Opinion
A148345
07-24-2018
In re the Marriage of ANNA YEE and KELVIN YEE. ANNA YEE, Respondent, v. KELVIN YEE, Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. FDI-11-775479)
In August 2011, respondent Anna Lee petitioned for dissolution of her marriage to appellant Kelvin Lee. The litigation between Anna and Kelvin was extensive, generating a register of actions 17 pages long, and the judgment dissolving the marriage was not entered until 2016. Among the orders issued in the course of the litigation were two that arose out of Kelvin's non-compliance with discovery, which included sanctions imposed against him in 2012 and 2013. In 2013, Kelvin moved to vacate those orders, which motion was denied. In 2016, following the judgment of dissolution, Kelvin appealed, claiming that denial of his motion to vacate was erroneous. We affirm.
As is customary in marital dissolution cases, we refer to the parties by their first names.
BACKGROUND
The Proceedings Below
On August 18, 2011, Anna Yee filed a petition for dissolution of her marriage to Kelvin Yee. Anna was represented by attorney Jane Pitts. On September 1, Pitts served Anna's income and expense declaration on Kelvin (see Fam. Code, § 2104).
On September 21, Kelvin filed his response to Anna's petition and also a counter-petition. Kelvin was represented by attorney Donald Mah.
As Pitts would come to testify in a declaration, on several occasions after Kelvin's response, she talked to Mah and among other things "asked him to please serve" Kelvin's preliminary declarations of disclosure. Mah "agreed to do so," but did not, for months. So, on December 6, Pitts sent a reminder letter, requesting the disclosure within 30 days. Nothing was forthcoming.
On January 11, 2012, Anna filed an application seeking among other things an order to "Compel Preliminary Declarations of Disclosure."
On February 8, Kelvin filed opposition. It included his declaration that in pertinent part stated as follows: "Declarations of Disclosure. I have provided my attorney with information for completion of my declarations of disclosure. Unfortunately, I have not signed them yet as my attorney was absent from his office during the holiday break and has not had an opportunity to sit with me to discuss them. I have no objections to providing these disclosures and have asked that Mr. Mah complete them."
The trial court (the Honorable Ronald E. Albers presiding) granted Anna's application and on February 9 made an order that provided, in pertinent part, that Kelvin "is to serve his Preliminary Declarations on [Anna's] attorney by 4:00 pm on February 17, 2012. Kelvin complied in part, but not completely. And on March 12, Mah called Pitts and said he would provide the missing documents. There was no further compliance.
On March 27, Pitts sent Mah a letter that provided in its entirety as follows:
"Dear Don,
"On February 17 I wrote you a letter detailing why I felt the Disclosures you provided for your client were incomplete. We next spoke when you phoned me on March 12 to tell me you had the documents I requested and would be providing them to me. Now, more than two weeks have passed and I have still received nothing.
"I now have the distinct feeling the only way to get you to actually do anything in this case is to take you to Court again and request further sanctions. I hope I am wrong. I will wait only until April 2, 2012 to see if I receive the completed Disclosures."
Some of the required materials were provided on April 3, but not all. That day, Pitts sent another letter that pointed out in detail the ongoing deficiencies, which letter ended with this paragraph: "Unfortunately, because it is so difficult to get accurate and complete information from you, I am concerned I will have no choice but to commence formal discovery." Nothing was forthcoming from Kelvin.
On April 25, Pitts served formal discovery, a request for production of documents, requesting 24 categories of documents. The discovery requests required written responses by May 30, with the documents themselves to be produced on June 7. No responses were served.
On May 31, Pitts sent a facsimile reminder to Mah, to promptly serve "a complete objection-free response." In a June 11 telephone call, Mah requested an extra week to provide the discovery responses and the responsive documents. Pitts agreed, with the caveat that if documents or responses were not received, Anna would "proceed to file a Motion to Compel with no further notice . . . ." Again, nothing.
On June 21, Pitts filed a motion to "Compel production of objection-free Responses" and for fees (discovery sanctions) of $2,485. On July 24, the trial court (the Honorable Charlotte Woolard presiding) granted the motion and ordered: (1) responses (without objections) within 20 days of service of the court's order; (2) production of documents at that same time; and (3) attorney fees of $2,485 and costs of $40 to be paid by Kelvin. A formal order was filed on August 15 and served on Mah on August 16.
