What is the effect of a plaintiff's failure to contact counsel during the course of a long period of time?

The majority attempt to distinguish the case at hand from Orange Empire and other cases granting relief in similar circumstances, but that attempt is not convincing. The distinction between one attorney's "positive misconduct" and another's "gross negligence" is, at best, elusive; the factual circumstances of the two cases are simply not as dissimilar as the majority claim. In Orange Empire, the court concluded that a plaintiff had been "unknowingly deprived of effective representation by counsel's failure to serve process, to appear at the pretrial conference, [or] to communicate with the court, client, and other counsel ...." (Orange Empire Nat. Bank v. Kirk, supra, 259 Cal.App.2d at p. 353, 66 Cal.Rptr. 240.) Like Orange Empire, the record in this case indicates that, aside from an initial flurry of activity, plaintiff's counsel took virtually no action with respect to this case. Beginning in November 1979, counsel failed to appear at a hearing on a motion to compel production of documents, failed to comply with the court order granting that motion, failed again to appear at a hearing when the motion was renewed, and failed again to comply when the motion was granted. When counsel did not appear at a hearing on defendant's motion to dismiss, the court dismissed the action. At no time during this period was counsel in contact with his client. Can it be reasonably doubted that in the chain of events leading to dismissal the plaintiff was "unknowingly deprived of effective representation"? (Ibid.) It was only when counsel was confronted with the dismissal of plaintiff's lawsuit and, no doubt, began to contemplate the unpleasant possibility of a malpractice action against himself that he resumed even a minimal interest in the case. The resumption of activity after the case had been dismissed cannot change the fact that plaintiff was essentially left without counsel at critical times during the course of this litigation.

What is more, finely drawn distinctions between the facts of this case and others are not appropriate here. The rule of Orange Empire is not, as the majority contend, a judicially created exception to a statute which must, therefore, be "narrowly applied." (See maj. opn. at p. 596 of 187 Cal.Rptr. p. 779 of 654 P.2d.) Rather, the rule is grounded in the court's broad and "inherent equity power" (Weitz v. Yankosky, supra, 63 Cal.2d at p. 855, 48 Cal.Rptr. 620, 409 P.2d 700) and provides ample support for the trial court's judgment here. ⁴

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