Dohner v. Vazquez

Filed 3/1/07 Dohner v. Vazquez CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from an order of the Superior Court of Los Angeles County, Rolf M. Treu, Judge. Reversed with directions.

Law Offices of Robert E. Young and Robert E. Young for Plaintiff and Appellant.

No appearance for Defendants and Respondents.

______________________________

While serving time in prison, plaintiff retained counsel to file and pursue this action. But the attorney abandoned the case without informing his client. Counsel failed to attend a status conference, eventually resulting in dismissal of the case.

Plaintiff moved to set the dismissal aside based on abandonment. The trial court denied the motion, stating that plaintiff had not diligently prosecuted the action. Plaintiff sought reconsideration, arguing that the case was not subject to dismissal for lack of prosecution because it had not been on file for at least two years. The trial court denied the motion, concluding it had authority to dismiss the case even though it had been on file for less than one year.

We conclude that the trial court abused its discretion in denying plaintiffs motion to set aside the dismissal. Plaintiffs counsel abandoned the case without plaintiffs knowledge or consent. Counsel did not communicate with his client, making it virtually impossible for plaintiff to monitor the proceedings. Nor was the case properly dismissed for lack of prosecution given that so little time had passed since it had been filed. We therefore reverse.

I

BACKGROUND

Plaintiff retained Steven L. Szocs, Esq., to represent him in several matters, including this one.

On April 8, 2004, plaintiff filed this action against several defendants, alleging that while he was an inmate in state prison, defendants conspired to steal his money and file false police reports against him. Defendants answered the complaint with a general denial.

By order dated April 29, 2004, the trial court found that this case was related to another case also filed in 2004 (Dohner v. Sicari (Super. Ct. L.A. County, 2004, No. BC313757) and ordered the present case to be the lead case. The actions were not consolidated.

By order dated August 4, 2004, the trial court found that the two related cases were related to a 2002 case (Dohner v. Maldonado (Super. Ct. L.A. County, 2002, No. BC276449). The 2002 case was designated the lead case. Again, the cases were not consolidated. In the same order, the trial court disqualified defense counsel, apparently based on plaintiffs accusations that they were involved in the alleged conspiracy against him. The court postponed the effect of the disqualification order until a subsequent hearing on September 8, 2004. Discovery was stayed by stipulation.

At the September 8, 2004 hearing, the trial court gave defendants until January 10, 2005, to obtain new counsel. Discovery by and against defendants was stayed until that time or until defendants obtained new counsel, whichever came first. By order dated January 10, 2005, as part of a nonappearance case review, the trial court scheduled a status conference for February 10, 2005, in this case. The clerk of court mailed the order to Szocs, other counsel, and the individual defendants.

Attorney Szocs did not appear at the status conference. The trial court issued an order to show cause (OSC) re dismissal against plaintiff and his counsel for failure to appear this date and scheduled a hearing on the OSC for March 14, 2005. The clerk mailed the OSC to all counsel. Szocs did not appear at the hearing. The trial court dismissed the case with prejudice. The order was mailed to Szocs with instructions that Plaintiff [is] to give notice.

On September 1, 2005, plaintiff, in propria persona, filed a motion to set aside the dismissal. The motion was supported by declarations from four individuals: plaintiff, two attorneys (other than Szocs) who assisted plaintiff in various legal matters, and plaintiffs business assistant. All of the evidence was to the same effect. Plaintiff was incarcerated and depended on people outside the prison system to supervise his legal affairs. Szocs had refused to tell the declarants about the status of this case, had abandoned the case, had failed to turn over the case file notwithstanding repeated demands to do so, and would not substitute out of the litigation. Plaintiff had paid all of Szocss bills (over $19,000 for work on several matters), so there was no issue of lack of payment. Plaintiff first learned that the case was in peril of being dismissed when, after receiving case prints from the clerks office, he realized Szocs had failed to appear in response to the OSC. Later, plaintiff sent Szocs a letter asking that he execute an attorney affidavit of fault to support the motion to set aside the dismissal. (See Code Civ. Proc.,  473, subd. (b).) Szocs did not do so.[1]

Defendants opposed the motion, arguing that, because Szocs did not file an attorney affidavit of fault, plaintiffs only recourse was to sue Szocs for malpractice.

At a hearing on October 21, 2005, in which plaintiff appeared by telephone, the trial court denied the motion, stating that the case had been ongoing for over three years, yet it appears little progress has been made. . . . [P]laintiff allowed his case to languish with unresponsive counsel for eight months before the order of dismissal was even issued . . . . [I]t appears that Plaintiff is a sophisticated litigant who has an attorney [other than Szocs] to coordinate and interact with several attorneys and law firms that represent [Plaintiffs] interests. The trial courts order was mailed to plaintiff at the metropolitan detention center in Los Angeles, where he had been transferred.

One week later, plaintiff filed a motion for reconsideration in the lead related case, but failed to file papers in this one. (See  1008, subd. (b).) Plaintiff pointed out that, contrary to the courts prior order, the present case was filed on April 8, 2004, less than one year before its dismissal. Further, discovery in this case had been stayed from August 4, 2004, to January 10, 2005  five of its 11 months  after defense counsel was disqualified. Finally, plaintiff argued that the trial court had no authority to dismiss the case for lack of prosecution given its short time on the docket. (See  583.410,[2]583.420, subd. (a)(2)(B)[3]; Cal. Rules of Court, former rule 372(a)[4].)