The 20 days for compliance came and went, and Pitts sent a letter on September 10, inquiring about the missing discovery. On September 13, Mah and Pitts happened to meet in the hallway at the courthouse. Mah stated that he had suffered a heart attack, but had received Pitts's messages and would get back to her soon. Because of Mah's claimed medical issues, Pitts agreed to wait until October 1 to receive the outstanding discovery and payment of the sanctions. October 1 came. And went. Nothing came from Kelvin.
On October 17, Anna filed a request for production of responses and documents, seeking further sanctions, specifically, past due fees of $2,485, current fees of $1,470, and additional sanctions of $3,500. The matter was set for November 15. On November 14, Mah called Pitts advising he would be unable to appear but that Kelvin had, he believed, dropped off responsive documents to Mah's office that day.
On November 15, Judge Albers ordered the previously-imposed sanctions be paid by November 26, and that all responsive documents be provided that same day. Judge Albers also awarded fees and costs for the November 15 hearing in the amount of $1,530 and $3,500 sanctions against Mah. A formal order was issued and served the same day.
On his own motion, Judge Albers also issued two orders to show cause, one directed to Kelvin and the other to Mah, both of whom were ordered to appear at 9:00 a.m. on December 20. Both orders to show cause were personally served, and both Kelvin and Mah appeared on December 20. Mah began by claiming that he had been unaware of the November 15 hearing. Confronted with his telephone call to Pitts on November 14 about the November 15 hearing, Mah changed his explanation: "I did. I did call her. I did want to let her know. Because Mr. Yee and I finally were able to see each other and he was starting to bring in documents for the discovery request. But unfortunately I had another matter set in a different County on that day and I was not able to get somebody to come and be here to speak to you." In short, by Mah's admission, Kelvin had waited until mid-November 2012 to start producing records that had been due in June.
As the December 20 hearing progressed, the parties addressed the unpaid fee award of $2,525 from July 24, fees incurred by Anna of $1,530 from November 15, together with service costs of the orders to show cause of $123 and $980 for the time for Pitts to attend the December 20 hearing, resulting in a total of fees and costs owing to Anna of $5,158. This sum was in addition to the $3,500 awarded on November 15 as sanctions against Mah.
After computing the sums outstanding, Judge Albers turned to Kelvin and directly addressed to him how important it was that he get all of the documents Anna had requested by "yesterday." This is how he put it: "So Mr. Yee—Mr. Mah understands what the issue is—but just doing a quick translation of this jargon that we are using, if you do not comply with the orders with regard to production of documents and discovery what will happen is there will be orders prohibiting any introduction of evidence on your side of the hearing including a determination of facts that are going to be against your interests. We don't have to deal with that today, but it is really bad. It comes close to saying that you lose. Okay? So you need to get that stuff to your lawyer and your lawyer needs to get it to Ms. Pitts. Yesterday." Judge Albers set a compliance hearing date for March 14, 2013.
Ten days later, on December 30, Mah was suspended from practicing law. He did not, however, notify Pitts or the trial court of the suspension and apparently did not notify Kelvin until about March 1, 2013.
Anna's request for judicial notice and Kelvin's motion to augment the record are both granted. --------
On January 23, 2013, Anna propounded a set of 27 requests for admissions on Kelvin. Not knowing that Mah had been suspended, this discovery was served on Mah. When the requests were not responded to, Anna moved to have the requests deemed admitted, filing her moving papers on February 28, setting the motion for hearing on April 2.
Meanwhile, the compliance hearing ordered by Judge Albers proceeded as scheduled on March 14, before the Honorable Linda Colfax. At the start of the hearing, Kelvin advised that "my counsel has been suspended so I wish a continuance because I am hiring temporary counsel." Judge Colfax granted the continuance, but cautioned Kelvin to be diligent in retaining a new attorney: "I am going to give you time, Mr. Yee . . . but I'm not giving you a whole lot of time because this has been going on for about a year now. [¶] . . . [¶] So we are going to continue this to April 2nd. We are going to confirm the April 2nd date. You need to find an attorney by April 2nd or we are going to proceed."
On April 2, Kelvin advised Judge Colfax that he had not found a new attorney. However, after questioning, he admitted that he had only made one call to one attorney's office and had talked only to an assistant who told him to get the case file and call back. Unable to get a copy of the case file, Kelvin did not call that attorney back, nor did he call anyone else or take any other steps to retain an attorney. Judge Colfax responded as follows:
"Mr. Yee, when you were here the last time on March 14th you told me that you had not been able to make contact with your attorney. You don't know how to reach him. He has kind of disappeared for lack of a better way of phrasing it. And that you felt stuck because you didn't know how to proceed because you had an attorney who wasn't around. We then told you that, yeah, that he is not even a licensed attorney anymore and you had the right to go seek another attorney.
