Fleming

An attorney files an action for his client. The attorney does no work on the case. The client gives the case to a second attorney who also does no work on the case. The second attorney also fails to tell the client he has not filed the form substituting himself in as the client's new attorney. Because of this inactivity, the case never gets to the point where there is a hearing or a deposition. The case is dismissed for failure to prosecute.

We draw upon that legal oxymoron known as "positive misconduct" to conclude that the negligence of the attorneys shall not be imputed to the client. (See Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892 [ 187 Cal. Rptr. 592 , 654 P.2d 775 ].)

Plaintiff Patricia M. Gallegos, now known as Patti Fleming, [1] appeals a judgment of dismissal entered after she failed to prosecute her action for nearly four years. (Code Civ. Proc., §§ 583.410 and 583.420.) We reverse and hold Fleming's attorneys' neglect should not be imputed to her under the discretionary dismissal statutes. ( Daley v. County of Butte (1964) 227 Cal. App.2d 380 [ 38 Cal. Rptr. 693 ].)

On September 14, 1988, plaintiff Fleming brought an action to…