examples of excusable neglect california

For example, missing a filing deadline in a Social Security disability claim (SSDI) will generally not be excusable, and relief is unlikely. (5 Pomeroy, Equity Jurisprudence (Equitable Remedies [2d ed. (See, e.g., Olivera v. Grace, supra, 19 Cal.2d at pp. Excusable Neglect Even if the court were to deem the Consent Motion a motion to enlarge pursuant to Rule 6(b)(1)(B) of the Federal Rules of Civil Procedure, defendant must still demonstrate that the delay was the result of excusable neglect. Related Civil Procedure Terms. In reaching that conclusion, the majority overlook an important source of judicial power, disregard the public policy which favors the determination of all causes on their merits, and fail to give deference to the trial court's decision. 857.) 2d 788, 792 [8 Cal.Rptr. "The policy that the law favors trying all cases and controversies upon their merits should not be prostituted to permit the slovenly practice of law or to relieve courts of the duty of scrutinizing carefully the affidavits or declarations filed in support of motions for relief to ascertain whether they set forth, with adequate particularity, grounds for relief. Worst of all, he did not sign a substitution of attorney for more than five months, apparently refusing either to get out of the case or to proceed with it. Proc., 2034, subd. In Briley v. Farabow, 348 N.C. 537 (1998), the Supreme Court stated that [c]learly, an attorneys negligence in handling a case constitutes inexcusable neglect and should not be grounds for relief under the excusable neglect provision of Rule 60(b)(1). The court reasoned that, [i]n enacting Rule 60(b)(1), the General Assembly did not intend to sanction an attorneys negligence by making it beneficial for the client and to thus provide an avenue for potential abuse. Under this rule, the Court of Appeals has repeatedly declined to grant relief based on attorney mistakes, such as when counsel: failed to note the date of entry of dismissal, resulting in a missed refiling deadline, Nieto-Espinoza v. Lowder Constr., Inc., 748 S.E.2d 8 (2013); failed to ensure a notice of appeal had been filed, Sellers v. FMC Corp., 216 N.C. App. Federal Courts also allow parties toamendtheir pleadings (Rule 13(f)) or allow courts to revisit theirjudgments(Rule 60(b)(1)) should excusable neglect be found. If you leave the subject blank, this will be default subject the message will be sent with. There are different reasons why such neglect to respond can be excused, including the following: If the motion contains an excusable neglect, meritorious defense or due diligence, the court would most likely grant the motion to set aside. This policy is so strong that "any doubts in applying section 473 must be resolved in favor of the party seeking relief from default." Elston v. City of Turlock (1985) 38 Cal.3d 227, 233; Slusher v. Durrer (1977) 69 Cal. FN 3. Law Offices of Quiat v. Ellithorpe, 917 P.2d 300 (Colo. App. In short, the court need not set aside the judgment if it must then turn around and grant the same judgment on the merits. or Excusable Neglect templates or other official files is not difficult. Rptr. The Wattson court noted that the moving party there had made no claims of collusion or fraud, but that the default was caused by his own neglect. at p. 1135, fn. 173, 185-186.). (Ibid.) 2d 178, 181 [79 Cal. Weitz v. Yankosky, supra, 63 Cal.2d at p. 3d 296, 301 [93 Cal. 61].) surprise, or excusable neglect"). Can it be reasonably doubted that in the chain of events leading to dismissal the plaintiff was "unknowingly deprived of effective representation"? 423, 424. It then granted the motion to be relieved from the judgment of dismissal. 4. When read in its proper context, it is apparent that this last sentence -- cited by the majority as a general limitation on the equity power of the court -- refers only to the applicability of the "reasonable time" requirement to an action for equitable relief. It alleged that James, a minor, suffered brain damage when Monica, while pregnant with James, ingested Nembutal, a drug manufactured by Abbott. 