32 Cal.App.4th 786, B079141, Wantuch v. Davis

Docket Nº:B079141
Citation:32 Cal.App.4th 786, 39 Cal.Rptr.2d 47
Opinion Judge:[12] Grignon
Party Name:Wantuch v. Davis
Attorney:[7] Albert John Wantuch, in pro. per., for Plaintiff, Cross-defendant and Appellant. [8] Holland & Donnelly and Kenneth D. Holland for Defendant and Respondent Bell Gardens Escrow Company. [9] No appearance for Defendant and Respondent Steve Cooper. [10] No appearance for Defendant, Cross-complai...
Case Date:February 24, 1995
Court:California Court of Appeals

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32 Cal.App.4th 786

39 Cal.Rptr.2d 47

ALBERT JOHN WANTUCH, Plaintiff, Cross-defendant and Appellant,


DANIEL GODFREY DAVIS et al., Defendants, Cross-complainants and Respondents.


California Court of Appeal, Second District, Fifth Division

February 24, 1995

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Albert John Wantuch, in pro. per., for Plaintiff, Cross-defendant and Appellant.

Holland & Donnelly and Kenneth D. Holland for Defendants, Cross-complainants and Respondents.



A prison inmate brought a pro se action against his former criminal defense attorney and others, alleging legal malpractice and other

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causes of action. The former attorney cross-complained for attorney fees arising out of the prior representation. When the prisoner failed to appear at a status conference, the trial court denied his motion for appointed counsel, denied his request to be transferred from state prison to court, struck his complaint and answer to the cross-complaint and entered judgment against him. We conclude the trial court abused its discretion in striking the prisoner's pleadings and entering judgment against him. We reverse and remand to the trial court for further proceedings consistent with the prisoner's right of access to the courts.

Facts and Procedural Background1

Albert John Wantuch hired Attorney Daniel Godfrey Davis to represent him against criminal charges. A written fee agreement obligated Wantuch to pay Attorney Davis "a flat fee of $150,000 for [Attorney Davis's] representation of [Wantuch] through the dismissal of criminal charges, acquittal of [Wantuch] at trial, filing of appropriate Notice of Appeal or termination of the Agreement, whichever should occur soonest." Wantuch represented in the fee agreement that he owned real property located at 7720 Ramish in Bell Gardens. Funds from the sale of the Ramish property were to be used to pay the attorney fees; a promissory note, deed of trust and grant deed secured the payment.

After a preliminary hearing, the criminal charges were dismissed, but refiled. After a second preliminary hearing, Wantuch was held to answer. Wantuch was represented by Attorney Davis at both preliminary hearings, but by the public defender at trial. Wantuch was convicted and sentenced to state prison for 66 years.

On May 26, 1992, Wantuch sued Attorney Davis for legal malpractice. The complaint also asserted causes of action for fraud, conversion and quiet title against Attorney Davis; a realtor, Steve Cooper; and Bell Gardens Escrow. Bell Gardens Escrow answered. Wantuch filed a lis pendens on the Ramish property and dismissed the quiet title cause of action. Attorney Davis answered.

On November 17, 1992, default was entered against Cooper. Wantuch filed an at-issue memorandum. Attorney Davis moved to strike the at-issue memorandum and remove the case from the civil active list on the ground of possible settlement. Wantuch opposed the motion to strike the at-issue memorandum and filed a motion requesting that he be transferred from state prison to attend all hearings in the case.

On December 17, 1992, Wantuch's request to be transferred from state prison and Attorney Davis's motion to strike the at-issue memorandum were

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denied. Attorney Davis's motion to file a cross-complaint was granted on January 8, 1993. The cross-complaint alleged causes of action against Wantuch for breach of the attorney fee agreement, quantum meruit and quiet title. Wantuch's motion to quash service of the cross-complaint was denied on March 5, 1993. Wantuch answered the cross-complaint on April 1, 1993.

Wantuch actively participated in the prosecution of the action. He gave notice of status conferences, propounded interrogatories to Attorney Davis and Cooper, moved to compel answers to interrogatories when responses were not forthcoming, withdrew his discovery motion after receiving responses, requested copies of the superior court file and filed a peremptory challenge to the trial judge pursuant to Code of Civil Procedure section 170.6. Throughout the proceedings, the trial court was aware that Wantuch was incarcerated.

The trial court ordered Wantuch to give notice of a status conference to be held on May 27, 1993. The order stated the matter had been assigned to a particular trial judge under the Trial Court Delay Reduction Rules and warned of possible sanctions for failure to appear, including striking of pleadings and entry of judgment. Wantuch gave notice of the status conference, which reiterated the assignment to a particular trial judge and the possible sanctions for failure to appear. The status conference was held on May 27, 1993; Attorney Davis and Bell Gardens Escrow appeared; Wantuch did not appear. As a result of Wantuch's nonappearance, a further status conference and hearing on an order to show cause for failure to prosecute were set for July 1, 1993. Wantuch was served in state prison with a copy of the minute order.

On June 15, 1993, Wantuch requested appointment of counsel on the ground he was an indigent prison inmate serving a 66-year term. Wantuch stated that if counsel were not appointed, he would "need a court order requiring him to be released for his court appearance ...." On July 1, 1993, Attorney Davis moved to expunge the lis pendens and for judgment. On that same date, the status conference was held; Wantuch again did not appear...

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