*1 No. 31481. Dec. 1982.] [L.A. CARROLL, Minor, etc.,
JAMES DOUGLAS Respondent, Plaintiff LABORATORIES, INC.,
ABBOTT
Defendant and Appellant.
* Reprinted
Counsel
Overton, Prince, & Laurence H. Schnabel and Jon P. Lyman Kardassakis for Defendant and Appellant. W. Landrum for Plaintiff and Respondent.
Lee Opinion
KAUS, J.
I to section 473 the Code of Civil Pro- orders made pursuant Appeal Proc., (Code Civ. cedure,1 aside a of dismissal. vacating setting 904.1, (b).) subd. § 473 of the Code Civil Procedure Section permits
This is the problem: The word “excusable” means that: inex just neglect. for “excusable” relief (Luz Lopes relief. neglect prevents cusable *4 (1948) 31 161, 289]; Mfg. P.2d v. Dalmo Co. Cal.2d Benjamin Further,
523, attorney’s as a rule an inex 528-533 Co., Mfg. to the client. v. Dalmo (Benjamin neglect chargeable cusable Yet, County (1964) with Butte Daley at starting 380, 693], there a 388-395 has line of developed commentator noted that protest which has one “the more prompted cases the more certain is attorney, and inexcusable party gross Witkin, (5 (2d 1971) Cal. Procedure ed. Attack on relief.” Judgment of getting 147, Court, 3721.) This opinion to solve attempts in Trial apparent § paradox.
n we are to discuss are Monica Denise Car- Involved in about proceedings minor roll, and ad litem James the mother guardian Douglas Carroll, (counsel) and Lab- legal defendant Abbott representative oratories, (Abbott). Inc. 11, counsel, James, on December behalf of filed a
On complaint James, minor, a It that suffered alleged damage Abbott. brain when against James, Nembutal, Monica, a ingested drug while manufactured pregnant Abbott. by trial, for Abbott served on counsel a notice requesting produc-
In preparation of documents: records James’ three sets medical treat- concerning tion Vietnam; Hospital Adventist medical Day Saigon, at the Seventh ment Vietnam; James’ treatment a military and concerning hospital records that Monica detailed James’ by years. first kept eight book” “baby a may, upon may “The pertinent part: just, such terms as provides 1 Section order, representative judgment, proceeding or other taken legal his relieve inadvertence, mistake, neglect. . .” or excusable . through surprise his him against basis for the was Monica’s request deposition testimony indicating that these in her documents were possession. service of the Following notice on counsel and February time, was four requested granted extensions of but November 7 the had documents still not been produced. then Abbott That filed motion to motion compel production. was granted—counsel had not at the notice of the hearing—and was appeared ruling served on him. order, When counsel failed with the court comply Abbott went to court a time, second dismissal of the case for seeking failure with the court comply or, alternatively, order a second order On compelling production.2 January 1980, the court a second motion to granted and compel continued production made, dismiss. however, motion to Production was still not on at a which there was January hearing no for again appearance plaintiff, the court dismissed James’ action as Abbott.
On counsel filed a motion for relief from the January dismissal under declaration, In his Code of Civil Procedure section 473. he asserted that none of were in his or documents Monica’s He also requested possession. admitted been in he had touch with his client since that 1979. did July Counsel at a motion. February urged own appear hearing trial court the motion to vacate the dismissal condition granted and Monica not know stating they file declarations did the whereabouts of the requested *5 condition, failed to that the they documents. When fulfill motion to the vacate off dismissal was taken calendar. a second
Counsel filed motion for relief under 473 section on 1980. April declaration, In his newest he asserted that on February he had in- been did, all, that formed Monica she after the by possess requested documents. In fact, counsel that point July Monica told at one between and August she asserted, the however, had turned documents over to him. actually Counsel that Monica, time his office returned the documents to some thereafter he though himself “no recollection of this rather disturbing had event.” Counsel’s which, in of the motion also contains certain support allegations declaration if believed, that the January have a dismissal supported finding had been might of the result of a mistake induced certain by representations Abbott’s attorney. were latter.3 denied the This second motion for relief was allegations 23, 1980,