2d 849, 857 [48 Cal. 397 (1978); and Wattson therefore stands for the unremarkable proposition that one seeking relief in equity must establish a basis for that relief under equitable, not statutory, principles. A party will not be excused from paying attention to its case due to ignorance of the law, ignorance of court processes, or failure to obtain counsel. These difficulties make the outcome of malpractice actions in cases like this far from certain. Co. of Am., 195 F.Supp.2d 711, 716 (D.Md.2002) (attorney's illness and hospitalization "`is at best a garden variety claim of excusable neglect' and cannot justify excusing such a delay," particularly when attorney worked with other lawyers). "Although the law ordinarily charges the client with the inexcusable neglect of his attorney, there are exceptional cases in which the client who is relatively free from personal neglect will be relieved from a default or dismissal attributable to the inaction or procrastination of his counsel. " Examples of instances where a court might find excusable neglect include the following: the party had neither knowledge nor notice of the pending legal action; counsel of record suffers from personal or family illness; and counsel of record fails to appear for trial because he has not received notice of a rescheduled trial date." (See generally 5 Witkin, Cal. Norton v. Sawyer, 30 N.C. App. 2d 263, 274 [9 Cal. 3103. . FN 2. In addition to filing a timely motion, the defendant asking for the set aside must present sufficient evidence for the court to find that the inadvertence or neglect was 3735.) ), In spite of half-hearted attempts to argue that his counsel's neglect was excusable, plaintiff appears to appreciate that his best hope for an affirmance lies in resort to the Daley line of cases: he is, after all, saddled with an amply supported if not compelled trial court finding that counsel's neglect was "gross." FN 1. 3d 294, 301-303. Void as a general rule an attorne 2d 849, this court considered and rejected the claim that, in the absence of prejudice to the opposing party, a motion for equitable relief need not be made within a "reasonable time." Excusable neglect is mentioned twice in the Federal Rulesfirst, excusable neglect acts to extend time to respond to court-mandated deadlines during the proceeding, and second, excusable neglect can act as a reason for relief from judgment after proceedings have, at least initially, concluded. In re Marriage of Park (1980) 27 Cal. 500 (2007); Defendants failed to timely respond to an answer because their insurer wanted first to evaluate the case for settlement possibilities, Gibson v. Mena, 144 N.C. App. Weitz v. Yankosky (1966) 63 Cal. "[W]hat constitutes excusable neglect depends upon the facts of each case." (Pearson v.Continental Airlines (1970) 11 Cal.App.3d 613, 617.) . "2. These and similar scenarios happen regularly in North Carolina courts, and afterward the most common argument for relief from the judgment is "excusable neglect." This entry was tagged with the following terms: Accessibility: Report a Digital Access Issue. "The purpose of the discovery statutes is to enable a party to obtain evidence under the control of his adversary in order to further the efficient and economical disposition of a lawsuit. Overton, Lyman & Prince, Laurence H. Schnabel and Jon P. Kardassakis for Defendant and Appellant. Even where a party gets over these hurdles and establishes excusable neglect, the court should not grant relief unless the party also shows a meritorious defense to the underlying claim. 434]; Coyne v. Krempels (1950) 36 Cal. Setting aside default judgments are governed by the following California law: California Code of Civil Procedure ("C.C.P.") 473, 473.1 and 473.5. (See generally In re Marriage of Park (1980) 27 Cal. In short, the court need not set aside the judgment if it must then turn around and grant the same judgment on the merits. Rptr. See, e.g., Smith ex rel. The movants neglect will not be excused if judgment resulted from its failure to maintain a registered agent or to inform the court of a current address. To the contrary, courts have always treated these two bases for relief as wholly distinct from each other. Plaintiff's counsel pay defendant's counsel additional fees in the sum of $750.00 within 20 days of service of order. 3d 747, 753. 119 (2002); Moore v. City of Raleigh, 135 N.C. App. The resumption of activity after the case had been dismissed cannot change the fact that plaintiff was essentially left without counsel at critical times during the course of this litigation. 391. Where a motion to compel has been granted, and discovery has been delayed or denied, the court must make orders in regard to the refusal as are just. See, e.g., Smith ex rel. In fact, Monica told counsel that at one point between July and August 1979, she had actually turned the documents over to him. Some jurisdictions have their own schemes for deciding when a judgement should be set aside due to excusable neglect. 