California, United States of America
The following excerpt is from Cathay Bank v. Iny, B224842 (Cal. App. 2011):
"Neglect" encompasses deliberate acts or omissions. (Solv-All v. Superior Court, supra, 131 Cal.App.4th at p. 1010 [the attorney neglect requirement was satisfied where counsel fell on his sword and, without refutation, absolved his clients of all responsibility].) This interpretation comports with the legislative purpose of the provision. (Ibid.) "From the client's point of view, it doesn't matter a whit whether the default was due to gross carelessness or bad strategy; either way, the client is the one stuck with the judgment resulting from the attorney's error. In both cases, it is the attorney's 'neglect' to carry out his duty to his client that causes the problem. In both cases, the client should be entitled to relief if the attorney admits that the inaction was his responsibility." (Ibid.) If counsel acknowledges his neglect might be determined to be inexcusable and "confirms that any act or omission, careless or deliberate, which led to the entry of the default was done without the client's knowing participation, . . . relief under the mandatory provisions of section 473 is required[,]" unless the trial court made a contrary finding based on conflicting evidence in the record. (Id. at p. 1012.)
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