Tuesday, January 6, 2026
Page 3
Court of Appeal:
Case Improperly Dismissed Based on Lawyer’s Misconduct
Terminating Sanction Was Permissible Under Orange Superior Court Local Rule, but, Opinion Says, Not Under Statute
By a MetNews Staff Writer
A judge erred in issuing a terminating sanction based solely on dereliction of the plaintiff’s attorney, Div. Three of the Fourth District Court of Appeal has held, pointing out that such an action is statutorily barred, and finding, impliedly, that a local rule of the Orange Superior Court authorizing the killing off of the lawsuit, under the circumstances, is partially invalid.
The court observed that a situation might arise where a lawyer’s misconduct was discernibly propelled by the client’s wishes, rendering dismissal permissible, but said there was no indication of that in the present case.
Acting Presiding Justice Joanne Motoike authored the unpublished opinion, filed Friday. It revives a wrongful termination action by Kathleen Yang against Evan Paul Motorcars and four others.
Motoike noted that Code of Civil Procedure §575.2(a) authorizes the promulgation of local rules providing for dismissal of actions, or lesser penalties, based on violations of the rules but, she pointed out, §575.2 (b) provides:
“It is the intent of the Legislature that if a failure to comply with these rules is the responsibility of counsel and not of the party, any penalty shall be imposed on counsel and shall not adversely affect the party’s cause of action or defense thereto.”
Orange Superior Court Judge Deborah Servino ordered an end to Yang’s action based solely on misconduct by her attorney, relying upon Local Rule 318. That rule would permit a terminating sanction based on a lawyer’s conduct, providing that “if the court finds any counsel… has failed to comply with these local court rules…the court, on motion of a party or on its own motion, may…[d]ismiss the action….”
Dismissal was based on Yang’s lawyer having failed to comply with Local Rule 317 which requires, among other things, an exchange of exhibits and preparation of a joint statement of the case to be read to the jury.
Defense Lawyer’s Declaration
In a declaration filed on Oct. 4, 2023, Costa Mesa attorney Sam Maralan, who represented Evan Paul Motorcars and two of the other defendants, told of multiple attempts to meet and confer with Daniel Infuso, who was then with the Beverly Hills firm of DRE, for the purpose of complying with Rule 317. Maralan attached various emails to and from Infuso, and wrote:
“To date, I have not received a response from Mr. Infuso. or any other attorney for Plaintiff, regarding scheduling a time to complete Rule 317 conference. My last email to Mr. Infuso was on September 29, 2023 when I stated ‘I haven’t heard from you on this. Please let me know.’”
Following issuance of an order to show cause re terminating sanctions and the holding of a hearing, Servino on Nov. 27, 2023, ruled:
“The Court imposes terminating sanctions pursuant to Local Rule 381. This matter was filed June 09, 2021, with trial having been set in this matter over a year ago. On October 09, 2023. Plaintiff’s counsel Diego G. Brito appeared with Defense counsel Sam Maralan. The Court at that time had indicated that Plaintiff’s counsel had not acted with diligence to prosecute this case in a timely matter. The Court finds Defendants have been prejudiced by the actions of Plaintiffs counsel in prosecuting this case The Court orders the entire action dismissed with prejudice.”
Motoike’s Opinion
Motoike wrote:
“We acknowledge circumstances might support imputing an attorney’s failure to comply with local rules to the attorney’s client for purposes of local rule 381. For example, a party’s repeated violations of identical local rules over the course of litigation in which the party is represented by multiple attorneys in succession might support the inference the party is the driving force behind the violations, and not the party’s counsel.
“Our record does not show any such circumstances existed here. To the contrary, nothing in the court’s minute order, the signed order of dismissal, or any other part of the record suggests Yang personally was in any way responsible for her counsel’s failure to comply with rule 317 and proceed with due diligence in preparing the case for trial. We therefore must reverse the judgment and remand for further proceedings.”
She commented:
“Counsel’s lack of diligence threatens the efficient and effective administration of justice in the trial court and falls short of the civility guidelines promulgated by the Orange County Bar Association, encouraging attorneys to timely respond to communications from the other side, respect the court’s time, and prepare for every court appearance.”
Infuso is now an associate with the Costa Mesa personal injury firm of Morey & Upton, LLP.
The case is Yang v. Evan Paul Motorcars, G063522.
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