The Law Frowns on Attorney's Neglect but 'Positively Glowers' at Its Exploitation
"Admittedly, the law frowns on an attorney‟s neglect to comply with a clear rule. However, it positively glowers at another attorney‟s exploitation of such neglect as an excuse to break his word."--Ron Burns Const. Co. v. Moore (Cal. Ct. App. - May 11, 2010)
The great quote above from yesterday's decision in Ron Burns Const. Co. v. Moore (via the California Appellate Report) was directed squarely at defense counsel in the case. As laid out in the appellate opinion, plaintiff‟s counsel and defendants‟ counsel agreed to multiple extensions of plaintiff‟s time to file a motion for attorney fees on appeal, while they were trying to settle the amount owed. Under California Rules of Court, however, any stipulation to extend the time for filing a motion for attorney fees on appeal must be filed with the court before the original time has expired. Plaintiff‟s counsel did not file a written stipulation within this time, however.
The appellate court summarized that:
When negotiations broke down, plaintiff‟s counsel finally filed a motion for attorney fees on appeal. Defendants‟ counsel did not deny granting several extensions of time; nevertheless, he argued that the motion was time-barred. The trial court agreed, and it therefore denied the motion for attorney fees. Plaintiff‟s counsel then filed a motion for relief from default.
The trial court denied plaintiff's motion, finding among other things that the failure to file a written stipulation in a timely manner was"inexcusable neglect."
The appellate court, however, held that the failure to file a timely written stipulation was not inexcusable neglect as a matter of law, concluding its analysis by stating that:
[Defense] counsel has never denied granting at least two extensions of time....He granted these extensions even though the first one had not been timely filed with the court. His client benefited from the extensions, because it gained the opportunity to try to settle [plaintiff's] claim for attorney fees. Under these circumstances, he is taking advantage of [plaintiff's] counsel's mistake in precisely the manner that is disfavored by law, to say nothing of common decency.
Posted by Bruce Carton on May 13, 2010 at 12:16 PM | Permalink
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