A ten-year delay due to attorney misrepresentations was excused by the appellate court in In re Grunau, 169 Cal.App.4th 997 (2008). The court in part said that “it does not lie in the state’s mouth to object to relief, since it has in a sense warranted the attorney’s competence by issuing him a license.” Id. at 1003 (emphasis added).
Grunau is best summarized by it’s opening paragraph: “Defendant Mark Daniel Grunau seeks recall of the remittitur in this matter on the ground that the 1997 dismissal of his appeal resulted from neglect and misconduct by his appellate attorney, and that relief was not sought sooner because that attorney consistently and plausibly misrepresented the status of the case to defendant through defendant’s father. We initially denied defendant’s motion but were directed by the Supreme Court to reconsider the matter. Having done so, we are persuaded that defendant is entitled to the relief he seeks. Accordingly, we will recall the remittitur so that the appeal may be determined on the merits.” 169 Cal.App.4th 1000. Grunau was a case involving sex convictions. Grunau’s attorney had timely filed a notice of appeal but thereafter failed to diligently prosecute the appeal, and lied to Grunau’s father, stating the appeal was progressing when it had been dismissed (Grunau himself was unable to communicate with his lawyer).
Defendant relied on his father to communicate with Foley regarding the appeal, in part because his own attempts to contact Foley were largely unsuccessful. Everything defendant learned about his case came from his parents. Between 1996 and 2004, Mr. Grunau called Mr. Foley monthly, sometimes weekly. In September 2002, he discovered that Foley’s phone had been disconnected, but tracked Foley down by using the phone book to find someone who knew Foley’s mother. According to Mr. Grunau, Foley at no time disclosed that the appeal had been dismissed. On the contrary, from 1996 to 2004, in response to repeated inquiries, Foley consistently assured Mr. Grunau that the appeal was proceeding in due course.
Despite Foley’s assurances, Mr. Grunau attempted to independently confirm that the appeal was pending by contacting the superior court. Those attempts were unsuccessful. Eventually-on August 24, 2004-Mr. Grunau contacted this court, and was told that the appeal had been dismissed. He went to the law library to research a possible remedy. He also continued to attempt to communicate with Foley regarding a possible solution. Finding none, he again telephoned this court in November and was directed by the clerk’s office to contact the Sixth District Appellate Project. He did so that same month.