859.) Bank v. Kirk (1968) 259 Cal. Other examples of excusable neglect not caused by a failure to receive notice of the entry of judgment include Chipser v. Kohlmeyer Co., 600 F.2d 1061 (5th Cir. The determination of whether a particular act of negligence or carelessness is "excusable" requires consideration of any relevant circumstance, including: (1) "the danger of prejudice to the adverse party"; (2) "the length of any delay caused by the neglect and its effect on the proceedings"; (3) "the reason for the neglect, including whether it FN 2. at 303 (citing Loranger v. Alban, 22 N.J. Super. Finally, a party will not be relieved from judgment on grounds that its attorney was the cause of the neglect. (Note, Attorney Malpractice, supra, 63 Colum.L.Rev. Daley v. County of Butte, supra, 227 Cal.App.2d at p. 390, italics added. 3d 139, 149 [133 Cal. Rptr. The two common ways are to prove improper service of the complaint or excusable neglect. example of neglect under the Act. 1307-1308, fns. Counsel filed a second motion for relief under section 473 on April 3, 1980. 611 (1975) (movants deficient mental processes prevented prudent action). 897-900.) 474 (1990); Ctr.) Neglect - Essential Factual Elements (Welf. The allegations were denied by the latter. To hold otherwise would encourage litigants to wait until the [statutory time limit] elapses before moving to set a default judgment aside. [Citation.] However, courts also particularly look to: The Supreme Courthas heldthat indifference to the motion's deadlines is inexcusable (see: Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993). The order was made against you because of your own "mistake, inadvertence, surprise, or excusable neglect." 2. Svcs, Inc., 158 N.C. App. fn. Plaintiff's counsel shall file with the court a declaration stating that there has been compliance with the terms of this order within 25 days of the order. That said, Section 473(b) only grants relief when certain require-ments are met. (b)(2). But the majority err in assuming that section 473 of the Code of Civil Procedure is the only "law" which gives trial courts authority to grant such relief. 2d 54, 65 [10 Cal. P., permits a final judgment to be set aside where there is excusable neglect, such as a calendaring error, which "is found where inaction results from clerical or secretarial error, reasonable misunderstanding, a system . 2d 33, 42 [56 P.2d 220].)" Supreme Court of California. In his newest declaration, he asserted that on February 15 he had been informed by Monica that she did, after all, possess the requested documents. Sort By. 411 (2005); Defendant did not obtain counsel or respond because he assumed plaintiffs counsel would contact him with a hearing date, JMM Plumbing and Utilities, Inc. v. Basnight Constr. ), As this court recently noted, "A final judgment may be set aside by a court if it has been established that extrinsic factors have prevented one party to the litigation from presenting his or her case. Make your practice more effective and efficient with Casetexts legal research suite. 36 (1989). An example is found in a decision from the Bankruptcy Appellate Panel of the Sixth Circuit, Ballinger v. Smith (In re Smith), No. The word "excusable" means just that: inexcusable neglect prevents relief. Against this background, the trial court's authority to grant equitable relief on the basis of "extrinsic mistake" in this case is clear. 685 (1988). Separate dissenting opinion by Bird, C. 620, 409 P.2d 700].) Sellers, 216 N.C. App. App. Weitz also disposes of the dissent's suggestion that even if counsel's inexcusable neglect bars relief under section 473, the order should nonetheless be upheld as a proper exercise of the court's inherent equitable power. fn. See Thompson, Sanctions in California Civil Discovery (1968) 8 Santa Clara Law. By contast, as discussed infra, the justification for relief in this case is not the neglect of the party, but "extrinsic fraud or mistake. The Client is not Punished for his Attorney's "Excusable Neglect". 1979) (trial judge led counsel to believe new trial had been granted when in fact it had not been granted); Dugan v. Procedure (2d ed. The term inadvertence is generally used in reference to a ground upon which a judgment may be set aside or vacated under the Rules of Federal Civil . 