Davis v. Kay
34 Cal. App. 3d 680, 110 Cal. Rptr. 198, 1973 Cal. App. LEXIS 836 (1973)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
An attorney's repeated reliance on a secretary who has previously made the same calendaring error does not constitute excusable neglect under Code of Civil Procedure section 473 sufficient to set aside a judgment. An attorney cannot completely abdicate personal responsibility for tracking imminent and complex court deadlines.
Facts:
- Allen V. C. Davis was owed money by Jeff S. Kay, Evelyn N. Kay, and David J. Kay on a promissory note.
- The Kays failed to make payments as required by the note, causing the amount to become past due.
Procedural Posture:
- Allen V. C. Davis sued Jeff S. Kay, Evelyn N. Kay, and David J. Kay in the trial court for money due on a note.
- When the Kays failed to file an answer, a default judgment was entered against them.
- The Kays moved the trial court to set aside the default judgment under Code of Civil Procedure section 473, claiming excusable neglect due to a secretarial calendaring error.
- The trial court granted the Kays' motion and set aside the first judgment.
- Davis then filed a motion for summary judgment.
- The Kays failed to file an opposition or appear at the hearing, and the trial court granted summary judgment for Davis.
- The Kays again moved to vacate the judgment under CCP § 473, again blaming their attorney's secretary for failing to calendar the hearing date.
- The trial court granted the Kays' second motion and vacated the summary judgment.
- Davis, as appellant, appealed the trial court's order vacating the summary judgment to the Court of Appeal.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a trial court abuse its discretion by setting aside a summary judgment under Code of Civil Procedure section 473 where the moving party's excuse for failing to oppose the motion is a secretary's repeated failure to calendar a hearing, an error that had previously led to a default in the same case?
Opinions:
Majority - Roth, P. J.
Yes. A trial court abuses its discretion by setting aside a judgment where the claimed neglect is not excusable. Here, the failure of counsel's secretary to calendar the hearing for the motion for summary judgment does not constitute excusable neglect because this was the second time such an error occurred. The first default judgment, which was set aside for the same reason, should have put the attorney on notice of his secretary's unreliability. Furthermore, the attorney received the complex motion for summary judgment and indicated he would prepare a response, which implies he knew or should have known of the imminent hearing date and could not completely delegate the responsibility for calendaring it. The court concluded that the 23-day delay in moving to vacate the second judgment after receiving notice of the ruling suggested a pattern of deliberate delay, which the court will not tolerate.
Analysis:
This decision clarifies and narrows the scope of what constitutes 'excusable neglect' under CCP § 473, particularly in the context of law office administration. It establishes that while a single, isolated secretarial error might be excusable, a pattern of such errors is not. The ruling places a greater burden on attorneys to supervise their staff and maintain personal awareness of critical deadlines, reinforcing that ultimate responsibility cannot be delegated away. Future litigants will find it more difficult to vacate defaults or judgments by repeatedly blaming clerical staff, as courts are now directed to consider whether the attorney was on notice of staff unreliability.
