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Bullard v. California State Automobile Association5/10/2005
l neglect was excusable because the negligence of the attorney is imputed to his client and may not be offered by the latter as a basis for relief.' [Citation.] In determining whether the attorney's mistake or inadvertence was excusable, `the court inquires whether "a reasonably prudent person under the same or similar circumstances" might have made the same error.'" [Citation.] In other words, the discretionary relief provision of section 473 only permits relief from attorney error `fairly imputable to the client, i.e., mistakes anyone could have made.' [Citation.] `Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.' [Citation.]" (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258 (Zamora).)
The party seeking relief under section 473 must also be diligent in applying for relief within a reasonable time as defined by the statute. (ยง 473, subd. (b).) "Where the mistake is excusable and the party seeking relief has been diligent, courts have often granted relief pursuant to the discretionary relief provision of section 473 if no prejudice to the opposing party will ensue. [Citations.]" (Zamora, supra, 28 Cal.4th at p. 258.)
In the trial court, the Bullards noted the irony of CSAA seeking relief under Code of Civil Procedure section 473 after missing the deadline for filing their opposition to the Bullards' petition to compel arbitration, where the petition was necessitated by the Bullards' failure to timely preserve their rights under section 11580.2, subdivision (i). They cited a "key difference" between their petition and CSAA's motion. The Bullards explained that they filed their petition while the limitations period applicable to arbitration of uninsured motorist claims was "in a state of flux." "In stark contrast, the time frames for filing a response to a petition to compel arbitration have remained completely static" under Code of Civil Procedure section 1290.6.
The Bullards' opposition to CSAA's motion under Code of Civil Procedure section 473 framed the central issue as "whether [CSAA's] mistake one of ignorance of the law coupled with negligence in ascertaining the law, or a simple miscalculation in calendaring." The trial court found it was the latter. The court could reasonably infer from CSAA's declarations that the failure to meet the deadline for filing the opposition was the result of a simple ministerial calendaring error. The secretary to CSAA's attorney Tamara Wood stated in her declaration that when she received the Bullards' petition, she mistakenly calculated April 2, 2004, as the due date for the opposition. The opposition papers were, in fact, due on or before March 22, 2004. Wood discovered the mistake in calendaring for the first time when she began work on the response on March 25, 2004.
The record also demonstrates that CSAA exercised diligence in notifying the Bullards' attorneys and seeking relief under Code of Civil Procedure section 473. Wood discovered the mistake less than a week after the opposition was due. She immediately contacted Morgan, requesting a stipulation to file a late opposition. Morgan informed Wood that he did not have authority to agree to the stipulation and would contact his clients. Receiving no response, Wood filed an ex parte request for an order shortening time and motion for relief under Code of Civil Procedure section 473.
The Bullards do not claim they were prejudiced by CSAA's failure to file the opposition on time. The court
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