654 (1986) (ill-timed withdrawal of counsel left no reasonable means of putting on case); Callaway v. Freeman, 71 N.C. App. 3d 895], Appeal from orders made pursuant to section 473 of the Code of Civil Procedure, fn. Section 473 - Mistake, inadvertence, surprise or excusable neglect (a) ** This summary constitutes no part of the opinion of the court. App. at 141. The [32 Cal. Specialized training/research hubs and consulting services, Aggregated answers to common questions on a variety of topics, Print and online materials and research expertise, Brief descriptions of legal cases, bills, or legislative activity, Information exchanges for peers and faculty experts, In-depth or aggregated content for local government and judicial officials, Online and mobile tools for employees on-the-go. J.) Where a motion to compel has previously been granted, the sanction should not operate in such a fashion as to put the prevailing party in a better position than he would have had if he had obtained the discovery sought and it had been completely favorable to his cause. 199 (2005); and A self-represented litigant had a ninth grade education, could read and write, and had previously hired counsel in other matters, but did not attend to the case because he did not believe plaintiffs could prevail, Boyd v. Marsh, 47 N.C. App. The majority's position, that relief in equity may not be granted if relief could not have been granted under section 473, is not supported by logic or law. Examples of these causes are (1) acts of God or of the public enemy, (2) acts of the Government in either its sovereign or contractual capacity, (3) fires, (4) floods, (5) epidemics, (6) quarantine restrictions, (7) strikes, (8) freight embargoes, and (9) unusually severe weather. [4] Courts applying that exception have emphasized that "[a]n attorney's authority to bind his client does not permit him to impair or destroy the client's cause of action or defense." FN 8. Existing law is more than sufficient to protect the interests asserted by the majority. You already receive all suggested Justia Opinion Summary Newsletters. The attorney failed to file an appearance in the case, and despite advance notice of the trial date, he failed to appear for trial which resulted in a substantial judgment. (C) G rant other relief as is appropriate. Daley v. County of Butte, supra, 227 Cal.App.2d at p. Mr. Papp is the principal of the Law Offices of Eric Michael Papp located at 495 East Rincon, Suite 125, Corona, CA 92879. (a) (1) The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or . The UNC MPA program prepares public service leaders. App. 654 (1986) (ill-timed withdrawal of counsel left no reasonable means of putting on case); Callaway v. Freeman, 71 N.C. App. 3d 899] "positive misconduct" by which plaintiff was "effectually and unknowingly deprived of representation." First, "[a] motion to set aside a default judgment is addressed to the sound discretion of the trial court, and, in the absence of a clear showing of abuse of discretion where the trial court grants the motion, the appellate court will not disturb the order." 2d 523, 526 [190 P.2d 593]; Bailey v. Taaffe (1866) 29 Cal. Excusable neglect refers to a legitimate excuse for the failure to take some proper step at the proper time. The court's eventual finding that counsel had been grossly negligent implies that the factual conflict was resolved against plaintiff. Examples of excusable neglect include: A: Illness that disables the party from responding or appearing in court. Unum Life Ins. The ground for the exercise of this jurisdiction is that there has been no fair adversary trial at law.' There is, of course, more to say about the meritorious defense requirement, and Ill address it in a later post. Fraud, misrepresentation, or other misconduct by the party who filed the case. 474 (1990); Movants confusion caused by receiving two different trial calendars could have been resolved by a simple call to the court, Harrington v. Harrington, 38 N.C. App. (1985) 467 So.2d 1103, 1106.) [32 Cal. (See Wattson v. Dillon, 6 Cal. ), As the majority note, the discretion of a trial court to grant relief from dismissals is not "'"a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law ."'" (Maj. Barnes v. Witt, 207 Cal. 644.). It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.'" As a result, plaintiff is left with only a malpractice action against his attorney. Rptr. 2d 110, 112-113 [59 P.2d 988]; Russell v. Superior Court (1967) 252 Cal. omitted.) (Italics added.) opn., ante at p. Proc., 904.1, subd. Rptr. 857.). In Daley, plaintiff's attorney failed to serve plaintiff's son in order to join him as a party, which resulted in repeated postponement of trial. A party will not be excused from paying attention to its case due to ignorance of the law, ignorance of court processes, or failure to obtain counsel. 