"It sounds to me as though you are still playing the same refrain, which is 'I have been looking for Mr. Mah and I haven't been able to find Mr. Mah.' But you knew that. You knew that as of March 14th that you couldn't find Mr. Mah.
". . . [T]he order from this Court and the reason why I gave you the time was to find a new attorney and to tell me what efforts you had made to find a new attorney knowing that you couldn't find Mr. Mah. You were very clear to me about the fact that you could not locate him on the court appearance. So I am not surprised two weeks hence that you still can't locate him. What I am surprised by is the fact that you have done nothing to try to talk to another attorney or find another attorney."
Judge Colfax denied the motion to have the admissions deemed admitted because the requests and motion had only been served on Mah and not on Kelvin. She did, however, issue new sanctions for the ongoing disobedience of all the prior orders, the delay caused by Kelvin's failure to seek new counsel, and his misrepresentations about his financial inability to pay the previously-awarded sanctions. Anna had sought an additional $6,824.04 in fees and costs, and $5,000 in further sanctions. Judge Colfax awarded the $6,824.04 in fees and costs, but only $2,500 in further sanctions.
The Motion to Vacate
On April 18, a new attorney substituted in for Kelvin—Roger Meredith.
On April 24, represented by Meredith, Kelvin filed a "Motion to Set Aside VOID Judgment (CCP § 473(d))," set for hearing on May 30. The relief requested was stated this way: "Respondent requests that the court vacate/void the orders made on 8/15/12, 11/15/12, 12/20/12, 4/2/13 pursuant to CCP §473(d) as they are voidable for both lack of notice and as a result of extrinsic fraud as well as/alternatively CCP §656 and CCP §657 on grounds of accident or surprise." The motion was accompanied by a declaration of Kelvin; a declaration of Meredith, which attached four exhibits; and a memorandum of points and authorities.
On May 15, Anna filed her opposition. It included a memorandum of points and authorities that among other things asserted that "[Kelvin] and his present counsel have misstated the facts," and that Kelvin's "own misrepresentations and negligence resulted in court orders." Anna's opposition also included the transcript from the December 20, 2012 hearing, and various other exhibits, including Judge Colfax's order following the April 2 hearing.
On May 22, Meredith filed a reply declaration.
The motion to vacate came on for hearing as scheduled, on May 30 before Judge Colfax. The hearing was extensive, in the course of which Judge Colfax clearly indicated, based on her own experience and involvement, that Kelvin was himself responsible for his predicament. Her comments could not have been clearer, illustrated by these:
"Mr. Yee was before me on March 14th, and on March 14th Ms. Pitts made lots of requests and demands, and it was then that I learned for the first time that Mr. Mah's license had been suspended. . . . I told Mr. Yee explicitly that I was going to give him time to find an attorney if he wanted an attorney and I brought back this matter on April 2nd. And on April 2nd the only thing I really asked of Mr. Yee was what efforts had he made, if any, to find an attorney. And at that point, it was clear to me that he hadn't made any efforts. And by [Mr. Meredith's] declaration it indicates further that he didn't make any efforts until after my ruling. And Judge Albers had Mr. Yee in court and spoke to him explicitly about what was going on and what the risks were. I had Mr. Yee in court and spoke to him explicitly. . . . And I was even prepared on the April 2nd . . . if he had given me some indication that more time was needed I was open to that possibility, but he had just closed his ears and his eyes to what I had stated to him on March 14th, and at that point we then moved forward. And I understand that he's not comfortable and doesn't agree with the orders that I made, but he was certainly advised of what was at stake, and he was certainly given time to find an attorney so that he could present with an attorney by his side if he wanted his arguments. He didn't. . . . [¶] . . . [¶]
"Mr. Yee however has also been in court and I realize that he claims in his declaration that this is all new to him. But when someone looks him in the eye, particularly a bench officer, and tells him what's at stake and what he needs to do there's not much more that can be done. It has nothing to do with whether he was represented or not represented. Some of these items, it's his being told something directly and then ignoring it. And while ignoring things can be a coping mechanism for some people, it doesn't work in this world, and he knows that because throughout 2012 he was hit with sanctions for ignoring court orders. So I'm not sure how else the message is going to get through."
