Tuesday, March 25, 2014
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Court of Appeal Reverses Dismissal of Action Based on Attorney Not Following the Rules
By a MetNews Staff Writer
The First District Court of Appeal yesterday reversed a judgment of dismissal entered in a dental malpractice action because the plaintiff’s attorney failed to attend a pre-trial conference and or to file papers required at the conference.
Div. Five, in an opinion by Presiding Justice Barbara Jones, said the order should not have been made in the first place, and should have been vacated after the lawyer filed an affidavit of fault.
The plaintiff’s attorney, Alfred O. Anyia of North Hollywood, is currently under a one-year disciplinary suspension based on failure to observe terms of his probation in connection with an earlier suspension. Anyia, who was admitted to practice in 1996, claimed he failed to attend the conference or to file papers required by a local rule because he was unfamiliar with the rules.
The name of the judge who dismissed an action by Anyia’s client, Grace Uwadiale, against Dr. Todd Makiyama, was not contained in the opinion, which was not certified for publication.
Jones wrote:
“We do not condone Anyia’s failure to familiarize himself and comply with the local rules. While we appreciate that Makiyama may have been prejudiced in lost time and expense due to plaintiff’s failure to appear, we must conclude the court erred by dismissing plaintiff’s case for the violation of local rule 5 where the violation was counsel’s fault, where there was a lack of evidence less drastic sanctions would have been ineffective, and where the court did not provide plaintiff with notice and an opportunity to be heard before the court dismissed the case.”
She went on to say that relief was mandatory under Code of Civil Procedure §473(b) because there was essentially a default for which the attorney, in an affidavit, took full responsibility. The jurist explained:
“Here, the court seemed to conclude plaintiff was entitled to discretionary—not mandatory—relief. The court was mistaken. Mandatory relief under section 473(b) was available because the dismissal was ‘procedurally equivalent to a default.’…Plaintiff and her attorney did not have an opportunity to appear and present evidence and argument in opposition to Dr. Makiyama’s request for dismissal. As a result, the dismissal of plaintiff’s action based on her counsel’s failure to comply with local rules was the procedural equivalent of a default and mandatory relief was available under section 473(b).”
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