Berendsen v. Babdaty

California Court of Appeal May 10, 1923 No. Civ. No. 4234.Published

Before: Houser

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Holding. The court granted the respondents' motion to dismiss the appeal and denied the appellant's motion for relief from default, holding that an attorney's heavy workload, poor health, or internal office staffing issues do not constitute excusable neglect for failing to file a brief on time.

Issues

Whether an appellant's failure to file an opening brief within the time prescribed by court rules constitutes excusable neglect under section 473 of the Code of Civil Procedure.
Whether an attorney's illness and pressure of work justify relief from default for failing to file a brief on time.

Disposition. dismissed

Quotations verified verbatim against the opinion

“The fact that appellant’s counsel was under an unusual pressure of work and that his general health was poor cannot be accepted as a sufficient reason for excepting his ease from the salutary rule requiring briefs to be filed within a certain time.”

“The purpose of the rule is not only to facilitate the business of the court, but as well for the convenience and ultimate advantage of litigants. In order that it may be of value, it must be enforced.”

HOUSER, J.

Plaintiffs have presented a motion to dismiss the appeal of defendant Badaty herein for the reason that he has failed to file his opening brief within the time allowed by rule of this court, and the said defendant has filed a motion to be relieved from such default.

It appears that appellant was first late in filing the transcript on appeal in that while it should have been filed not later than January 3, 1923, it was not until February 12, 1923, that it was actually filed. At that time the attorney representing plaintiffs wrote a letter regarding the matter of further delay to Bernard Potter, Esq., who was representing the appellant. It is not denied that the letter was received by Mr. Potter. A copy of the letter is as follows:

“February 12th, 1923.

“Mr. Bernard Potter,

“Title Insurance Building,

“Los Angeles, Calif.

“Dear Mr. Potter:

“I have just signed the stipulation and acknowledged service on your transcript in the Babdaty case, and Parker & Stone told me that they would call for it to-morrow, and it will then be filed. In view of the very considerable delay in filing the transcript, which was inexcusable in your client, I am going to insist on the brief being filed within the proper time, which, as I figure it, will be on or before Thursday, March 15th. In view of the consideration which I have shown in the matter of the transcript, I think you will agree with me that this is only fair, and will also understand that my complaint in the matter is directed at your client and not at your own good self.

“With best personal regards, I am,

“Tours very truly,

“Samuel H. French.”

Subdivision 4 of rule II of this court (176 Pac. viii) provides that “within thirty days after the filing of the transcript, the appellant shall file with the clerk his printed points and authorities.” As is stated in the letter to Mr. Potter, the appellant’s opening brief was due to be filed with

[187]

Berendsen v. Babdaty

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HOUSER, J.

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