Metropolitan News-Enterprise


Tuesday, August 21, 2018


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Court of Appeal:

Plaintiff Entitled to Continuance Despite Counsel’s Inexcusable Neglect


By a MetNews Staff Writer


A plaintiff whose attorneys were disqualified based on an ethical violation committed in their response to a defense summary judgment motion was entitled to a continuance of the hearing on the motion even though her new lawyers’ neglect to respond to the motion was not excusable, the Fourth District Court of Appeal has held.

The published opinion, penned by Presiding Justice Manuel A. Ramirez of Div. Two, was filed Friday. It comes in a wrongful termination and retaliation case brought by optometrist Lisa Levingston against Kaiser Foundation Health Plan, Kaiser Foundation Hospitals, and Southern California Permanente Medical Group.

Levingston initially retained Charles T. Mathews’s firm, the Mathews Law Group in Arcadia, to represent her. She later brought in Helmer Friedman LLP in Beverly Hills as co-counsel, for which Mathews works as of counsel.

To their response to the defendants’ summary judgment motion, Levingston’s attorneys attached a privileged document that Kaiser’s attorneys had inadvertently produced. Kaiser responded by moving to disqualify those firms.

Riverside Superior Court Judge John W. Vineyard disqualified Mathews and Helmer Friedman after a hearing. He also struck Levingston’s opposition to the summary judgment motion, and granted her a continuance in order to retain new counsel and file a new opposition.

New Counsel

 Levingston then retained Shegerian & Associates, Inc. of Santa Monica, nearly two months before her new opposition was due. Her new attorneys did not file an opposition to the summary judgment motion, but on the day of the hearing they filed an ex parte application for relief under Code of Civil Procedure §473(b), claiming “excusable neglect.” The new attorneys explained that prior counsel had not told them the details of the disqualification and they believed the motion had been fully briefed on both sides.

At the hearing, attorney Heather K. Conniff indicated to Vineyard that the firm’s practice was to “normally prepare for [a] summary judgment motion the day before the hearing.” (Conniff was an associate with Shegerian & Associates at that time, but her LinkedIn profile indicates she is a partner with Shegerian Conniff LLP as of this month.)

When Conniff told the judge that “all we knew” about Levingston’s previous counsel “is that they were just disqualified,” the judge replied:

“And that was not a big red flag that you should look at the court’s file and look at the order and what the status of the case was?”

Although his tentative ruling had been to grant relief, Vineyard denied it after the hearing and granted the summary judgment motion. He declared:

“I do not find excusable neglect in any way whatsoever.”

Levingston’s Contention

On appeal, Levingston did not contest Vineyard’s finding that the neglect by her attorneys had been inexcusable. Rather, she claimed that the §473(b) motion was, in effect, a request for continuance of the summary judgment proceedings.

Ramirez agreed with that characterization. He explained that, under Code of Civil Procedure §437c(h), a trial court, when requested on or before the due date of the opposition, must allow a continuance for a summary judgment hearing if it appears that essential facts exist but cannot be stated.

He wrote:

“The trial court could properly deny a continuance under Code of Civil Procedure section 437c, subdivision (h). As mentioned, any request for such a continuance must be submitted on or before the opposition is due. Obviously, that did not happen here. In any event, the trial court could reasonably find that the essential facts could have been presented—by filing a timely opposition—but they simply had not been.”

Ramirez noted that orders granting summary judgment based on procedural error are an abuse of discretion when they are not predicated on a willful violation of the procedural rule or a history of abuse of pretrial procedure.

The jurist wrote:

“We recognize that the trial court found that new counsel lacked credibility. We, too, find it unbelievable that they supposedly knew the disqualification order was not in their files yet did not obtain a copy from the trial court. It is equally mind-boggling that they supposedly took on a case in which a motion for summary judgment was pending yet were not going to look at the papers until one day before the hearing.”

He declined to find willfulness, however, noting that there was no affirmative evidence that Shegerian’s neglect had been deliberate.

“How could they possibly have benefited?” he wrote.

He also noted that the firm had done nothing in the case, and so could not have a history of abusing procedures. And Levingston herself had not been implicated in Mathews Law Group and Helmer Friedman’s disqualification.

The case is Levingston v. Kaiser Foundation Health Plan, Inc., 2018 S.O.S. 4081.

Counsel on appeal for Levingston were Carney R. Shegerian and Jill McDonell of Shegerian and Associates. John P. LeCrone, Rochelle L. Wilcox, and Aaron N. Colby of Davis Wright Tremaine’s Los Angeles office.


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