Metropolitan News-Enterprise


Friday, January 11, 2019


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C.A. Won’t Decide if Client Abandonment Tolls Period for Bringing Case to Trial

Appellant Argued Lawyer’s Inactivity Created ‘Impossibility,’ Excusing Case Lingering Longer Than Five Years; Court Says Not Filing Papers Does Not Mean Doing Nothing


By a MetNews Staff Writer


The First District Court of Appeal has left unanswered the question of whether the five-year time limit for bringing a case to trial is tolled during a period when the plaintiff’s attorney has done no work on a case, effectively abandoning the client.

Acting Presiding Justice Alison M. Tucher of Div. Four wrote the opinion, filed Wednesday. It was not certified for publication.

The appeal arose from the Humboldt Superior Court’s dismissal of an action for wrongful foreclosure pursuant to the mandatory dismissal statute, Code of Civil Procedure §583.310. Plaintiff Gerald McGuire insisted the five-year period had not expired in light of §583.340(c) which excludes any time during which “[b]ringing the action to trial...was impossible, impracticable, or futile.”

His lawyer, Andrew J. Stunich of Eureka, did no work on the case from July 19, 2013, when he filed a third amended complaint, until Oct. 22, 2015, when he substituted-out, McGuire asserted, contending the five-year period was tolled during that time.

No Precedent Found

Tucher noted:

“We have not found authority addressing whether this type of misconduct by an attorney can be a circumstance making it impossible for the client to move a case toward trial within five years.”

She related that the appeals court’s “independent research shows that positive misconduct amounting to total abandonment is a recognized defense” where motion is brought under the three-year discretionary dismissal statute, §583.420. The jurist continued:

“Discretionary dismissals do not implicate precisely the same policies attendant to the mandatory five-year statutory deadline. Ultimately though, we are concerned with the section 583.340, subdivision (c) exception to that mandatory deadline, which balances competing policies by making allowances for circumstances that are beyond the plaintiff’s control.”

Issue Not Addressed

Declining to resolve the issue of whether an attorney’s abandonment of a client renders it “impossible” to bring the case to trial, she said:

“[W]e assume for purposes of this appeal that positive misconduct by an attorney, which amounts to abandonment of a client who is otherwise free of blame can be a circumstance establishing that it was impossible for the client to bring his case to trial within the statutory period.”

Tucher declared that even if that is the law, McGuire failed to show that it benefits him. She wrote:

“Here, McGuire contends that Stunich engaged in egregious misconduct by failing to do any work in this case after filing the third amended complaint on July 19, 2013. This serious charge is unsupported by concrete evidence. Instead, McGuire assumes that because Stunich did not file a pleading or motion after July 19, 2013, he did not do any subsequent work. However, an attorney’s representation is not limited to the court documents that he files.”

Court File

Tucher continued:

“Furthermore, McGuire does not consider what the documents in his court file actually say, ignoring references to developments that occurred after the third amended complaint was filed, including the foreclosure of McGuire’s properties; the exchange of discovery; and settlements with some defendants. The record also shows that in 2015, while Stunich was still McGuire’s counsel of record, [the lenders who foreclosed] made a settlement offer, which was not accepted. This evidence supports the conclusion that Stunich did continue to represent McGuire after the third amended complaint was filed.”

She also pointed to indications that McGuire was not free from blame.

The case is McGuire v. Lawton, A152468.


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