The California Court of Appeals recently released a decision that upheld a trial court’s ruling to set aside their previous dismissal of an injury case filed by a woman who was hurt in an accident involving a passenger bus that was allegedly caused by the dangerous and reckless conduct of the bus driver. The plaintiff’s claim was initially dismissed after her attorney failed to respond to a motion to dismiss the case or attend the hearing to argue against it. However, the court set the dismissal aside after her attorney swore in a statement to the court that the mistake was his own fault. Using a provision that is relatively unique to California law, the court set aside the dismissal without evaluating the attorney’s failure to respond to the motion or attend the dismissal hearing. Since the appellate court upheld the trial court’s decision, the plaintiff will be able to have her day in court, and her claims against the defendant will proceed toward a possible settlement or trial.
The plaintiff in the case of Gee v. Greyhound is a woman who was hurt when the passenger bus on which she was traveling was involved in a crash that she blamed on the bus driver. After the accident, she consulted an attorney and filed a personal injury lawsuit against the company operating the bus as well as the driver, seeking damages for the injuries she sustained in the crash. In response to the lawsuit, the defendant sought to change the venue of the claim to another county where other plaintiffs had filed lawsuits based upon the same incident, and their request was granted. In addition to the venue change, the plaintiff was ordered to pay certain fees related to the change of venue, which her attorney failed to do.
The Plaintiff’s Attorney Failed to Respond to a Motion to Dismiss
After the plaintiff’s attorney failed to pay the fees as ordered, the defendant requested that the case be dismissed. The plaintiff’s attorney did not respond to the motion and did not attend the hearing or tell his client that her case may be dismissed. As a result of the failure to oppose the motion, the plaintiff’s claim was dismissed. Shortly thereafter, the plaintiff’s attorney realized that he had made an oversight and not noticed the motion or hearing to dismiss the case, and he requested that the dismissal be set aside under a state law provision that required dismissals resulting from attorney error by oversight be set aside under such circumstances.
The trial court granted the motion, accepting the attorney’s affidavit stating that he made a mistake that resulted in his client’s case being dismissed. The defendant appealed the trial court’s order setting aside the dismissal of the plaintiff’s case, arguing that it was procedurally improper and that the plaintiff’s attorney did not have an adequate excuse to justify setting aside the dismissal. On appeal, the high court pointed to the mandatory nature of California’s law regarding setting aside dismissals resulting from attorney mistakes and quickly rejected the defendant’s claims. The defendant’s response may have been effective in a state without a mandatory provision to set aside orders entered upon an attorney’s mistake, but California law is clear on the question. As a result of the recent ruling, the plaintiff’s claim will proceed at the district court toward a settlement or trial.
New Mexico Law Concerning Dismissals or Judgments Resulting from Attorney Mistakes
Unlike the statutory provision applied by the California Court of Appeals in the Gee case, New Mexico does not have a mandatory provision that sets aside a dismissal or default judgment entered against a party based on a mistake made by their attorney for which the party has no responsibility. Because of this distinction, it is especially important for New Mexico accident victims to consult and retain a competent and diligent truck accident attorney after they suffer an injury. New Mexico Rule of Civil Procedure 1-060(b) does allow for a final judgment, including a dismissal or default judgment, to be set aside for various reasons, including a party or their attorney’s excusable neglect, as well as “any other reason justifying relief from the operation of the judgment,” but the application of this provision to protect an accident victim’s right to relief is not mandatory, and neither district courts nor appellate courts in the state are required to implement it in the event that an attorney makes a mistake deemed inexcusable, regardless of the injustice that results to their client.
Contact a New Mexico Truck Accident Lawyer to Review Your Case
If you or a family member has been in an accident involving a passenger bus or semi-truck, the damage can be devastating, and the stakes are high. New Mexico law does not guarantee that plaintiffs will get their day in court, and hiring a knowledgeable New Mexico truck accident attorney can greatly increase your chance of making a successful case and obtaining the compensation you deserve. Contact the experienced New Mexico semi-truck accident attorneys at the Fine Law Firm to discuss your case. Our skilled and diligent attorneys will follow the proper procedures to preserve your right to relief. Contact us and speak to an attorney about your case today at (585) 989-3463 or sign up online and schedule a free consultation.
More Blog Posts:
Prevalence and Severity of New Mexico Underride Truck Accidents, New Mexico Personal Injury Lawyer Blog, November 28, 2016.
The Concept of Foreseeability in New Mexico Truck Accident Cases, New Mexico Personal Injury Lawyer Blog, December 14, 2016.