By order dated November 18, 2005, the trial court informed plaintiff that it could not consider his motion for reconsideration because no date for hearing had been reserved, and the motion needed to be filed under the case number for this case, not just the lead related case. Plaintiff complied with the order but scheduled the hearing on a holiday. The trial court continued the hearing until February 28, 2006.

At the hearing, plaintiff appeared by telephone. The trial court denied the motion for reconsideration on the grounds that (1) in denying the section 473 motion, the court simply [did] not believe the [plaintiffs] claim of mistake, and (2) the court had the discretion to dismiss a case for lack of prosecution where the case has been on file for less than two years. Plaintiff filed an appeal from the trial courts denial of his section 473 motion.

II

DISCUSSION

Absent an attorney affidavit of fault, we review a trial courts decision under section 473, subdivision (b) for an abuse of discretion. (See Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1354.) To obtain relief under that statute, the evidence must show that the dismissal of the action was the result of the clients or the attorneys mistake, inadvertence, surprise, or excusable neglect. ( 473, subd. (b).)

[A]ny neglect of the attorney is imputed to the client, who has the burden on the motion of showing this neglect was excusable. To determine whether the mistake was excusable, the court will inquire whether the same error might have been made by a reasonably prudent person under the same or similar circumstances. . . . . . . . Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.

An exception to this rule allows relief where the attorneys neglect, although inexcusable, was so extreme as to constitute misconduct effectively ending the attorney-client relationship. Abandonment may afford a basis for relief, at least where the client is relatively free of fault, but performance which is merely inadequate will not. In Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 898901 [], the court found relief under section 473 was not warranted where the attorney did not abandon the client, but rather simply represented the client ineffectively. Contrast this with Buckert v. Briggs (1971) 15 Cal.App.3d 296, 301302 [], where the trial judge was found to have properly vacated judgment against the plaintiffs after their attorney not only failed to inform them of the trial date but also failed himself to appear at trial. . . . For the exception to apply, the attorneys misconduct must be sufficiently gross to effectively abrogate the attorney-client relationship, thereby leaving the client essentially unrepresented at a critical juncture in the litigation. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 682683.)

That is what happened here. Szocs effectively ended the attorney-client relationship by failing to communicate with his client, twice failing to appear in court (the second time under threat of dismissal), refusing to turn over the case file, failing to substitute out, and refusing to talk about the case status to attorneys and others who were trying to assist plaintiff  all while plaintiff was incarcerated. In light of plaintiffs confinement, he was especially dependent upon Szocs to prosecute the case diligently and was particularly susceptible to the consequences of abandonment. There was little plaintiff could do but contact others on the outside, including attorneys, and enlist their help. That is what he did. But Szocs remained essentially incommunicado.

Nor did the trial court properly exercise its discretion in dismissing the case for lack of prosecution. For one thing, the case had been on file for less than one year, not over three years when the trial court dismissed the action for Szocss failure to appear at the status conference. By statute, dismissal for lack of prosecution is expressly permitted only if the case has not been brought to trial within two years after it was filed. (See  583.410, 583.420, subd. (a)(2)(B); Cal. Rules of Court, former rules 372(a), 373(e).) It is thus questionable whether the trial courts inherent power to dismiss an action for delay in prosecution ( 583.150) can be exercised contrary to this two-year limitation. (See Lyons v. Wickhorst (1986) 42 Cal.3d 911, 915 [a minimum delay of two years is required before a trial court can exercise its discretionary dismissal powers].) But, assuming the trial court had the discretion to dismiss the case for lack of prosecution, it abused that authority. The delay here  to the extent there was any  did not warrant dismissal. The case was filed in April 2004. A motion to disqualify defense counsel soon followed and was granted. Discovery was stayed from August 2004 to January 2005 due to the disqualification. And Szocs abandoned the case one month later, in February 2005. Plaintiffs incarceration left him with little choice but to trust Szocs to pursue the case as vigorously as possible and to appear before the court as ordered.

Accordingly, the trial court erred in dismissing the case. On remand, the trial court shall restore the case to the civil active list.

III

DISPOSITION

The order of dismissal is reversed. On remand, the trial court shall restore the case to the civil active list. Appellant is entitled to costs on appeal.

NOT TO BE PUBLISHED.

MALLANO, Acting P. J.

We concur:

ROTHSCHILD, J.

JACKSON, J.*

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[1]If Szocs had submitted an affidavit of fault, indicating that the dismissal was the result of his mistake, inadvertence, surprise, or neglect, the trial court would have had no choice but to grant the motion. (See Code Civ. Proc.,  473, subd. (b); SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 516517.) All further section references are to the Code of Civil Procedure.

[2]Section 583.410 states: The court may in its discretion dismiss an action for delay in prosecution pursuant to this article . . . if to do so appears to the court appropriate under the circumstances of the case.

[3]This subdivision provides that [t]he court may not dismiss an action pursuant to this article for delay in prosecution except after one of the following conditions has occurred: [] . . . [] . . . Two years after the action is commenced against the defendant if the Judicial Council by rule . . . so prescribes for the court . . . .

[4]As provided by the Judicial Council in the California Rules of Court, former rule 372(a), now rule 3.1340(a): The court . . . may dismiss an action under Code of Civil Procedure sections 583.410583.430 for delay in prosecution if the action has not been brought to trial or conditionally settled within two years after the action was commenced against the defendant.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.