How have the majority responded to a dissent from the Court of Appeal in a case where the majority found that the absence of prejudice was sufficient to justify a finding of excusable neglect?

The majority says that this dissent rests on my "view that the magistrate erroneously failed to reach the question of excusable neglect," and says this argument is "easily rebutted." (Maj. opn., p. 913.) The argument is indeed easily rebutted, but it is not my argument. The majority's procrustean effort to minimize the magistrate's improper reliance on prejudice is accomplished not only by distorting the magistrate's explanation for his ruling, but by mischaracterizing the issue. The question in this case is not, as the majority claims, whether the magistrate "understood the need to find excusable neglect." (Maj. opn., at p. 914.) Of course he did. The question in this case is whether the magistrate understood and applied the legal definition of excusable neglect; that is, whether the magistrate actually determined that the undisputed prosecutorial neglect "might have been the act or omission of a reasonably prudent person under the same or similar circumstances." (Ebersol v. Cowan, supra, 35 Cal.3d 427, 435, 197 Cal.Rptr. 601, 673 P.2d 271.) The magistrate's explanation for his finding that the neglect was excusable reveals his complete ignorance of or indifference to the legal standard and shows that he ruled as he did only because he believed respondent would not be prejudiced if a third filing of the criminal complaint was permitted.

The statement in Elston v. City of Turlock (1985) 38 Cal.3d 227, 235, 211 Cal.Rptr. 416, 695 P.2d 713, seized upon by the majority ("Reversal is particularly appropriate where relieving the default will not seriously prejudice the opposing party"), is not at all inconsistent with the settled principle that the absence of prejudice cannot excuse conduct otherwise inexcusable. The problem in this case is not that in reaching his decision the magistrate considered the lack of prejudice. The problem is that that is all he considered.