2011-00110332-CU-PA

Jonathan Lahaderne vs. David Gneiting

Nature of Proceeding:    Motion to Set Aside

Filed By:  Schade, Edward A.

Plaintiff Jonathan Lahaderne’s motion to set aside judgment is granted.

Pursuant to CCP § 473(b) Plaintiff seeks to set aside a judgment entered in this action
pursuant to a CCP § 998 offer to compromise on the basis that the offer sent to
Defendant contained an incorrect amount.

This personal injury matter proceeded to judicial arbitration in November 2012 after
which Plaintiff requested a trial de novo.  A MSC was held on July 29, 2013, and
Plaintiff made two separate CCP § 998 offers the next day:  a $15,000 offer to
defendant David Gneiting and a $32,500 offer to defendant Barbara Gneiting.
Defendant Barbara Gneiting accepted the offer on August 7, 2013, and judgment was
entered on August 12.  Plaintiff claims that the $32,500 offer was erroneous and it was
supposed to be $52,500.

Here, despite Defendants’ vigorous protests, the Court finds that Plaintiff has shown
that the judgment in this action was the result of mistake, inadvertence, surprise, or
excusable neglect such that relief is available pursuant to CCP § 473(b).  Indeed, as
seen from the declaration’s of Plaintiff’s counsel and his assistant, Plaintiff mistakenly
conveyed a CCP § 998 offer to defendant in the amount of $32,500 when he intended
to convey an offer in the amount of $52,500.  (Schade Decl. ¶ 5; Wiley Decl. ¶ 3.)
Counsel failed to review the 998 offers before signing them and sending them to
Defendants.  He states that gave his assistant an assignment to draft two 998 offers
for the two defendants, one for $15,000 and the other for $52,500 and she returned
shortly with the demands which he signed without reviewing them.  (Schade Decl. ¶ 5.)
He states that since he has never had any issues in the past with 998 offers given that
his demands are uniform with only the amount demanded changing, and since such a
short time passed between the time he gave his assistant the assignment and she
returned with the offers, he did not review them before signing them.  (Id.)  His
assistant declares that counsel has poor handwriting and that she mistakenly drafted  the offer at the lower amount rather than for $52,500.  (Wiley Decl. ¶ 3.)  Further, at the
MSC, Plaintiff never demanded less than $50,000 and the settlement judge advised
counsel that $40,000 could resolve the matter.  (Schade Decl. ¶ 4.)

Under the circumstances, the Court finds that the error in this case, specifically,
drafting the 998 offer in the amount of $32,500 rather than $52,500 is the type of error
that was essentially “a clerical or ministerial mistake that could have been made by
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anybody.”  (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4   249, 259.)
Indeed, counsel instructed his assistant to draft an offer in the amount of $52,500 and
simply failed to review the offer before signing it based on the fact that he uses uniform
forms and has never had an issue with such offers before.  “While counsel’s failure to
review the document before sending it out was imprudent, we cannot say that his
imprudence rendered the mistake inexcusable under the circumstances.”  (Id.)

Defendants’ arguments in opposition are not persuasive.  They first argue that the
instant motion involves a mistake “of law” because “[r]eading between the lines, it
appears Plaintiff [sic] counsel made a mistake of law, failing to realize the offer to
Defendant Barbara Gneiting, the driver, would extinguish the obligation of the owner.”
There is no evidence to support this assertion that the instant motion involves a
mistake of law and the court declines to “read between the lines” to find one.

Defendants next argue that this motion involves Plaintiff’s counsel’s professional error
and thus CCP § 473(b) does not apply.  The Court rejects this argument.  This is not,
as in the authority cited in the opposition, a situation where Plaintiff’s counsel failed to
include specific terms in a CCP § 998 offer.  (Pazderka v. Caballeros (1998) 62
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Cal.App.4   658, 671 [failure to include provision for fees and costs in a 998 offer not
the type of error made by person with no special skill or training].)  Importantly,
Pazderka did not involve an attorney’s failure to review a document which he or she
directed an assistant to prepare but instead involved the attorney’s failure to actually
include specific terms in the 998 offer and the attorney’s belief that the language in the
998 offer was sufficient to encompass fees and costs.  By contrast, here, the situation
involves an attorney’s failure to review a 998 offer that he directed his assistant to
prepare in a specific amount.  This does not involve inclusion/omission of provisions in
the 998 offer, or a mistaken understanding as to the meaning of the language in the
offer, but rather a failure to confirm that the offer was drafted as instructed.  This is the
type of “clerical or ministerial mistake that could have been made by anybody.”  (
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Zamora, supra, 28 Cal.4   at 259.)

The Court also rejects the argument that the mistake at issue was not one that a
reasonably, prudent person might have made under similar circumstances.
Defendants reason that the mistake was not excusable because Plaintiff’s counsel
concedes that the only thing that changes in his 998 offers is the amount demanded
yet given the importance of a 998 offer, failing to review that one variable is
inexcusable.  The Court cannot agree.  A reasonably prudent person utilizing a
document that they have standardized over time such that only one variable changes
(e.g. the amount demanded) could have made the same error, specifically failing to
confirm that the one variable was correct after having instructed their assistant to
prepare the document.

The Court notes Defendants’ highlighting that at various points in Plaintiff’s motion and
in the supporting declarations, Plaintiff refers to a 998 offer in the amount of $37,500,
though the 998 offer that was accepted and is at issue in the motion was for $32,500.
Despite Defendants’ contentions that Plaintiff has created confusion, the factual
circumstances are clear and the apparent typographical errors in the motion have no
bearing on the outcome.

Finally, the Court rejects the argument that the prejudice to Defendants is a basis to
deny the motion.  Here, Defendants argue they will be prejudiced because setting
aside the judgment “is to return to the uncertainty of litigation, to the cost of litigation
and now, to the uncertainty of any future demand.”  However, this is true whenever
any judgment is set aside and no judgment could be set aside pursuant to CCP § 473
(b) under Defendants’ rationale.

The motion is granted.  The judgment entered August 12, 2013 is set aside.

This minute order is effective immediately.  No formal order pursuant to CRC rule
3.1312 or other notice is required.