Quote of the Day - When I woke up this morning my girlfriend asked me, 'Did you sleep good?' I said 'No, I made a few mistakes.'
- Steven Wright
The Fourth Two in Riverside faced this "unremarkable" (their word, not mine) situation. Here's how the scenario played out:
We have your everyday contract dispute between SMS Supermarket Service and a service provider, Solv-All. Once SMS filed suit, the parties began to talk settlement. That's where the trouble began.
The parties engaged in a series of settlement negotiations and agreed several times to delay the time for Solv-All to respond to the lawsuit. Apparently, the negotiations stalled, and here's where the stories diverge. SMS says it told Solv-All to file an answer to the complaint and get to litigating the case. Solv-All, on the other hand, believed that the ball was in SMS' court to respond to its last settlement offer. Solv-All knew its deadline to answer was about to pass, but since SMS had granted extensions before, it would grant one again so the parties could continue to negotiate.
Whoops. In a major way. That's not what SMS thought, and promptly took Solv-All's default.
Game over for Solv-All. SMS refused to set the default aside, and was set to prove up its damages. All of them. Faced with certain defeat, Solv-All moved to set aside the default.
As most attorneys know, that's where the going gets tough. If, as here, the attorney who let the default get taken is at fault, then that attorney is the one who has to concede the mistake. The rules say that relief is mandatory if the attorney admits the mistake. As you can imagine, it's not an easy admission to make.
But as we all know, what the rules say must be is frequently not the case. At least that's the result that happened to the Solv-All attorney here who did admit to the mistake. The trial court ruled that the attorney's neglect was not excusable, and could not obtain relief.
Never fear, though. That's why we have appellate courts. This appellate court saw the light and relieved the Solv-All attorney (and his clients) from the default.
Now the case will get heard on the merits instead of being resolved through a technical, procedural victory - not form over substance.