Metropolitan News-Enterprise


Monday, January 5, 2009


Page 1


Court Imposes Opposition’s Costs on Negligent Attorney


By SHERRI M. OKAMOTO, Staff Writer


A San Francisco Superior Court judge committed an abuse of discretion by relieving the defendants in a tort action of responsibility for discovery violations without imposing the plaintiff’s costs upon the negligent defense attorney who caused the problem, the First District Court of Appeal has ruled.

Div. Four Wednesday instructed the trial court to order former Contra Costa County lawyer  Robert Florian DeSmet—who resigned from the State Bar in June with disciplinary charges pending—to pay compensatory legal fees and costs to a plaintiff who had sued DeSmet’s clients for wrongfully disposing of her personal property after evicting her from her rental home.

Carole Marasovic rented a home from Lun-Teh Yuen, Lun-Ming Yuen, and Lun-Shin Yuen. In 2002, the Yuens, represented by DeSmet, filed an unlawful detainer action against Marasovic.

The parties eventually negotiated a settlement and signed a stipulation for entry of judgment. The written stipulation provided that if Marasovic failed to vacate the premises by the agreed date, the plaintiffs would be entitled to entry of judgment and repossession of the house and that any claim for loss or damage to personal property left on the premises would “be determined by a small claims court action.”

When Marasovic did not vacate the premises, the Yuens filed the stipulation for judgment and Marasovic was evicted.

Her personal property remained in the house, and the Yuens admitted to disposing of some of the items despite Marasovic’s protestations. She then filed a claim against the Yuens for conversion, violation of statutory rights, negligence, and intentional infliction of emotional distress.

The Yuens again retained DeSmet, and the attorney filed an answer but never responded to discovery requests nor informed his clients of such requests, and took no other affirmative action in the case.

DeSmet’s failure to respond to discovery led the trial court to impose sanctions deeming Marasovic’s requests for admission admitted and baring the Yuens from presenting evidence at trial.

After learning of the sanctions and retaining new counsel, the Yuens filed a motion contending that the case should be transferred to the small claims court based on the parties’ stipulation, or in the alternative, moved for relief from the discovery sanctions.

In support of the motion for relief, DeSmet submitted a declaration attesting to his neglect and malpractice. DeSmet said he was suffering from depression and that his mental processes had been impaired by health problems and the stress of a divorce, and later tendered his resignation to the Bar.

The trial court granted the Yuens’ motion for relief, finding that the Yuens had been “victimized” by their attorney and that relief was necessary to prevent a miscarriage of justice.

It vacated the evidentiary sanctions, reopened discovery and continued the trial date, but directed assignment of the case to remain in the superior court.

Marasovic and the Yuens engaged in settlement negotiations, but Marasovic informed the trial court that her costs were a source of contention in the negotiations and requested an award of reasonable compensatory costs and fees from DeSmet.

Before the trial court ruled on Marasovic’s motion, the parties filed a request for dismissal of the action which expressly reserved Marasovic’s right to seek costs and fees from DeSmet.

At the hearing on Marasovic’s motion, the trial court found she was not entitled to recover compensatory legal fees and costs because, based on the stipulation from the unlawful detainer action, the dispute should have been litigated in a small claims court.

She appealed, and DeSmet did not file a response.

In an unpublished opinion for the appellate court, Justice Patricia K. Sepulveda explained that Code of Civil Procedure Sec. 473 permits a trial court to grant relief upon a showing of attorney mistake, inadvertence, surprise, or excusable neglect, and only mandates relief upon a showing by attorney declaration of mistake, inadvertence, surprise or neglect.

Although DeSmet had filed a declaration of fault, Sepulveda noted that the trial court did not explicitly state that the declaration was the basis for its grant of relief, and reasoned that the trial court had therefore granted relief under Sec. 473’s discretionary relief provision.

A motion for mandatory relief must also specifically state that it seeks mandatory relief, Sepulveda added, and the Yuen’s motion did not.

However, Sepulveda concluded that DeSmet’s abandonment of his clients amounted to the severance of the attorney-client relationship and was grounds for discretionary relief.

 “Even if appellant was wrong to file her case in superior court, the fact remains that Attorney DeSmet never moved to transfer the case to small claims court and instead allowed appellant to incur costs prosecuting her case in the superior court while grossly neglecting his obligations to his clients,” Sepulveda reasoned. In such a situation, she wrote, the neglectful attorney should pay for his neglect.

Justices Timothy A. Reardon and Maria P. Rivera joined Sepulveda in her opinion.

The case is Marasovic v. Yuen (DeSmet), A119901.


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