Thursday, October 19, 2017
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Appeals Court Faults Unpaid Lawyer for ‘Abandoning’ Client
Says Litigant, Told in January 2015, to Find Other Counsel, and Who Wound Up Appearing in Pro Per at Hearing In October 2015, Was Entitled to Continuance; Subsequent CCP §473 Motion Should Have Been Granted
By a MetNews Staff Writer
The Court of Appeal has held that a woman who stopped paying her lawyer in January of 2015, was told by him she should look for other counsel, was advised in June or July that he had to withdraw, and delayed until Sept. 10 in returning an executed substitution of attorney form he had provided a month earlier, should have been granted a continuance of an Oct. 7 hearing on a motion because she was unrepresented.
The San Francisco Superior Court on Oct. 7 heard the defense motion for summary judgment against her on her cross-complaint, took it under submission, and subsequently granted it.
Justice Stuart R. Pollak of the First District’s Div. Three wrote the unpublished opinion, filed Tuesday, reversing a May 27, 2016 order denying Cecelia Kennedy’s motion for relief from the summary judgment in favor of cross-defendant Farhad Zaghi.
‘Excusable Neglect’ Established
Kennedy succeeded in showing “excusable neglect,” warranting relief under Code of Civil Procedure §473(b), Pollak said. He wrote:
“Summary judgment was entered after Kennedy’s attorney failed to work on the case for two months and substituted out of the case days before opposition was due, leaving Kennedy on her own to seek a continuance in vain. We conclude that Kennedy’s attorney abandoned her at a critical juncture of the litigation and shall reverse the order denying relief.”
The motion for summary judgment was filed on July 15, 2015. Kennedy insisted that it was after the motion was filed that her attorney, San Francisco sole practitioner Michael Patrick Rooney, ceased providing legal services; he said in a declaration that it was “on or about late June 2015” that he “stopped work and informed Ms. Kennedy.”
Lawyer Announces Withdrawal
Rooney declared that on July 3, 2015, he “conveyed to Ms. Kennedy that I would have to withdraw,” in conformity with terms of the attorney fee agreement, noting that this was “well in advance of the motion for summary judgment oppositions coming due,” adding:
“I encouraged her to find other counsel to take over the case immediately.”
He said that after the motion was filed, he concluded that in light of his workload, he could not handle the opposition without hiring a lawyer to help him, which was not feasible in light of the “budgeting concerns that had emerged.”
Pollak commented:
“But, at that time, Rooney did not petition to withdraw, file a substitution of counsel, or seek a continuance of the summary judgment motion. Rooney remained attorney of record on the case through September 2015, during which time he spoke with other attorneys about taking the case.”
Kennedy acknowledged that in August 2015, Rooney “repeatedly asked me to sign a substitution of attorneys form,” but that she did not get it back to him with her signature until Sept. 10. The lawyer filed it five days later.
‘Inaction,’ ‘Procrastination’
Pollak declared:
“The result of Rooney’s inaction and procrastination was that Kennedy was effectively without counsel from the time Zaghi’s summary judgment motion was filed on July 15 until she reluctantly assumed her own representation on September 15, just days before opposition was due. Had Rooney promptly moved to withdraw from the case when the summary judgment motion was filed, the court would have been alerted to the situation and Kennedy’s legitimate need for a continuance to retain new counsel. Instead, he remained attorney of record for two months after the motion was filed, while taking no steps to prepare an opposition, and then substituted Kennedy into the case to seek a continuance on her own. The substitution just days before opposition was due was denounced by Zaghi as gamesmanship, as indeed it was. But the gamesmanship was on the part of Rooney, not Kennedy, who gambled that a ‘gracious’ trial court would grant a continuance to an unrepresented party.”
Kennedy’s motion for relief from the judgment in favor of the cross-defendant was accompanied by a proposed opposition to the motion. Zaghi argued that the proposed opposition is plainly inadequate to overcome the summary judgment motion.
Pollak declared that it “raises a number of potentially meritorious legal and factual issues that cannot be resolved without a careful review of the proffered evidence and an opportunity for rebuttal,” which, he said, is all that is necessary.
Allegations of Cross-Complaint
The cross-complaint alleges that Zaghi foreclosed on Kennedy’s commercial property in San Francisco in violation of identity theft statutes. Zaghi had lent her $550,000, secured by a deed of trust on the property; a third party, setting up an account in her name to which only he had access, appropriated all but $50,000 of the loaned money; Kennedy did not make a repayment.
She seeks damages from Zaghi. Her May 16, 2016 reply to Zaghi’s opposition to her motion for relief under §473(b) declares:
“Mr. Zaghi is not a victim, He is the one who victimized Ms. Kennedy.”
Lawyers Comment
Kennedy’s lawyer, Tiffany R. Norman, commented yesterday:
“Ms. Kennedy was the victim of identity theft which lead [sic] to the wrongful foreclosure of property she inherited from her parents. The Trial Court’s ruling made it so Ms. Kennedy would never have the opportunity to regain possession of the property. The Trial Court, being overworked, made a mistake. The Court of Appeal recognized that mistake. Now Ms. Kennedy can tell the Court about the wrongful foreclosure, and potentially regain possession the property, which her parents were so proud to leave to her.”
Rooney remarked:
“I was not a party to those proceedings, so I am unable to provide comment on them.
“However, I am glad that Ms. Kennedy will have her shot at her claims against Mr. Zaghi.”
The opinion said that after Rooney filed the substitution of attorney form, he “went on a one-month vacation and left Kennedy on her own to request a continuance.”
Rooney remarked:
“I am also very curious about this ‘month long vacation’ fantasy the court kept repeating. In reality I was right here working and never took any vacation. But again, since I was not a party to the proceedings I have no idea where that came from or why the court kept repeating it.”
Zaghi’s attorney, Nancy Johnson, did not respond to a request for comment.
The case is Kennedy v. Zaghi, A148645.
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