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Mossanen v. Monfared2/4/2000
CERTIFIED FOR PUBLICATION
APPEAL from a judgment of the Superior Court of Los Angeles County, John W. Ouderkirk, Judge. Reversed.
This is an action for medical malpractice, brought on behalf of Mateen Mossanen, a minor. The minor's mother, Elizabeth Mossanen, acted as his guardian ad litem, and also sued in her individual capacity. The trial court granted a motion to withdraw by counsel for plaintiffs. While plaintiffs were attempting to retain new counsel, the defendants, Amir H. Monfared and his medical corporation, brought a motion for summary judgment. Plaintiffs were unable to retain new counsel. They filed a dismissal of their action without prejudice, but the trial court granted defendants' motion to vacate the dismissal. The trial court then granted the motion for summary judgment and entered judgment for defendants.
Elizabeth Mossanen settled her individual action and is not a part of this appeal. Mateen, the minor, appeals through Mrs. Mossanen as his guardian ad litem. His appeal is from the judgment in favor of defendants and from the trial court's order vacating the dismissal. He argues the judgment must be reversed because the trial court abused its discretion in permitting his counsel to withdraw before new counsel had been obtained, and in vacating the dismissal without prejudice.
We conclude that, under the circumstances of this case, the trial court erred in allowing counsel for Mateen to withdraw before a new attorney had been retained. Once Mateen was unrepresented, his guardian ad litem, a layperson, was powerless to oppose the summary judgment motion on his behalf. Under these circumstances, the guardian ad litem took the only course available to preserve Mateen's cause of action--to voluntarily dismiss the action without prejudice. The trial court erred in vacating that dismissal and in entering judgment for defendants on their summary judgment motion.
FACTUAL AND PROCEDURAL SUMMARY
Mateen was born on November 27, 1995. He has cerebral palsy and is permanently disabled. Defendant Amir Monfared, M.D. was one of Elizabeth Mossanen's obstetricians. On November 20, 1996, Mrs. Mossanen, individually, and as guardian ad litem for Mateen, sued Dr. Monfared for negligence and emotional distress. The complaint was later amended to name Dr. Monfared's medical corporation as a Doe defendant. Plaintiffs were then represented by attorney Bruce Fagel.
In November 1997, Mr. Fagel and another attorney in his office, Thomas S. Alch, met with Mr. and Mrs. Mossanen to discuss case strategy. After that meeting, Mr. Fagel concluded there were irreconcilable differences regarding the prosecution of the case. Mr. and Mrs. Mossanen were told that they should seek new representation. In late January 1998, Mr. Alch again spoke with Mr. and Mrs. Mossanen and told them that his firm would move to withdraw from the case. Mr. Alch memorialized this conversation in a letter to the Mossanens.
On February 3, 1998, the Fagel office filed a motion to withdraw as counsel. Court approval was required to allow the Fagel office to withdraw as counsel for Mateen. (See Torres v. Freedman (1985) 169 Cal.App.3d 880, 887-888.) The Fagel firm moved to continue the June 16, 1998 trial date, in order to allow new counsel sufficient time to prepare for trial.
Plaintiffs filed an opposition to the Fagel firm's motion to withdraw, prepared by attorney Bezhad Nahai. The opposition was based on the contention that plaintiffs had not yet been able to retain new counsel, and that they had been given insufficient time to do so.
Mr. Nahai appeared on behalf of plaintiffs at the March 25 hearing on the motion to
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