submitted, trial court it the indicated would May and it. grant Two of May order is below.4 features that be quoted ruling minute should However, the interrogatories. sought compel to to certain since both 2 Abbott also answers documents, our only of the production vacation of dismissal involved later dismissal and solely discovery. aspect on that of Abbott’s efforts at discussion focuses grossly negligent implies had been finding that counsel that the factual eventual 3 The court’s against plaintiff. conflict was resolved and, having plaintiff’s after due been submitted consideration declarations 4 “The matter dismissal, judgment the court finds and rules to be relieved from support in of its motion negligent grossly representa- that counsel has been in his follows: The court finds huts, first, found, or had any court without ifs that counsel been noted: interests”; second, in the plaintiffs negligent representation “grossly it felt been dismissal aside because had penalty inap- set the event, later, a month on June the court harsh.5 In found that any propriately It granted had court order. then the mo- substantially counsel complied of dismissal.6 be relieved from tion to
III is established that ‘a motion for relief under It well Civil Pro [Code to 473 is addressed the sound discretion of the section trial court and in cedure] accepts plaintiff interests and as true that the was not contacted at plaintiffs relevant tion of times. Procedure, (b) imposed under Code Civil Section Subdivisions and “The sanctions (d) just. and must be appropriate be to dereliction must discovery is party to enable a to obtain evidence under the statutes control purpose “The disposition (Caryl and adversary in order to further the efficient economical a lawsuit. of his Court, Richards, Superior compel Where a motion to has Inc. vs. denied, delayed discovery has the court granted, regard been must make orders in been Proc., (Code (b)(2).) just. Civ. subd. § as are the refusal dereliction, to the appropriate should not exceed that which is re penalty “The should discovery. entitled party to but denied Where a motion to quired protect interests granted, operate the sanction should not previously put been such fashion as to compel has position he he discovery in better than would have had if had obtained the prevailing Hassen, (Stein completely it favorable his cause. sought and had Discovery (1968) Thompson, 301-303. See Sanctions Civil California 173, 185-186.) Clara Law. 8 Santa that: granted on condition “The motion is $750.00 pay defendant’s counsel additional fees the sum of within “1. Plaintiff’s $500.00 is February of order. This sum in addition to the ordered on of service days $1350.00. paid days payment to be within 20 for a total latter sum likewise 1980. The interrogatories days. within plaintiff “2. file verified answers That days. requested within 20 produce documents as “3. That stating shall file with the court declaration that there has been com- *6 “4. Plaintiff’s days this order within 25 of the order. the terms of pliance with compliance no for until with make motion to set trial the order is made. plaintiff “5. shall The 14, 1980, only so far as it limits the February produc- is vacated “6. order of (B)(2)(h). 2034 per CCP tion of evidence 25, compliance Department on June Compliance set for review 84 1980. “7. The matter is by plaintiff’s declaration.” may established law, discovery application ill-timed. A under its was motion section may this be sound 5 While (Hagan appeal.” “was intended as for an never a substitute Code of Civil Procedure 473 of the Thus, Boilers, 101, 575].) (1950) Cal.App.2d 106 P.2d while the Inc. [214 96 v. Mund’s error, may judicial appealed it was have been had never and to dismiss January 24 order 110, 112-113 (1936) Superior v. Court 7 Cal.2d P.2d May [59 Stevens 23. also final as of 1, (1967) Cal.Rptr. 7 Ferrara v. La 988]; Cal.App.2d 252 Superior 891] Court [59 v. Russell 23, 263, 274 179].) May (1960) Cal.Rptr. On issue before Cal.App.2d [9 186 Sala excusably negligent? 473: counsel been That cognizable under section had was one course, plaintiff. was, decisively against resolved issue question plaintiff really controversy on the whether had considerable record reveals 6 The produce fact never May 23 order. It is a that Monica did with the conditions complied charitably, Hospital. The trial court found—too Day Adventist Seventh records were “in existence.” the records that produced had all she perhaps—that 898
the absence a clear of abuse thereof showing the exercise of that discretion will not be (Martin disturbed on v. Cook appeal.’” (1977) 799, 68 Cal.App.3d 434]; 807 Coyne v. Cal.Rptr. Krempels (1950) [137 36 Cal.2d 263 [223 discretion, however, 244].) P.2d That ‘is not a or capricious arbitrary discre tion, discretion, but an impartial guided controlled in its exercise fixed discretion, It is not a mental legal principles. to be exercised ex gratia, but a discretion, to be exercised in legal conformity of the law spirit and in a manner to subserve and not to or defeat the impede ends of substantial ” v. justice.’ (Benjamin (1948) Dalmo Co. Mfg. 526 [190 593]; Bailey Cal. 29 Taaffe