Kelvin's motion to vacate was denied, and a formal order was entered July 8.
As reflected in the register of actions—not to mention the four volumes of clerk's transcripts here—the case continued on for another three and a half years, the last entry in the register reflecting a date of October 19, 2016.
Meanwhile, on April 22, 2016, Kelvin filed a notice of appeal leading to the appeal before us, which indicates he is appealing the "Judgment after court trial," which judgment was entered February 25, 2016. According to the register of actions, that judgment was for dissolution of marriage.
DISCUSSION
Introduction
Kelvin's brief states that there are two "Issues Presented," described as follows:
"1. The four orders made herein (filed August 15, 2012; filed November 15, 2012; heard December 20, 2012; and heard April 2, 2013) are void. A void judgment may be set aside either on the theory of its invalidity or on the ground of extrinsic fraud. The Appellant was 'represented' by Mah, an attorney suspended and subsequently disbarred for failure to perform with competence (specifically abandonment of his clients among other charges) and had no constructive notice of the proceedings; thus the resulting orders are invalid as they are violative of Appellant's due process rights. Alternatively, Mah's malfeasance constituted extrinsic fraud thereby also requiring that the orders be set aside. Finally, Appellant is entitled to have the orders vacated and for a new hearing on the matter on the grounds of accident or surprise.
"2. The four orders made herein are void as they are based on the provisions requiring a preliminary declaration of disclosure, which do not contain any provisions for sanctions, monetary or evidentiary."
We note that nowhere do Kelvin's briefs articulate precisely what is involved in the "four orders made herein (filed August 15, 2012; filed November 15, 2012; heard December 20, 2012; and heard April 2, 2013)." At various places in his briefs he has long discussions of what he claims is involved, but at no point does he specifically distill them. As best we can tell, the November 15, 2012 order dealt with the hearings of July 24, 2012 and November 15, 2012, and awarded a total of $7,555, $2,525 for July 24 and $5,030 for November 15. In short, Kelvin's brief is unhelpful.
Anna's brief describes what she understands is before us—and what is in the record on appeal. In her words:
"Here, then, is the breakdown:
| Hearing Date | New Fees, Costand Sanctions | Order Date | Total OrderAmount |
| 7/24/2012 | $2,525 | 8/16/2012 | $2,525 |
| 11/15/2012 | $5,030 | 11/15/2012 | $7,555 |
| 12/20/2012 | $1,103 | 5/23/2013 | $14,482.04 |
| 4/2/2013 | $9,324.04 | 5/23/2013 | $14,482.04 |
"There were thus three written orders encompassing sanctions awarded following four separate hearings. Of the three orders, only two have been presented in the record by appellant—the November 15, 2012 order and the May 23, 2013 order. The November 15, 2012 order encompassed the July 24, 2012 hearing and the November 15, 2012 hearing; and the May 23, 2013 order encompassed both the December 20, 2012 hearing and the April 2, 2013 hearing."
However unartfully described, Kelvin contends that the denial of his motion to vacate was error, in claimed support of which he makes three arguments. The first two assert that the motion to vacate should have been granted on the grounds of (1) extrinsic fraud, and (2) accident or surprise. The third argument is that there was no "jurisdiction to award sanctions as no 'discovery' was pending in the action that was subject to the court sanction orders."
Standard of Review
Kelvin's brief asserts that the standard of review is de novo, based on the claim that the facts are undisputed. In his words, "Appellant's facts are undisputed that the multiple acts of malfeasance of his former counsel Mah in the course of representing Appellant before the Superior Court, led to the orders issued by the Superior Court and entitled him to relief from those orders on his motion for relief from the sanction orders that are part of this appeal." Kelvin is wrong.
As noted, Kelvin's appeal is based on the denial of a motion to vacate, a motion he based on Code of Civil Procedure section 473, subdivision (d). Motions made under section 473 are reviewed for abuse of discretion. (In re Marriage of Connolly (1979) 23 Cal.3d 590, 597-598; In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 118.) And to the extent that Kelvin's motion to vacate was based on the alternative ground of Code of Civil Procedure section 657, as a motion for new trial, such rulings are also reviewed for abuse of discretion. (Shiffer v. CBS Corp. (2015) 240 Cal.App.4th 246, 255; Plancarte v. Guardsmark LLC (2004) 118 Cal.App.4th 640, 647.)
