Motion to vacate a judgment in California on the grounds of attorney misconduct

A motion to vacate a judgment in California on the grounds of attorney misconduct is the topic of this blog post. Also discussed is moving in the alternative that any default, dismissal, judgment or other order should be vacated for failure to give notice pursuant to Code of Civil Procedure section 286.

A party in California may request that any default, dismissal judgment or other order be vacated on the grounds that severe attorney abandonment and neglect amounted to positive misconduct and the default, dismissal, judgment or other order should be vacated on the grounds of extrinsic mistake under the inherent equity power of the Court.

Code of Civil Procedure § 286 may also be used as an alternative ground for relief as it states that, “When an attorney dies, or is removed or suspended, or ceases to act as such, a party to an action, for whom he was acting as attorney, must, before any further proceedings are had against him, be required by the adverse party, by written notice, to appoint another attorney, or to appear in person.”

At least one California Court of Appeal has stated that failure to give the notice required by Code of Civil Procedure § 286 may be used as an alternative ground for relief in a case where there is a showing of positive misconduct by the attorney.

Cases where positive misconduct has been found to exist include cases where an attorney failed to serve process, failed to appear at several pretrial conferences  as well as failing to communicate with the client, the court and opposing counsel.  Other cases where positive misconduct has been found include cases where an attorney failed to respond to discovery requests or to oppose a motion to dismiss for failure to respond to discovery, was suspended by the California State Bar and failed to oppose a motion resulting in a default judgment.  

Numerous cases from the California Courts of Appeal have stated that positive misconduct by an attorney may entitle the client to relief from any default, dismissal, judgment or other proceeding so long as the client is relatively free from negligence. Relief may be denied if the client was also negligent. However several decisions have also stated that a client has the right to rely on the performance of their attorney and failing to check on the status of a case even for periods exceeding two years does not always constitute negligence on the part of the client.

One recent decision from a California Court of Appeal stated that where the conduct of the attorney amounts to abandonment the Court will consider factors such as the policy favoring a trial on the merits; the client's own conduct; prejudice to defendant and the policy that innocent clients should not have to suffer from their attorneys' gross negligence among others.

Several decisions of the California Supreme Court have stated that a trial court has an inherent equity power under which it may grant relief from a default, dismissal, judgment or other order

obtained through extrinsic fraud or mistake.  Attorney misconduct in appropriate cases may constitute extrinsic mistake.

Attorneys or parties in California who would like to view a portion of a 14 page sample motion to vacate judgment in California on the grounds of attorney misconduct containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail sold by the author can use the link shown below.

Sample motion to vacate judgment in California for attorney misconduct



The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

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DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.