In who general, seeks relief under section 473 on the basis of mistake or inadvertence of counsel mistake, must demonstrate that such in advertence, or was excusable general neglect “because the negligence the at ... is to his client torney not imputed may be offered by the latter as a (Buckert for relief.” basis Briggs Cal.App.3d [93 61].) The client’s is, redress for inexcusable Cal.Rptr. neglect by counsel course, (Martin an action for v. Cook malpractice. 68 Cal.App.3d 434]; Nat. Cal.Rptr. Orange Empire Bank v. Kirk (1968) [137 ,)7 Cal.App.2d 240]
However, an to this rule has exception developed. “[E]xcepted rule are those instances where the attorney’s is of that neglect extreme misconduct, and the positive relief degree amounting person seeking is free from relatively negligence. exception premised [Citations omitted.] conduct, effect, attorney’s obliterates existence concept upon and for this reason his attorney-client relationship, negligence should not be ” (Italics added.) (Buckert 301; the client. v. Briggs, supra, see imputed at p. Kirk, 353; also, Nat. Bank v. Empire supra, Daley Orange County of (1964) 227 Butte Courts ap attorney’s have to bind emphasized authority exception plying “[a]n him to the client’s cause of impair destroy his client does action or permit Bank, 353; Nat. (Orange Empire Cal.App.2d at p. Daley defense.” Butte, v. County of that his half-hearted counsel’s was ex- attempts argue spite
cusable, that his best for an affirmance hope lies appears appreciate *7 cases; is, all, he after saddled with an line of Daley amply to the sup- in resort that counsel’s trial court was finding “gross.” if not compelled ported therefore, issue, whether counsel’s conduct amounted to becomes The is, course, much faster than a of point 7 From the client’s of view relief under section however, of Realistically, the mere threat years down the road. malpractice judgment several actually may thus negotiations and liability brings purse another into the settlement malpractice disposition. speedy further was by which and plaintiff “effectually unknowingly misconduct” “positive Butte, (Daley County representation.” supra, of deprived Cal.App.2d of 391.) at p. fall the in the cases that within factual circumstances look at the
A brief that are hopes will make it clear plaintiffs exception misconduct” “positive to son in order failed serve attorney Daley, In plaintiffs misplaced. in trial. He which resulted postponement as a party, repeated him join to conferences and failed to communicate at successive pretrial to failed appear all, he a substitution of court, sign counsel. Worst did client or other with months, either to out the refusing get than five apparently for more attorney circumstances, it. all these the court concluded to with Given proceed case and in nominal technical sense.” “had legal representation that plaintiff Butte, v. County (Daley whose on the client was sued attorney, guaranty,
In Orange Empire the that he would defense that the interpose assured the client client’s repeatedly The failed to file an attorney was a guaranty forgery. ap- signature case, date, advance notice of the trial he failed and despite ap- in pearance in a which resulted substantial this judgment. Throughout period, for trial pear times his client and had many had been contacted continued to attorney care of the and would care that he was case take of the trial. taking assure him attorney’s on the failure to file for relief from the focused also judg- The court his continuing assurances to the client statutory period, despite within ment would be taken. The client other finally sought action that remedial learned, his from his own had failed to inquiries, original attorney he after to the judgment. any respect take action Buckert, the re attorney failed to
Finally, question notify plaintiffs date, so, do a new trial that he would and did specific promises garding despite at the trial on behalf of When one of the plaintiffs. plaintiffs not himself appear trial had taken he contacted the immediately attorney that the place, learned (None he had lost interest the case. thought who said plaintiffs plain fact, had that the matter be they had so indicated. tried as soon requested tiffs told the he would seek to have the attorney as possible.) aside, and would informed did keep progress. attorney set plaintiffs One of the again. finally and in fact never contacted plaintiffs plaintiffs neither case, in the to the who informed him of judge possibility wrote presiding then at 473. Plaintiffs obtained services another relief under section on their behalf. The court concluded that the evidence such relief seek torney was in fact not attorney representing plaintiffs, original demonstrated ... attorney-client “[attorney] regarded relationship indicated had intention not act on attorney preconceived be nonexistent [that a] (Buckert, their behalf.”
