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Court of Appeal:
Relief From Judgment Properly Granted in Case Where Offer Written With Extra Digit
Opinion Says Adding Zero Is Mistake ‘Reasonable Person’ Could Make, ‘Hard to Believe’ Plaintiff Did Not Know That $100,000 Figure Was Typographical Error Given Prior Settlement Talks
By a MetNews Staff Writer
Div. One of the First District Court of Appeal held yesterday that there was no abuse in discretion in ordering relief from a judgment—under a code section allowing for vacatur in cases of “excusable neglect”—where the plaintiff quickly accepted a $100,000 offer, and filed for entry of judgment two weeks later, even though he had received an email within minutes of his acceptance indicating a clerical error of adding a “0” had been made.
At issue is Code of Civil Procedure §473(b), which provides, in relevant part, that “[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment…taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” The section calls for an application for relief to be filed within a “reasonable time, in no case exceeding six months after the judgment.”
Appealing the order was plaintiff Niceforo L. Avila Jr., an attorney who, in November 2022, filed a complaint against his former employer, John N. Kitta and Associates, and its office manager Hua Ma, asserting fraudulent misrepresentation and other causes of action.
The pleading alleges that the firm had left him, after his resignation, as counsel of record on seven active immigration cases and asserts:
“One of the reasons why Plaintiff resigned from the law firm is his discovery that Defendant Kitta has never appeared before an immigration court and that he is not allowed to appear before Immigration Courts because he did not seek registration before the Executive Office for Immigration Review….This information was deliberately withheld from Plaintiff just so the law office can continuously retain clients for immigration cases, use Plaintiff’s license to appear before immigration courts and keep on signing up clients for immigration matters.”
Settlement Offer
On Jan. 17 of this year, Avila submitted an offer pursuant to Code of Civil Procedure §998, seeking to settle the matter for $40,000. John Kitta (now deceased according to State Bar records) was the principal of the law firm and acted as counsel for the defendants.
Kitta responded by emailing Avila and attaching a document—which had been prepared by a legal assistant—offering Avila “$100,000” to settle the case. The offer was unsigned.
Just over one hour later, the plaintiff emailed Kitta, advising him that he accepted the offer. Minutes later, Kitta replied, saying:
“I just discovered a clerical error in my offer. The offer was meant to be $10,000, not $100,000. I would not make a higher counter offer. I will send you a correct copy of my offer. Please confirm if you are agreeable to this offer.”
Avila responded: “Your offer is accepted and that is binding.”
After judgment was entered, the defendants filed for relief under §473(b) and requested the vacatur of the judgment.
Alameda Superior Court Judge Victoria Kolakowski granted the motion on May 23, citing the 2002 California Supreme Court case of Zamora v. Clayborn which established that discretionary relief may be granted under the section where the “mistake is excusable and the party seeking relief has been diligent.”
Court of Appeal’s View
Justice Monique Langhorne Wilson authored the unpublished opinion affirming the order. Presiding Justice James M. Humes and San Mateo Superior Court Judge Elizabeth M. Hill, sitting by assignment, joined in the opinion.
Langhorne Wilson wrote:
“[A]ny reasonably prudent person could have made this typographical mistake. Kitta’s legal assistant declared that Kitta had instructed him to draft an offer for $10,000 and when drafting the offer he inadvertently added a zero. The erroneous addition of one extra zero when typing the offer amount was ‘a clerical or ministerial mistake that could have been made by anybody.’….While the mistake may have appeared obvious had the legal assistant also spelled out the numbers, we cannot conclude that the failure to do so is inexcusable. Contrary to Avila’s contention, this is not a situation involving inexcusable conduct which fell below the professional standard of care.”
She continued:
“Avila also focuses on the particulars of the email which sent the offer. That Kitta emailed the offer to Avila and explained the rationale for the offer in the body of the email does not change the conclusion that the mistake was excusable. Kitta’s email did not reference the offer amount. The document which contained the erroneous $100,000 offer was an attachment to the email. That Kitta sent the email does not constitute evidence that he drafted the offer or reviewed it. ‘While counsel’s failure to review the document before sending it out was imprudent, we cannot say that his imprudence rendered the mistake inexcusable under the circumstances.’ ”
Diligent Efforts
Turning to diligence, the jurist said:
“After Kitta emailed Avila the offer, Avila replied just over one hour later advising he accepted the offer. Three minutes later, Kitta replied to Avila that he ‘just discovered a clerical error’ in his offer and explained the offer was meant to be ‘$10,000, not $100,000.’ Kitta explained he ‘would not make a higher counter offer.’ However, Avila filed the offer to compromise and notice of acceptance, obtained entry of judgment in his favor, and dismissed the action. Defendants filed the underlying motion only 10 days after the trial court entered judgment, less than one week after the court entered the request for dismissal, and within days of Avila serving notice of entry of the dismissal. This timing is reasonable and within the parameters of section 473(b).”
Unpersuaded that Avila was unfairly prejudiced by the order, Langhorne Wilson remarked:
“[Avila] states that when he accepted defendants’ offer he stopped gathering evidence and preparing for trial, which was set to commence six months later. Avila does not demonstrate, though, that he will not have the opportunity to do so as this case proceeds.”
She added: “Further, we find it hard to believe that Avila did not know, or at least suspect, that the $100,000 offer was a mistake. About two weeks before defendants’ offer, Avila had offered to settle for $40,000 with judgment entered in his favor. During a subsequent phone conversation, defendants’ legal assistant advised Avila that defendants were willing to offer $5,000 and inquired whether Avila would accept. Yet when defendants submitted their written offer later that same day, it was for $100,000— $60,000 more than Avila’s prior offer and $95,000 more than what defendants had earlier suggested. Also, Avila was aware the offer was unsigned…. Under these circumstances, Avila’s ‘rush to get approval of the settlement’ casts ‘doubt on [his] claim of innocence.’ ”
The case is Avila v. John N. Kitta and Associates, A170579.
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