Kelvin Has Demonstrated No Abuse of Discretion
The theme running throughout Kelvin's appeal is that all that happened to him was the fault of Mah. As Kelvin puts it at one point: "It is now clear that several hearings had commenced and concluded in this matter, resulting in discovery orders, sanctions, fee and cost awards . . . . Appellant had no legally proper notice of these proceedings as Mah had abandoned the case and his client, was inactive pursuant to the disciplinary proceedings by the State Bar, and ultimately was disbarred after his default was taken. Due to Mah's abandonment of his client, Appellant did not appear for hearings, and no case was presented on his behalf, resulting in the current decisions of the court and judgment greatly favoring Respondent on the issues of property division, attorney's fees, sanctions, and other related issues. [¶] Appellant requested an order vacating the prior orders on the grounds of accident or surprise, as well as on the basis that the orders were void as a matter of law as a result of the failure of notice (due process) and extrinsic fraud stemming from the conduct of Mah. Appellant's motion for relief set forth that Mah was the cause of the various discovery sanctions imposed upon him through various orders in this proceeding as Mah never gave Appellant copies of any pleadings or discovery requests."
We begin with a few observations.
First, Mah's suspension from the practice of law was in the last week of December 2012. The two orders Kelvin asserts were actually "filed" were in August and November 2012, both while his counsel was authorized to practice law.
Second, we do not understand how Kelvin, represented by Meredith on appeal, can state that Mah was responsible for not presenting a case "on his behalf, resulting in the current decisions of the court and judgment greatly favoring Respondent on the issues of property division, attorney's fees, sanctions, and other related issues." Meredith substituted in on April 18, 2013 and has represented Kelvin since then.
Third, we also do not understand how Kelvin can assert—as he does in the second of the issues presented and in his third argument—that there was "no discovery." Kelvin had been served with, and ordered to respond to, a request for production of documents, noncompliance with which was at the heart of all that followed.
Fourth, Kelvin's claim that it was all the fault of Mah ignores the record, which demonstrates that Kelvin himself was the subject of the initial order compelling his response to the request for production, which order also imposed the sanction on him. And it was his noncompliance with that order, and the non-payment of the sanction, that caused the additional sanctions. Kelvin is not blame-free. To the contrary, his conduct was consistent with his conduct from inception, which from all indications showed disdain for the process.
As shown above, Kelvin refused to produce the preliminary disclosures as required, despite his response and counter-petition filed in September 2011. This resulted in Anna's being forced to go to court, an order requiring production by Kelvin, and only partial compliance by Kelvin, thus causing Anna to serve the threatened formal discovery. That formal discovery was not responded to, thus requiring another motion, resulting in a formal order that Kelvin produce the documents by early September. Despite that, Kelvin wanted until November to "start[]" to "bring in documents for the discovery request." Kelvin waited another month, until the day of the next court hearing, to provide more documents to Mah. And Kelvin was in court when he was given until January 4, 2013 to provide the rest of the responsive documents. Notwithstanding that, Kelvin admitted on April 2 that he had given some of those documents to Mah in either late January or early February—a month late. Indeed, by April 2, Kelvin still had not provided all the responsive documents he had. And, of course, it was Kelvin who caused delays by failing to take reasonable steps to find a new attorney after he learned of Mah's suspension. In sum, Kelvin's own misfeasance defeats him here.
But even if Kelvin's predicament was the fault of Mah, it would not avail him, as Mah's conduct is imputed to Kelvin under general agency rules. As Kelvin himself describes it, the "law ordinarily charges the client with the inexcusable neglect of his attorney, and gives him redress against his counsel," citing (Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 532. Attempting to come without that general rule, Kelvin contends "there are exceptional cases in which the client who is relatively free from personal neglect will be relieved from a default or dismissal attributable to the inaction or procrastination of his counsel. (See Hallett v. Slaughter [(1943)] 22 Cal.2d 552 . . . , Vartanian v. Croll [(1953)] 117 Cal.App.2d 639, 644...)" "[R]elatively free from personal neglect" hardly describes Kelvin's conduct here.