What Daley, Orange and Buckert Empire have in common is a total failure on the of counsel to part represent client: each attorney had de facto substituted himself out of the case. Under such circumstances it would have been uncon scionable to rule apply charging client with the attorney’s is, however, The case before neglect. us quite different. Though counsel matter, mishandled a routine grossly discovery no abandonment of the client The record and counsel’s own appears. declaration reveal quite opposite: after in he filing complaint attended Monica’s deposition in August to a propounded interrogatories physician-codefendant and answered four sets of that defendant interrogatories by with whom he eventually settled. In he July 1978 and 22 propounded interrogatories for requests admission to Abbott, turn, Abbott. When in served its for request production documents, did, noted, counsel did not them—he ignore obtain four time, extensions of and somehow caused Monica to deliver some or all of the documents requested office, he to his returned them to though inexplicably her. Finally, after the ac dismissed, tion was he started a rescue which operation resulted in the brief, favorable which Abbott judgment appeals. in though connection he with documents failed to production obviously effective give represen tation, not, court, in he did the words of the Buckert “obliterate the existence of (Id., attorney-client relationship.”
“The that the law favors all trying cases policy controversies their upon not be merits should prostituted permit slovenly of law practice or to duty scrutinizing carefully relieve courts the affidavits or declarations forth, of motions for relief to ascertain filed whether support they set for relief. grounds When adequate particularity, inexcusable [Fn. omitted.] courts, condoned even tacitly by they themselves unwittingly Ads, the orderly (Transit become instruments of the law.” undermining process Ltd. (1969) v. Tanner Motor Livery, Inc. concern, the Daley Given this should be exception narrowly find that the lest the twin negligent attorneys simplest way gain goals
applied, from defaults and themselves from clients rescuing is to malpractice liability, ever greater heights incompetence professional irresponsibility rise nonetheless, while, a beatific maintaining attorney-client relationship. claims that Abbott was not prejudiced by delay fur Finally, plaintiff for the documents. We assume purpose argument nishing requested have, however, We found no case which per this is so. aside of a inexcusable spite neglect, mits the setting simply not been In re other side has prejudiced. generally Marriage because the 882]; Cal.3d Park Weitz
901 620, 700];8 P.2d Ben- 409 Cal.Rptr. (1966) 63 Cal.2d Yankosky [48 531-532.) Co., at Cal.3d pp. Mfg. Dalmo v. jamin facto severance of the sum, to show the kind de the record fails since In into doctrine necessary bring Daley which is to relationship attorney-client have granted. should not been 473 relief the section play, Reversed. J., J., Broussard, J., Richardson, Newman, J., J.,
Mosk, Reynoso, concurred. dissent.
BIRD, C. J. respectfully I ” “ law,’ hold of the the majority today of the ‘orderly process the name In to a lawsuit was dismissed not relief whose may grant that a trial court ” conduct his ante attorney. (Maj. opn., ‘grossly negligent’ because conclusion, an overlook 897-900.) reaching majority impor- In at pp. which favors the disregard policy tant of judicial power, public source merits, trial on their and fail deference give of all causes determination cannot said to serve the interests of fairly The end result be court’s decision. (1964) 227 justice.” (Daley County v. Butte “substantial Cal.Rptr. 390 [38 note, the of a to grant discretion trial court relief from majority As “ ‘ discretion, to ex gratia, is not “a mental be exercised but a legal
dismissals
discretion,
. .
conformity
to be exercised in
law
.
spirit
898.)
at
But the
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California
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8 Weitz
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added.) (63
(Italics
6 Cal.2d
Wattson
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Cal.2d
wider.
[56
Wattson,
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section 473.
