LILLY RANEY VS. COURIER PLUS, INC., A CALIFORNIA CORPORATION, ET AL

To be entitled to discretionary relief, the moving party must show that the act or omission resulting in the adverse judgment is one that a reasonably prudent person might have committed under similar circumstances. (Renteria v. Juvenile Justice, Dept. of Corrections & Rehabilitation (2006) 135 Cal.App.4th 903, 910.) This showing must be made by a preponderance of the evidence, and a court has no discretion to grant relief if this showing is not made. (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410.)

May 8, 2026 Law and Motion Calendar

HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________

B. No Affidavit of Attorney Admitting Mistake

Raney’s request for mandatory relief is based on the alleged mistakes and neglect of her former attorney, Joseph A. Gross. Raney contends that Gross’ failure to save documents and communications, calendar appearances, and record case information resulted in three failures: (1) to file an opposition to the demurrer to the Second Amended Complaint (“SAC”), (2) to plead viable causes of action, and (3) to meet court deadlines.

However, Raney has not filed a sworn affidavit or declaration from Gross, only one from his successor and Raney’s now-former attorney, Brian M. Heit. “By its language, the statute ... requires the affidavit be executed by an attorney who represents the client and whose mistake, inadvertence, surprise or neglect in fact caused the client’s default or dismissal.” (SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 517 [italics added].) That is, the plain text of the statute requires the declaration to be signed by the attorney who made the mistake— contrary to Raney’s bare assertion that any attorney may file a declaration blaming his or her co-counsel.

The motion and amended motion attempt to place blame squarely on one person: Gross. For the first time on reply—and apparently since Heit himself has left the case and cannot object—Raney points to Heit’s mistakes and neglect as causes of the judgment of dismissal in addition to the argued neglect by Gross. However, no such theory is set forth in the initial or amended memorandum of points and authorities, depriving Courier of its right to respond. This new, belated basis for relief thus cannot be considered.

Therefore, for the foregoing reasons, mandatory relief is denied.

C. Excusable Neglect Not Established

Raney also request discretionary relief, based on the same purported mistakes and neglect. “In examining the mistake or neglect, the court inquires whether ‘a reasonably prudent person under the same or similar circumstances’ might have made the same error.” (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276.)

“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.” (Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1400.) “In deciding whether counsel’s error is excusable, the reviewing court looks to the nature of the mistake or neglect and whether counsel was otherwise diligent in investigating and pursuing the claim.” (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1782–1783.)

Here, there is no showing whatsoever that Gross’ neglect was excusable. Raney does not event attempt to explain why Gross’ “professional negligence” could have been committed by a reasonably prudent person under the same circumstances. (Mar. 18, 2026 Amended Motion, p. 4, l. 9.) Further as mentioned above, the motion places blame only upon Gross. By all accounts, the evidence submitted shows the opposite: inexcusable malpractice.

Therefore, for the foregoing reasons, discretionary relief is denied.

Accordingly, the Motion to Set Aside Judgment is DENIED.