Legal Question in Appeals and Writs in California

My case in Calif. civil court was ruled a non-suit and dismissed.

My attorney attend a readiness hearing for depositions and trial. My attorney told the judge he had an expert ready for both, when in fact he didn't. He even made up a fake name of the expert and charged me a retainer. Because he could not provide that expert, he removed the case to Federal Court,to buy time, where the Federal Judge sanctioned me, and remanded back to state court, because a plaintiff cannot remove a case.

The Civil Court judge dismissed all of my experts, then ruled a non-suit and dismissed the case, because I could not prove my case without an expert.

My question is, can I use this fraud on the court in an appeal, or am I stuck based on the rule that a client is responsible for his own attorneys actions.


Asked on 3/01/14, 11:36 am

3 Answers from Attorneys
Anthony Roach Law Office of Anthony A. Roach

You can't appeal the trial judge's decision based on fraud that your own side committed. You need to see an attorney as soon as possible about suing your attorney for malpractice. You may also need to file a complaint with the State Bar.

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Answered on 3/01/14, 12:06 pm
Edward Hoffman Law Offices of Edward A. Hoffman

You could appeal the decision to grant a nonsuit, arguing that the court should have allowed you to present your case. It sounds like the decision was proper, but perhaps it wasn't. If it was proper, then your own lawyer's conduct will not justify an appeal. You're stuck with the result, but you can sue him for malpractice.

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Answered on 3/01/14, 12:09 pm
Terry A. Nelson Nelson & Lawless

It sounds like you probably have a good malpractice case, IF you actually had a valid case to begin with, so that you can prove you were financially damaged by dismissal at his fault. In a malpractice case, you have to prove there was malpractice, and you have to prove your original case and damages at the same time.

IF the original case has merit [likelihood of winning and the other side found liable], value [substantial provable damages, such as medical injuries and financial losses] and collectability [defendant with sufficient insurance coverage or available assets to collect against], then your attorney damaged you with the dismissal, and your malpractice case has value itself.

Malpractice cases can sometimes be settled reasonably before filing suit, because the attorney doesn't want the bad publicity or risk. You need to consult with counsel to discuss the facts and issues in your case, and hire him to deal with the old attorney and 'threaten' the lawsuit. Only he will be taken seriously; you won't on your own.

If serious about doing so, feel free to contact me. I've been doing these litigation cases for over 35 years.

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Answered on 3/01/14, 4:34 pm


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