based on the failure to amend within the time allotted.

After two failed efforts to have the dismissal set, Traylor on Nov. 29, 2016 filed a motion—pursuant to the mandatory relief provision of Code of Civil Procedure §473, based on an attorney’s affidavit of fault—to set aside the Nov. 4 judgment of dismissal and to permit the filing of a first amended complaint. Jacques denied it on Jan. 3, 2017.

Deliberate Tactics

The district argued on appeal that Traylor’s tactics were deliberate and his various excuses were unworthy of belief. Mauro responded:

“But relief under the mandatory portion of section 473, subdivision (b) is available even for inexcusable neglect by an attorney.”

He continued:

“We understand why the trial court may have lacked sympathy for Traylor’s requests and why the District questions his credibility. We certainly do not condone Traylor’s handling of this matter, which is why we will remand with directions that the trial court consider further orders under section 473, subdivision (c)(1).”

That portion of §473 authorizes imposition on an offending attorney of a sanction of up to $1,000 and an order that the lawyer pay up to $1,000 to the State Bar Client Security Fund, as well as “other relief as is appropriate.”

Mauro went on say that “based on the record before us, it appears that Epting should not be denied an opportunity to present an amended complaint simply because of her counsel’s errors and omissions.”

No Proposed Pleading

The district argued that relief is foreclosed because Epting has not produced a proposed first amended complaint.

“But none of the cases cited by the District stands for the proposition that a court may deny relief under the mandatory provision if the proposed pleading does not state a cause of action,” Mauro said, adding:

“The mandatory provision of section 473, subdivision (b) contains no such requirement.”

The case is Epting v. Sierra Joint Community College District, C084246.


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