All Gone to Pot...

McClain v. Kissler, No. A152352 (D1d2 Aug. 29, 2019)

This an odd case. It’s a fight between some pro ses (although one of them is a lawyer) over contracts related to a marijuana business. Defendant (the lawyer) claimed that she was never properly served. But she nonetheless participated in the litigation for a long time. That said, she never moved to quash service or answered either. Plaintiffs, on the other hand, never tried to put her in default. Eventually, the trial court ordered Plaintiffs to do that, on pain of sanctions. After they did so, Defendant moved for both mandatory and discretionary relief under Code of Civil Procedure § 473(b). Which the trial court denied, finding that Defendant’s neglect was inexcusable.

The Court of Appeal affirms in a lengthy split decision. It’s all made harder by the fact that the case is procedurally complicated and the record is a mess. The lead and dissenting opinions disagree on a number of points about the basic events of the litigation. But the real debate is philosophical. One one hand (the majority view) just not bothering to answer, after months and months of litigation, and even after being told by the court that you need to do, isn’t excusable neglect. So discretionary § 473(b) relief can’t save Defendant. On the other hand, Defendant’s active participation in the litigation suggests it really didn’t make any sense to resolve the case by default (the dissent’s view). Both sides seem basically right, as a matter of first principles anyway.

So far as mandatory § 473(b) relief goes, the Court holds that a lawyer pro se can’t avail herself of that by filing a declaration and falling on her sword. The whole point of mandatory relief is to save the client from her lawyer’s mistakes. When the client and the lawyer are the same person, that doesn’t make sense.

Affirmed.