Friday, April 22, 2011
C.A. Overturns Sanctions Against Widow Abandoned by Lawyer
By SHERRI M. OKAMOTO, Staff Writer
The First District Court of Appeal yesterday ruled that the imposition of discovery sanctions against a widowed San Leandro woman who was being sued by her son, and had been abandoned by her lawyer, was an abuse of discretion.
In an unpublished decision, Div. Four concluded Hafijan Dean had been sufficiently diligent in monitoring her attorney, now-disbarred Walnut Creek practitioner David N. Stein, and should not have been penalized for Stein’s “egregious misconduct.”
Dean and her husband had established a living trust for the benefit of their five children, and transferred their San Leandro home into the trust in 2004. Dean’s husband died in 2005, and the following year, her son Hasim Dean sued her, seeking to enforce an alleged oral promise to devise the San Leandro residence to him, as his sole property, upon his parents’ deaths.
Hafijan Dean then retained Stein, who filed an answer to the complaint but failed to respond to discovery requests. He filed no opposition to Hasim Dean’s motions to compel, did not appear at hearings on these motions, and never complied with court orders compelling production.
Hasim Dean moved for terminating sanctions in December 2006, citing Stein’s “systematic pattern of discovery abuse.” In response, Stein filed an untimely declaration of fault in which he agreed to pay sanctions and asked for 30 days to bring the case into conformity with the discovery orders. Stein admitted that “[t]he failure to act timely was due entirely to my own mistake, inadvertence and neglect,” the exact nature of which was unstated.
The trial court judge denied the motion and gave Stein additional time to comply with the discovery orders, but cautioned that “failure to comply with this Order will very likely result in the imposition of terminating, issue, or evidentiary sanctions.”
When Stein still had not complied with the court’s orders by March 2007, Hasim Dean moved for issue and evidence sanctions. Stein filed a short, rambling declaration in opposition to the motion and did not appear at the hearing. The trial judge granted evidentiary sanctions precluding Hafijan Dean from offering any evidence denying her son’s claims stated in the complaint.
Hasim Dean later moved for summary judgment Stein filed no opposition, but he did request a continuance, claiming that he was suffering from “an anxiety disorder” which had required his hospitalization several times since October 2007.
The requested continuance was granted, but Stein never filed an opposition to the summary judgment motion or appear at the rescheduled hearing. In March 2008, the trial court granted summary judgment in favor of Hasim Dean. Stein was served with notice of entry of judgment but took no action in the case.
In August 2009, Hafijan Dean, represented by another attorney, filed a motion for an order setting aside the evidence sanctions and summary judgment upon assertions that Stein had abandoned her as a client, as he had other clients, and was facing disbarment for his misconduct.
State Bar records reflect that Stein was suspended from the practice of law shortly after judgment had been entered in Dean’s case and disbarred in 2009 following default proceedings in which the State Bar Court found that he committed 21 acts of misconduct in six consolidated cases.
Dean testified that she came to the United States from Fiji, and speaks very limited English. She claimed that Stein “assured [her] that he would call [her], as the case required,” and concealed his inaction from her. Her daughters also filed a declaration stating that Stein “never returned any of our calls in 2007 or 2008 other than to say that a court date was cancelled and his employee simply stated that he would call back.”
The trial court denied Dean’s motion, finding “the responsibility is on her in some part to do something and to also inquire, find out what’s going on and take some affirmative action to get her case squared away or find out what’s going on with her lawyer, make some inquiries, basically take some action.”
Justice Patricia K. Sepulveda disagreed with this assessment in her decision for the appellate court. She said the trial court had abused its discretion in denying equitable relief since Dean “showed a satisfactory excuse for not presenting a defense, the existence of a meritorious case, and diligence in seeking to set aside the judgment once the mistake was discovered.”
She noted that Stein “did almost nothing on the case after filing an answer to the complaint,” and “actively concealed facts about the litigation” from his client. Sepulveda posited that a “clearer case of positive misconduct by an attorney is hard to imagine.”
The justice acknowledged that Dean “could have been more vigilant,” but emphasized that “a client cannot be expected to ferret out attorney deception and should not suffer an adverse judgment if he or she fails to puncture an attorney’s veil of deceit.”
Presiding Justice Ignazio J. Ruvolo and Justice Maria P. Rivera joined Sepulveda in directing the case be remanded for further proceedings.
The case is Dean v. Dean, A127582
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