Monday, April 16, 2018
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Court of Appeal:
Lawyer’s Neglectfulness Does Not Constitute ‘Abandonment’
Failure to File Opposition to a Summary Judgment Motion Does Not Require Scrapping of Order Granting the Motion Where Plaintiff’s Attorney Performed Earlier Legal Chores—Opinion
By a MetNews Staff Writer
The Court of Appeal for this district has held that shoddy legal representation, including failing to file opposition to a motion for summary judgment, does not constitute client abandonment so as to require setting aside the granting of such a motion.
Justice John Segal of Div. Seven wrote the opinion, which was not certified for publication, rejecting the contention of Jennifer Shannon-Yeganhe that her lawyer, Eric Nordskog, had so neglected his responsibilities in her medical malpractice case as to have abandoned his representation of her.
The opinion, filed Thursday, affirms a June 26, 2015 decision of Los Angeles Superior Court Judge Kevin Brazile (now the court’s assistant presiding judge) denying discretionary relief under Code of Civil Procedure §473(b). The denial was, in part, because Shannon-Yeganhe had not demonstrated, Brazile said, “Nordskog’s total failure to represent her; instead, the complained-of acts merely constitute neglect for which this relief is not available.”
Segal’s Opinion
Agreeing with Brazile, Segal said:
“Shannon-Yeganhe does not cite any excusable neglect or omission by her counsel as a basis for relief….Rather, she argues her attorney’s failure to file written oppositions to the doctors’ motions for summary judgment, refusal to communicate with her, and lack of effort to have the orders granting the motions set aside amounted to ‘positive misconduct.’ ”
To establish that, Segal wrote, requires a showing of a “total failure on the part of counsel to represent his client.” The jurist declared:
“While there is no question Nordskog inexcusably neglected Shannon-Yeganhe, the trial court did not abuse its discretion in concluding Nordskog had not totally failed to represent her.”
The lawyer did undertake some labors in the case, Segal said, including making appearances.
Segal’s opinion takes into account work done on the case prior to Sept. 23, 2014, when Shannon-Yeganhe showed up at a scheduled hearing on the motions for summary judgment and announced that she had learned “seconds ago” that Nordskog would not be appearing. By contrast, the State Bar, in waging disciplinary charges against Nordskog, alleged that following Aug. 12, 2014, the lawyer had totally abandoned his client.
Hospital’s Judgment Reversed
While the appeals court affirmed summary judgment in favor of Dr. Alen Ternian, an anesthesiologist, and Dr. Eli Baron, a surgeon, it reversed a summary judgment in favor of Cedars-Sinai Medical Center, granted by Los Angeles Superior Court Judge Dalila C. Lyons, finding that there are triable issues of material fact.
The case is Shannon-Yeganhe v. Cedars-Sinai Medical Center, B266199.
The attorneys on appeal were Morris S. Getzels for Shannon-Yeganhe; Louis H. De Haas and Rebecca Handlin of LaFollette, Johnson, DeHaas, Fesler & Ames Baron; Raymond R. Moore and Arthur E. Zitsow of Moore McLennan for Ternian; Kenneth R. Pedroza and Matthew S. Levinson of Cole Pedroza for both Baron and Ternian; and Gregory G. Lynch, Kristi K. Hedrick and John J. Weber of Lewis Brisbois Bisgaard & Smith for Cedars-Sinai.
Disciplinary Case
The courts’ determination of a lack of “abandonment,” for purposes of a motion pursuant to §473(b), differs from the view of the State Bar, from the standpoint of discipline.
The State Bar on July 10, 2015, filed charges against Nordskog based on his mishandling of Shannon-Yeganhe’s case. It accused him of “improper withdrawal” by “constructively terminating respondent’s employment August 12, 2014, by failing to take any action on the client’s behalf after August 12, 2014, and thereafter failing to inform the client that respondent was withdrawing from employment….”
The complaint alleges that Nordskog “failed to respond to defendants’ discovery requests; failed to oppose defendants’ motions to compel discovery requests; failed to oppose defendants’ motion for summary judgment; and failed to appear at the summary judgment hearing.” It also asserts, among other offenses, that he failed to return his client’s phone calls, update her on developments in the case, or turn over the file to her.
Nordskog did not respond to the charges and was declared to be in default; he did not seek relief from default; he was disbarred.
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