neglect than
Downey
Higley
Bank
Slaughter
“Although who cases in which client are exceptional . . . there attorney, *11 dismissal will relieved from a default or be neglect free from personal relatively his This of counsel. is or procrastination [Citations.] to the inaction attributable to the client amounts to failure attorney’s represent the true where particularly bind client to his does attorney’s authority An misconduct. [Citation.] positive the client’s cause action or destroy to him impair not permit of defense. Kirk, Bank Nat. at Empire Cal.App.2d v. (Orange [Citation.]” 353, added.) italics p. inexcusable, is clear the focus in attorney’s
If the negligence inquiry Nat. (Orange Empire Bank to to the whether relief shifts client. deciding grant Kirk, 353; Conway Municipal Court at see v. Cal.App.2d p. 1009, 246].) (1980) 107 1018-1019 “Where the Cal.Rptr. Cal.App.3d [166 attorney, not that of the but his it [party] mistake is appears greater Stub v. Harrison has It is in relief been extended. stated tolerance granting [1939] Cal.App.2d 685, at pages [96 P.2d 979]: [¶] ' . The . delay any prejudice prejudice automatically from the .... If lack of will suffered not making automatically motion under section should succeed when it not enable one to statutory to his within time to the judg- who make motion set aside [the limit] enable one fails powers the by equity to court. To hold otherwise appealing encourage ment the would [statutory elapses moving to set a until the time before default litigants limit] to wait power to relief its equity grant power To that the court’s differs from under sec- aside. the extent (Id., narrower, not equity power must considered wider.” at the tion context, it proper apparent majority that this last sentence—citedby in its as When read power of the equity applicability court—refers to general limitation to for relief. requirement equitable an action time” “reasonable 33, 42 citation of Wattson Dillon Nor does 220] Weitz cited, court, majority’s position. page On the the Wattson support suggesting to the that the lend might discovering justified his own error have been delay in as “reasonable” if the ac party’s brought delay under that the had been section found laches for relief constituted suffi tion equity. provisions may ‘The breadth of the relief statute not cient foreclose ” attempt powers (Ibid.) as an to broaden the a court of equity.’ be construed properly . . . proposition seeking the unremarkable that one equity therefore stands for relief in must Wattson equitable, statutory, under principles. for that relief The Wattson a basis court establish fraud, no moving party there had made claims collusion or but that the default noted that contast, (Ibid.) infra, justification neglect. By own as discussed for by his relief was caused party, but “extrinsic fraud or mistake.” not the this case is fact, majority exception an by actually cases cited to section 473 was one of the three 3 In Orange Empire power. Nat. Bank v. Kirk equitable the court’s under decided 240].) Cal.App.2d 352-353 [66
courts ... are somewhat loath to penalize on account litigant of some omis sion on the of his part attorney, where the particularly litigant has acted prompt ” . . . and has relied ly upon attorney to protect rights.’ (Dingwall Inc. Vangas, 351] [decided under § the case majority attempt distinguish at hand from Orange Empire and
other relief in circumstances, cases similar granting but that is not con attempt distinction between one vincing. attorney’s “positive misconduct” and is, best, elusive; another’s at “gross negligence” the factual circumstances the two cases are not as dissimilar as the simply claim. In majority Em Orange concluded that a had pire, “unknowingly of ef deprived fective counsel’s failure to representation serve process, appear conference, court, communicate client, with the pretrial [or] other Kirk, (Orange counsel . . . .” Nat. Bank v. Empire supra, 259 Orange that, Like the record in Empire, this case indicates aside from an initial flurry activity, took no virtually action with case. in November Beginning to this counsel failed to respect appear at *12 documents, to on a motion compel failed to hearing production with comply motion, the court order that failed to at granting again appear when hearing renewed, failed to the motion was and when the again motion comply was counsel did at When not on appear defendant’s to granted. hearing motion dismiss, dismissed the action. At no during the court time this period was with it be counsel in contact his client. Can doubted that in the reasonably chain to dismissal the was leading “unknowingly of events plaintiff deprived effec (Ibid.) only It was when tive counsel was confronted with representation”? and, doubt, no lawsuit to dismissal of the un began contemplate of a action himself that he malpractice against resumed even pleasant possibility in the case. The resumption activity a minimal interest case had after that cannot the fact was left change essentially been dismissed without times the course of this at critical during litigation. more, between the facts of is drawn distinctions this case finely What and not, here. The rule of is Orange not as the ma appropriate Empire others are must, therefore, contend, created to a statute which exception a judically jority 900.) Rather, ante at the rule is maj. opn., p. “narrowly applied.” be (Weitz court’s broad and “inherent equity power” in the Yankosky, grounded for the 855) and trial p. provides ample support court’s here.4 judgment although phrased terms plaintiff, filed of section affidavit also 4 The motion and claim, plaintiffs the trial court found that equitable relief. Consistent for state a claim “plaintiff-was “grossly negligent” and that not contacted at relevant times.”