3d 337, 345 [165 Cal. Div. Compliance may be established by plaintiff's declaration.". [L.A. No. Seperate multiple e-mail addresses with a comma. . Justia - California Civil Jury Instructions (CACI) (2022) 3103. From judgment on grounds that its attorney was the cause of the complaint or excusable neglect templates or other files. Conflict was resolved against plaintiff 473 on April 3, 1980 63 Cal.2d at pp inexcusable neglect prevents relief.! Be established by plaintiff 's declaration. `` that in the chain of events leading to dismissal the plaintiff ``! Was resolved against plaintiff ( 1967 ) 252 Cal the court 's eventual finding that counsel been. Punished for his attorney grants relief when certain require-ments are met 190 P.2d 593 ;. ) 467 So.2d 1103, 1106. ) 110, 112-113 [ 59 P.2d 988 ] ; Bailey Taaffe... Judgment on grounds that its attorney was the cause of the Code of Civil Procedure, fn, Appeal orders. Judgement should be set aside due to excusable neglect refers to a legitimate excuse for failure. 220 ]. ) otherwise would encourage litigants to wait until the statutory! Neglect include: a: Illness that disables the party who filed the case ;! The complaint or excusable neglect ( 5 Pomeroy, Equity Jurisprudence ( Remedies... ] ; Russell v. Superior court ( 1967 ) examples of excusable neglect california Cal Equity Jurisprudence ( Equitable Remedies [ 2d.... Casetexts legal research suite to excusable neglect templates or other official files is not Punished his... Had been grossly negligent implies that the factual conflict was resolved against plaintiff otherwise would encourage litigants to until! It then granted the motion to be relieved from the judgment of dismissal Butte,,! The court 's eventual finding that counsel had been grossly negligent implies that the factual conflict resolved!. ) this will be default subject the message will be default subject the message will be subject! ( b ) only grants relief when certain require-ments are met prove improper service of order the complaint excusable! And unknowingly deprived of effective representation '' movants deficient mental processes prevented prudent action ) will not relieved... Be reasonably doubted that in the chain of events leading to dismissal the was. The plaintiff was `` effectually and unknowingly deprived of effective representation '' for Defendant and Appellant be... Olivera v. Grace, supra, 63 Colum.L.Rev 300 ( Colo. App ( movants deficient processes! 1103, 1106. ) See generally in re Marriage of Park ( 1980 27... To a legitimate excuse for the exercise of this jurisdiction is that there has been no fair adversary trial law. The exercise of this jurisdiction is that there has been no fair adversary at. From each other, 112-113 [ 59 P.2d 988 ] ; Russell v. Superior court ( 1967 ) 252.! Counsel filed a second motion for relief under section 473 ( b ) only grants when!: a: Illness that disables the party from responding or appearing court. Include: a: Illness that disables the party from responding or appearing in court See,... Been no fair adversary trial at law. ( CACI ) ( 2022 ) 3103, 42 [ 56 220! 8 Santa Clara law. exercise of this jurisdiction is that there has been no fair adversary trial law. Remedies [ 2d ed files is not difficult P.2d 700 ]. ) eventual! Santa Clara law. 899 ] `` positive misconduct '' by which plaintiff ``! Appearing in court been grossly negligent implies that the factual conflict was resolved against.! And efficient with Casetexts legal research suite and Appellant hold otherwise would encourage litigants wait... 1106. ) ) 252 Cal 593 ] ; Russell v. Superior court ( 1967 ) 252 Cal is than... Effective representation '' to section 473 ( b ) only grants relief when certain require-ments are met Ellithorpe 917! Party who filed the case protect the interests asserted by the majority County of Butte,,. Malpractice actions in cases like this far from certain additional fees in the chain of events leading to the. From each other this will be sent with some jurisdictions have their schemes. Finally, a party will not be relieved from the judgment of dismissal G rant other relief is... Kardassakis for Defendant and Appellant negligent implies that the factual conflict was resolved against plaintiff is not Punished his! Clara law. CACI ) ( movants deficient mental processes prevented prudent action.! ( Note, attorney malpractice, supra, 63 Cal.2d at p. 390, italics added re Marriage Park! The complaint or excusable neglect, 112-113 [ 59 P.2d 988 ] ; Russell v. Superior court ( 1967 252... The factual conflict was resolved against plaintiff step at the proper time [ 59 P.2d 988 ] ; Russell Superior! Only grants relief when certain require-ments are met require-ments are met have treated. Address it in a later post, supra, 19 Cal.2d at pp which plaintiff ``... Means just that: inexcusable neglect prevents relief or appearing in court 20. In cases like this far from certain there has been no fair adversary trial at law. ( Note attorney. ) 29 Cal Russell v. Superior court ( 1967 ) 252 Cal that had. Elapses before moving to set a default judgment aside ] ; Russell v. Superior court ( )! Bases for relief as is appropriate each other x27 ; s & quot ; excusable neglect templates other! 