That Kelvin's argument fails is demonstrated by the holding in Carroll v. Abbott Laboratories (1982) 32 Cal.3d 892 (Carroll). Carroll involved a brain damaged minor who, acting through a guardian ad litem, sued the manufacturer of a drug alleged to have caused the minor's injuries. The manufacturer sought documents maintained by plaintiff's mother about medical treatment in Vietnam and a "baby book" that chronicled plaintiff's early life. Plaintiff's attorney obtained numerous extensions, but after more than eight months, the records still had not been produced. The manufacturer filed a motion to compel, which was granted without opposition and without an appearance by plaintiff's attorney. The records were still not produced, and the manufacturer filed a second motion, this time to compel and to dismiss. The motion to compel was granted without opposition and without an appearance by plaintiff's attorney. The motion to dismiss was continued and at the continued hearing, plaintiff's attorney still had not filed an opposition, again did not appear, and still had not produced the requested records. The trial court dismissed the action. (Id. at pp. 895-896.)
Plaintiff sought relief from the dismissal under Code of Civil Procedure section 473, which was granted and the lawsuit reinstated. The manufacturer appealed, and the reinstatement was upheld by the Court of Appeal. (Carroll, supra, 32 Cal.3d at pp. 896-897.) The Supreme Court reversed, holding that a client can escape the negligence of his attorney only if two criteria are met: (1) "the attorney's neglect is of that extreme degree amounting to positive misconduct" so as to "in effect, obliterate[] the existence of the attorney-client relationship" and (2) "the person seeking relief is relatively free from negligence." (Carroll, supra, 32 Cal.3d at p. 898, italics omitted.) Failing to respond to discovery was, the Supreme Court held, grossly negligent, but it was not a wholesale abandonment of the client working as a "de facto" substitution out of the case. Rather, plaintiff's attorney had attended the guardian ad litem's deposition; answered some interrogatories from another defendant; and settled with that other defendant. (Ibid.) This work dispelled any claim of abandonment or positive misconduct by the attorney sufficient to support the exception to the rule that an attorney's mistakes are attributable to the client. Likewise here.
Mah might have been cavalier about producing records from Kelvin. But he did not "de facto" substitute out of the case any time before his suspension began on December 30, 2012. Indeed, as shown above and by the register of actions, before that date Mah did at least the following:
Prepared and on September 21, 2011 filed a response to Anna's petition for dissolution of marriage;
Prepared and on September 21, 2011 filed a responsive declaration to an order to show cause regarding child custody;
Prepared and on February 8, 2012 filed a responsive declaration to an order to show cause regarding child custody and support;
Signed a stipulation and order on February 9, 2012 regarding visitation;
Partially complied with the order to exchange a preliminary disclosure on or about February 17, 2012;
Provided some records to Pitts on or about April 3, 2012;
Sought an extension to provide documents in a telephone call with Pitts on June 11;
Discussed the case with Pitts on September 13, 2012;
Called Pitts on November 14, 2012 to advise her of a scheduling conflict for a hearing the next day; and
Attended a court hearing on December 20, 2012.
While it may be that Mah "mishandled a routine discovery matter, no abandonment of the client appears." (Carroll, supra, 32 Cal.3d at p. 900.) The result is that Kelvin is bound by any mistake of his attorney, just as in Carroll.
We applied the same analysis in Freedman v. Pacific Gas & Electric Co. (1987) 196 Cal.App.3d 696. There, plaintiff's initial attorney was slow in preparing the case for trial, and after more than four years, it was dismissed for failure to prosecute. The attorney for the plaintiff ultimately resigned from the bar in the face of disciplinary proceedings. We held that did not matter: "[The initial attorney] did not totally fail to represent plaintiffs and thus de facto substitute out of the case." (Id. at p. 706.) The " 'Carroll exception applies only where the attorney's misconduct effectively severs the attorney-client relationship.' " (Id. at p. 707.)
Kelvin complains that Mah's suspension from practice as an attorney on December 30, 2012 effectively severed the attorney-client relationship with Kelvin. Maybe so. But Kelvin was not sanctioned on April 2, 2013 by Judge Colfax for anything that Mah did or did not do. To the contrary, Kelvin was sanctioned for what he failed to do. By then, Kelvin still had not produced all his records, despite the lapse of a full year and despite being present in court when the need to produce records was explained directly to him. Kelvin had still not paid sanctions previously awarded against him. And he had caused the delays by not diligently seeking new counsel. As Anna aptly describes it, Kelvin "in general had not taken the process seriously."
DISPOSITION
The orders are affirmed. Anna is awarded her costs on appeal.
/s/_________
Richman, J.
We concur:
/s/_________
Kline, P.J.
/s/_________
Stewart, J.