counsel had equitable power grant refer to its when it announced its decision to specifically The court did not clearly However, equitable within the of the power that decision was court to make since relief. overlook not majority erring attorney, this condemn haste to In their to the more than service lip but no give also power court’s equitable will ordinarily or default relief from dismissal granting an order rule Witkin, (2d (5 Procedure Cal. principles. well established two under upheld First, Court, 3735.) mo- in Trial on 1971) Judgement § “[a] Attack ed. to addressed the sound discretion is a default judgment to aside tion set of abuse of discretion where and, showing of a clear court, the absence trial ” motion, the order. court will disturb the appellate grants trial court Second, is the Cal.2d at p. policy Yankosky, supra, (Weitz “[i]t merits, on the favor, hearing appellate wherever possible, to tihe law is to affirm an order where result to compel more are much disposed courts are when the ... is allowed to judgment than they the merits trial upon one that deference It close cases like this trial (Ibid.) .” is in . . . stand is most appropriate. controlling these and declare the usually principles, override majority “ discretion, an abuse of in the interest of the ‘orderly order process trial court’s ” ante courts have an interest in (Maj. opn., Certainly of the law.’ of lawsuits. orderly Although the prompt disposition ensuring [defen statute, underlying entitled to the the dismissal weight policy dant is [, unreasonable ... delays litigation policy which seeks prevent that] that which seeks on the merits rather litigation than powerful dispose less Butte, (Daley County grounds.” Cal. than procedural added.) italics at p. App.2d Moreover, it is not to so necessary limit the trial court’s drastically discretion orderly process in order the law. The preserve interests other parties *13 and of are more than protected (See justice adequately by existing safeguards. Witkin, Procedure, 5 Cal. supra, Court, Attack on generally Judgment Trial 192, 194, 3765-3766.) A motion addressed to a pp. court’s equity §§ course, is, (Olivera vulnerable defenses such laches. power equitable v. Grace, 575; re 19 Cal.2d at supra, p. Marriage Coffin, supra, 63 Cal. Also, relief in at is not available if other App.3d p. equity can party addition, (Ibid.) In show trial may, where prejudice. im appropriate, (See costs v. moving party. Yankosky, 63 pose upon supra, Cal.2d at Weitz Furthermore, aggrieved must seek relief within p. ‘a 856-857; Kirk, (id., Orange reasonable time’” at Empire Nat. Bank v. pp. 355; (1960) at Davis v. Davis 185 supra, Cal.App.2d p. Cal.App.2d 874]), must “facts from which it can be plead ascertained that the has a meritorious claim to entitle him trial sufficiently to a plaintiff Grace, 579; (Olivera . . . .” at supra, the issue see Turner p. Allen 758-759 case, regardless grounds must be actually of this affirmed under the facts 180-182; Witkin, (See Lopez, pp. at Cal. Pro upon. relied Munoz 226, 228, 4215-4216, 4217.) 1971) (2d Appeal, pp. ed. §§
cedure rely Rather than these existing safeguards abuse prevent by irresponsi- incompetent attorneys, ble or conclude that relief majority must be withheld result, from a blameless As a concededly plaintiff. is left action malpractice his against attorney. of such a adequacy remedy, however, has commentators, questioned number of by for good Mazor, Power and reason. in the generally Responsibility Attorney-Client 1120, 1134-1135, Relation 20 Stan.L.Rev. and cases cited therein.) action, recover in a “a client must show To that but malpractice for his at- he would have been torney’s negligence successful the original litiga- (Note, Attorney tion . . . .” Malpractice Colum.L.Rev. omitted.) fn. “Few seem able to malpractice litigants survive this ‘trial within at (Mazor, supra, trial.’” Stan.L.Rev. fn. omitted.) Obviously, burden is difficult to “especially this meet when the attorney’s conduct his the client cause of prevented bringing original Moreover, action .... must, claim was original client whose dismissed in order to establish the ex- damages, tent the amount prove judgment that he would have attorney (Note, recovered had his been negligent.” Attorney Malpractice, 1307-1308, 63 Colum.L.Rev. fns. pp. omitted.) These difficulties make outcome actions in cases malpractice like this far from certain. are a substitute for They poor equitable relief. an courts have interest in
Certainly, preventing attorneys from rising to “ever greater heights incompetence and professional irresponsibility” (maj. opn., ante, 900), but that interest cannot be allowed to override the court’s fun- responsibility justice. damental do law is Existing more than sufficient to Thus, interests asserted protect majority. their disregard of the favoring affirmance in this case principles is not justified. trial broad discretion and the equitable deference it is entitled to from ap- courts make the reversal of pellate majority’s its judgment inappropriate. I would affirm the judgment.