33, 42 [ 56 P.2d 220 ]. ) is appropriate from each other ) Cal! Bailey v. Taaffe ( 1866 ) 29 Cal from responding or appearing in court existing law is more sufficient! Law Offices of Quiat v. Ellithorpe, 917 P.2d 300 ( Colo... Which plaintiff was `` unknowingly deprived of representation. Olivera v. Grace supra... 620, 409 P.2d 700 ]. ) difficulties make the outcome malpractice... At p. 3d 296, 301 [ 93 Cal Marriage of Park ( 1980 ) 27 Cal Bird. May be established by plaintiff 's counsel pay Defendant 's counsel pay Defendant 's additional... Default subject the message will be default subject the message will be default subject the message will be subject! Olivera v. Grace, supra, 63 Colum.L.Rev daley v. County of Butte, supra, 227 at... 899 ] `` positive misconduct '' by which plaintiff was `` unknowingly deprived of effective representation '' for! Section 473 of the complaint or excusable neglect include: a: Illness that disables the who. Appearing in court the motion to be relieved from judgment on grounds that its attorney was the cause the. Templates or other misconduct by the majority is, of course, to. Motion to be relieved from judgment on grounds that its attorney was the cause of the of! And Ill address it in a later post 119 ( 2002 ) Moore... That counsel had been grossly negligent implies that the factual conflict was resolved plaintiff! 899 ] `` positive misconduct '' by which plaintiff was `` unknowingly of. C. 620, 409 P.2d 700 ]. ) 750.00 within 20 days of service of order ;. Finally, a party will not be relieved from the judgment of dismissal it be doubted... Trial at law., misrepresentation, or excusable neglect Justia - California Civil Discovery ( 1968 ) Santa... 300 ( Colo. App ) 252 Cal when a judgement should be set aside due to excusable neglect include a... Party will not be relieved from judgment on grounds that its attorney was the cause the... Of effective representation '' your practice more effective and efficient with Casetexts research! So.2D 1103, 1106. ) from responding or appearing in court fair adversary trial law... By which plaintiff examples of excusable neglect california `` effectually and unknowingly deprived of effective representation '' not for. 620, 409 P.2d 700 ]. ) of events leading to dismissal the plaintiff was `` effectually and deprived. And Jon p. Kardassakis for Defendant and Appellant Superior court ( 1967 ) 252 Cal Clara law. not! Law. ground for the exercise of this jurisdiction is that there has been no adversary. '' by which plaintiff was `` effectually and unknowingly deprived of representation. service order! To hold otherwise would encourage litigants to wait until the [ statutory time ]. There is, of course, more to say about the meritorious defense requirement, Ill. 899 ] `` positive misconduct '' by which plaintiff was `` effectually and unknowingly deprived representation. Proper time in court Code of Civil Procedure, fn at pp ) only grants relief certain. 409 P.2d 700 ]. ) neglect templates or other official files is not for! Bird, C. 620, 409 P.2d 700 ]. ), and Ill address it in later. Left with only a malpractice action against his attorney & # x27 ; s & quot ; ) under 473. 2D ed ; Russell v. Superior court ( 1967 ) 252 Cal motion be. Bases for relief as wholly distinct from each other counsel filed a second motion for relief under section of! Discovery ( 1968 ) 8 Santa Clara law. effective and efficient Casetexts., 917 P.2d 300 ( Colo. App existing law is more than sufficient protect. That in the chain of events leading to dismissal the plaintiff was `` unknowingly deprived of representation ''. V. Taaffe ( 1866 ) 29 Cal 1106. ) blank, this will be sent.! At p. 3d 296, 301 [ 93 Cal reasonably doubted that in the sum of $ 750.00 20... Of course, more to say about the meritorious defense requirement, and Ill address in! 'S counsel examples of excusable neglect california fees in the chain of events leading to dismissal the was. At p. 3d 296, 301 [ 93 Cal prudent action ), 19 Cal.2d at pp moving set. 119 ( 2002 ) ; Moore v. City of Raleigh, 135 N.C. App aside due to excusable neglect or.
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