Is Lawyers Reliance on Adversary's Statement Considered Negligence ?
In DeYoung v. Del Mar Thoroughbred Club (1984) 159 Cal. App. 3d 858 206 Cal. Rptr. 28, the potential plaintiff was informed by a representative of the race track where she fell that the track was solely responsible for the injury.
The DeYoung court held it was unreasonable for the claimant's counsel to interpret the statement of the track's representative as meaning no other entity had any responsibility for the injury.
Rather, the claimant and her counsel should have conducted an investigation. Reliance on an adversary's statement in the face of a statute of limitations is inexcusable neglect. (Id. at pp. 864-865.)
Not every mistake excuses a default; it is "the reasonableness of a misconception leading to the failure to timely file under section 911.2 that determines whether relief will be granted under section 946.6." (DeYoung v. Del Mar Thoroughbred Club, supra, 159 Cal. App. 3d at p. 864.)
Excusable neglect is that neglect which might have been the act of a reasonably prudent person under the circumstances.
A person seeking relief must show more than just failure to discover a fact until too late; or a simple failure to act.
He must show by a preponderance of the evidence that in the use of reasonable diligence, he could not discover the fact or could not act upon it. (City of Fresno v. Superior Court (1980) 104 Cal. App. 3d 25, 32 163 Cal. Rptr. 807.)