SO, if seeking trial date A.S.A.P., must be well-versed in factors AND … case NO clear line b/w client’s conduct AND counsel’s conduct terminating OK if client has awareness of counsel’s conduct sanction In P’s counsel repeatedly blows off hearings Garcia v. McCutchen, (monetary having NO effect) court issues sanctions terminating sanction (dismissing P’s case)… BUT, reversed on appeal P is ultimately hurt by P’s counsel’s … noncompliance P should bear some responsibility could have hired new counsel (though, MAY not be possible… AND, MAY have been falsely reassured by counsel)… BUT, legal malpractice claim against counsel MAY not be fair … exchange must prove that counsel committed malpractice (several elements) AND (would have won underlying within case” “case case) Dismissal Distinction #1… may NOT refile Dismissal w/ prejudice MAY refile (assuming has NOT run) Dismissal w/o prejudice SoL Distinction #2… as per court’s action/discretion Involuntary dismissal as per Voluntary dismissal Request for Dismissal ONLY at Voluntary dismissal w/o prejudice time before the “any (Franklin actual commencement of trial” Capital Corp. v. Wilson)… BUT, unclear when trial actually commences (depends on case … law) is as per (state-wide)… BUT, as Involuntary dismissal mandatory rule” “5-yr. per is within 2-3 yrs. case management, involuntary dismissal discretionary In D seeks Landry v. Berryessa Union School District, discretionary as per P’s delay trial NOT brought within 2 yrs. involuntary dismissal (AND, P, as minor, entitled to trial setting preference)… BUT, P argues that delay was result of settlement negotiation w/ D … court NOT satisfied w/ P’s excuse (notwithstanding negotiations, huge time gap w/ NO action)…
… SO, if seeking trial date A.S.A.P., must be well-versed in factors AND case NO clear line b/w client’s conduct AND counsel’s conduct terminating sanction OK if client has awareness of counsel’s conduct In Garcia v. McCutchen, P’s counsel repeatedly blows off hearings (monetary sanctions having NO effect) court issues terminating sanction (dismissing P’s case)… … BUT, reversed on appeal P is ultimately hurt by P’s counsel’s noncompliance P should bear some responsibility could have hired new counsel (though, MAY not be possible… AND, MAY have been falsely reassured by counsel)… … BUT, legal malpractice claim against counsel MAY not be fair exchange must prove that counsel committed malpractice (several elements) AND “case within case” (would have won underlying case) Dismissal Distinction #1… Dismissal w/ prejudice may NOT refile Dismissal w/o prejudice MAY refile (assuming SoL has NOT run) Distinction #2… Involuntary dismissal as per court’s action/discretion Voluntary dismissal as per Request for Dismissal Voluntary dismissal w/o prejudice ONLY at “any time before the actual commencement of trial” (Franklin Capital Corp. v. Wilson)… … BUT, unclear when trial actually commences (depends on case law) Involuntary dismissal is mandatory as per “5-yr. rule” (state-wide)… BUT, as per case management, involuntary dismissal is discretionary within 2-3 yrs. In Landry v. Berryessa Union School District, D seeks discretionary involuntary dismissal as per P’s delay trial NOT brought within 2 yrs. (AND, P, as minor, entitled to trial setting preference)… … BUT, P argues that delay was result of settlement negotiation w/ D court NOT satisfied w/ P’s excuse (notwithstanding negotiations, huge time gap w/ NO action)…
Civ-Pro-II_Bakhshian-Fall-2009.docx