Border v. Kuznetz

SAETA, J., Dissenting.

The majority opinion states the facts and the law admirably but, in my judgment, arrives at the wrong conclusion. Simply stated, is it an abuse of discretion to deny relief under Code of Civil Procedure section 473 to a litigant who files his statement listing witnesses and evidence on the day of trial rather than 45 days after the case is at issue? Under the facts of this case, my answer to this question is yes.

The applicable law is well stated in 5 Witkin, California Procedure (2d ed. 1971) page 3737 as follows: “(1) Policy Influencing Reversal. Where the lower court…