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C.A. Refers Beverly Hills Firm to State Bar for ‘Consideration of Discipline’ for Fraud
Opinion Says Lawyers Misrepresented That Proposed Order Was ‘Unopposed’ When in Fact Moving Papers Were Never Served on Opposing Party
By Kimber Cooley, associate editor
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LIANA TER-OGANESYAN |
KARIN MAYELAN |
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attorneys |
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Div. Three of the First District Court of Appeal yesterday announced the referral of two Beverly Hills attorneys to the State Bar for the “consideration of discipline” after the lawyers filed a motion in the trial court to vacate a judgment based on excusable neglect, with an accompanying “proposed order” indicating that the request was “unopposed,” when, in fact, it had never been served on the opposing party.
In an unpublished opinion authored by Presiding Justice Alison M. Tucher, and joined in by Justices Ioana Petrou and Victor Rodríguez, the court acknowledged that the referral is not mandatory because no sanctions were being imposed but said “we cannot ignore” the “misleading conduct” and was acting based on the “inherent judicial power to discipline attorneys.”
Tucher’s opinion referred to the lawyers only by the firm’s name, K&L Associates. However, court records reveal that the attorneys filing the proposed order in question are the same as those representing the plaintiff on appeal—Liana Ter-oganesyan and Karin Mayelan.
Dangerous Condition Action
The offending conduct arose in a case filed by Silva Avoyan against the City of San Francisco after the plaintiff allegedly tripped due to the “dangerous condition” of a public sidewalk. Mayelan and Ter-oganesyan prepared the complaint, which was filed on March 6, 2020.
Between August 2020 and February 2022, San Francisco Superior Court Judge Curtis Karnow issued eight orders to show cause as to why the action should not be dismissed, and sanctions imposed, due to the plaintiff’s failure to file proof of service of the complaint on the city.
Karnow issued an order dismissing the matter without prejudice on July 20, 2022, after receiving no response to the orders to show cause. Two days later, the complaint and summons were hand-delivered, and mailed, to a representative of the Office of the City Attorney.
A deputy city attorney followed up by sending an email, dated Aug. 12, 2022, to K&L challenging the service based on the dismissal; the email went unanswered.
On Jan. 13, 2023, Mayelan and Ter-oganesyan filed a motion to set aside or vacate the dismissal pursuant to Code of Civil Procedure §473(b), which allows for such relief in cases of “mistake” or “excusable neglect.”
Mayelan and Ter-oganesyan allege in the motion that they made “multiple unsuccessful attempts” to serve defendant but that their process servers were turned away “due to Covid-19 restrictions.”
Along with the motion, the attorneys filed the proposed order which provides “Plaintiff’s unopposed Motion to Set Aside/Vacate Dismissal is Granted.” Karnow signed the order on Feb. 8, 2023, unaware that the city had not been given notice.
Upon learning of the reinstatement, the city filed a motion seeking dismissal for failure to serve the complaint within the three-year statutory deadline. Karnow granted the motion, agreeing with the city that the July 2022 service was invalid because it was preceded by the first dismissal.
The plaintiff appealed, arguing substantial compliance.
Good Faith Required
Tucher said “the substantial compliance doctrine requires a showing that a reasonable attempt was made to comply with a statute in good faith” and opined:
“Plaintiff fails to make that showing here. The initial dismissal of her case resulted from her failure to comply with multiple court orders over a protracted period; then she attempted to serve the City by substituted service when no action was pending; and then she waited months before obtaining relief from that original dismissal based on representations that were questionable at best. Even affording plaintiff the benefit of the doubt…, we cannot conclude that K&L acted reasonably or in good faith.”
She continued:
“Conduct constituting fraud and deceit is defined in this state to include: ‘The suggestion, as a fact, of that which is not true, by one who does not believe it to be true’….K&L’s conduct appears to fall within both definitions. They obtained an order vacating the original dismissal of plaintiff’s case pursuant to an express representation that the motion to reinstate plaintiff’s case was unopposed. When K&L made that representation, they knew the City objected to the July 2022 attempted service as an abuse of process. They also knew that the City did not have notice of, and had not agreed not to oppose, plaintiff’s motion to vacate the dismissal, since K&L neither responded to the Deputy City Attorney’s August 12 email nor served the City with their motion or proposed order.”
Another Troubling Circumstance
The jurist added:
“Another circumstance troubles us. An appellant’s appendix must contain items from the superior court file that are necessary for proper consideration of issues, including items appellant should reasonably assume the respondent will rely on….Here, the appellant’s appendix prepared by K&L omits multiple material documents, including all of the OSCs that led to the initial dismissal of plaintiff’s case, the order reinstating the case pursuant to an allegedly unopposed motion, and the subsequent OSC that was pending when the case was dismissed for the second time. These deficiencies necessitated the filing of a respondent’s appendix to set the record straight.”
Under these circumstances, Tucher remarked:
“The City has not requested sanctions for what amounts to a frivolous appeal….However, we cannot ignore K&L’s misleading conduct in the trial court, particularly in light of their decision to double-down by pursuing this appeal based on an inadequate record. Because we do not impose sanctions, referral to the State Bar is not mandatory….But we also have inherent judicial power to discipline attorneys….Accordingly, the clerk of this court is ordered to send a copy of this opinion to the California State Bar for consideration of discipline, and we hereby inform K&L of this referral….We express no opinion on what discipline, if any, is to be imposed.”
The court affirmed the dismissal.
The case is Avoyan v. City of San Francisco, A168523.
Neither Ter-oganesyan nor Karin Mayelan responded to a request for comment.
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