Beckley v. Reclamation Bd. of State of Cal.

• Decision Date: 21 June 1957
• Citation: 312 P.2d 1098,48 Cal.2d 710
• Court: California Supreme Court
• Parties: Clara L. BECKLEY, as Administratrix, etc., Plaintiff and Appellant, v. The RECLAMATION BOARD OF the STATE OF CALIFORNIA et al., Defendants and Respondents. C. F. SEAVER and Emma F. Seaver, Plaintiffs and Appellants, v. The RECLAMATION BOARD OF the STATE OF CALIFORNIA et al., Defendants and Respondents. D. W. GEORGE and Helen May Forry, Plaintiffs and Appellants, v. The RECLAMATION BOARD OF the STATE OF CALIFORNIA et al., Defendants and Respondents. Katharine Frances ERISEY, Plaintiff and Appellant, v. The RECLAMATION BOARD OF the STATE OF CALIFORNIA et al., Defendants and Respondents. Sac. 6768.

Page 1098

312 P.2d 1098

48 Cal.2d 710

Clara L. BECKLEY, as Administratrix, etc., Plaintiff and Appellant, v. The RECLAMATION BOARD OF the STATE OF CALIFORNIA et al., Defendants and Respondents.

C. F. SEAVER and Emma F. Seaver, Plaintiffs and Appellants, v. The RECLAMATION BOARD OF the STATE OF CALIFORNIA et al., Defendants and Respondents.

D. W. GEORGE and Helen May Forry, Plaintiffs and Appellants, v. The RECLAMATION BOARD OF the STATE OF CALIFORNIA et al., Defendants and Respondents.

Katharine Frances ERISEY, Plaintiff and Appellant, v. The RECLAMATION BOARD OF the STATE OF CALIFORNIA et al., Defendants and Respondents.

Sac. 6768.

Supreme Court of California, In Bank.

June 21, 1957.

Earl D. Desmond, Edward Vayne Miller, Sacramento, Clarence O. Ward, Santa Barbara, Jack B. Tenney, Los Angeles, Edwin J. Regan, Weaverville, Richard J. Dolwig, So. San Francisco, James E. Cunningham, San Bernardino, Jess R. Dorsey, Bakersfield, Nathan F. Coombs, Napa, Ralph M. Brown, Modesto, Gordon A. Fluery, Sacramento, Gerald J. O'Gara, San Francisco, Randal F. Dickey, Alameda, S. C. Masterson, Richmond, and allen Miller, San Fernando, for appellants.

Edmund G. Brown, Atty. Gen., Walter S. Rountree, Asst. Atty. Gen., Willard A. Shank and F. G. Girard, Deputy Attys. Gen., for respondents.

CARTER, Justice.

These are appeals in four consolidated cases from orders denying motions to set aside and vacate judgments entered after general demurrers to the complaints were sustained without leave to amend.

Plaintiffs, appellants here, filed the original complaints for damages against defendants, respondents, for the negligent construction of the Sacramento River Flood Control Rpoject and negligent diversion of stream waters from the natural channel of the Sacramento River and onto lands belonging to plaintiffs on May 1, 1947. On September 3, 1952 the first amended complaints were filed. On December 1, 1952, defendants filed demurrers and motions to strike portions of the first amended complaints. By stipulation entered into on February 24, 1953 certain proposed amendments to the first amended complaints were filed with the county clerk to be submitted to the trial court for its aid in determination of the demurrers.

E. Vayne Miller and Earl D. Desmond were the sole attorneys of record for the plaintiffs in the four cases. Earl D. Desmond was then and still is a member of the Senate of the California Legislature from the 19th Senatorial District comprising Sacramento County. The California Legislature commenced the second portion of its regular 1953 session on February 24, 1953 and continued in session until june 10, 1953 when it took its final adjournment.

On May 11, 1953, Miller received from the Clerk of the Superior Court of Colusa County, a notice that the defendants' demurrer to the first amended complaints had been sustained without leave to amend. Subsequent to receiving the notice and during the same week, Miller visited Senator Desmond at his offices in Sacramento where a discussion was had concerning the ruling on the demurrer. It was agreed by and between them that a photostatic copy of the second amended complaint in Archer v. City of Los Angeles, 15 Cal.App.2d 520, 59 P.2d 605, would be obtained so that amendments could be proposed in the instant actions in accordance therewith to aid the trial court prior to entry of judgment in the four cases and that a motion would be made for a reconsideration of the ruling on the demurrers.

On May 20, 1953, Senator Desmond sent a Western Union telegram to Judge Hugh H. Donovan (the trial judge) as follows:

'Judge Hugh M. Donovan

Martinez, California

'Request entry judgment George Beckley Erisey and Seaver against State be not executed by Court until June 10th. Legislative duties necessitate continuance so I can study proceedings.

Senator Earl D. Desmond'

Judge Donovan stated to counsel in open court on the hearing of the motion to vacate that he did not receive the above telegram.

On june 3 1953, judgment was entered.

On june 5, 1953, Senator Desmond sent the following Western Union telegram to Judge Donovan:

'Judge Hugh Donovan

Martinez, California

'Request judgment be not entered Colusa cases until June 19th. Still attending legislature.

Senator Earl D. Desmond'

On June 19, 1953, Senator Desmond sent the following Western Union telegram to Judge Donovan:

'Judge Donovan

Martinez

'Have just returned from Legislative duties. Am studying State cases. Request judgment not be entered until June 26.

'Earl D. Desmond'

The latter two telegrams were admittedly received by Judge Donovan.

On September 10, 1953, after learning on August 4, 1953 that judgments had been entered, plaintiffs moved to vacate the judgments entered on June 3, 1953. The motion was made on the following grounds:

'This motion will be made upon the grounds that the said Judgment was entered through the mistake and inadvertence, surprise, or excusable neglect of counsel for the Plaintiffs, and upon the grounds that said Judgment was entered contrary to the provisions of sections 595, 1054, and 1054.1 of the Code of Civil Procedure of California.'

On November 30, 1953, the trial court rendered a memorandum of decision denying the plaintiffs' motions to vacate the judgmetns. In the memorandum of decision, the trial court stated that 'Plaintiffs have not met the requirements of said section. The submission of the photostatic copy of the complaint in the Archer v. (City of) Los Angeles case cannot be considered as a pleading here and the Court did instruct counsel for defendants to submit a written order to be signed by the Court, in accordance with the memorandum of decision.'

On December 3, 1953, counsel for plaintiffs filed with the County Clerk of Colusa County, a proposed amendment to the first amended complaints to be considered on plaintiffs' motion to vacate the judgments.

On December 7, 1953, counsel for plaintiffs filed notices of motions in the four actions on appeal for an order to set aside the memorancdum of decision and opinion of the court entered December 1, 1953, refusing to vacate the judgments, and to move the court for an order permitting the filing of the proposed amendment to the first amended complaints.

On December 14, 1953, the trial court denied plaintiffs' motion to set aside the decision to vacate the judgments.

On February 8, 1954, plaintiffs filed notice of appeal from the order denying their motion to vacate the judgments.

Plaintiffs' primary contention is that under the provisions of section 595 of the Code of Civil Procedure a mandatory duty devolved upon the trial court not to sign and enter the judgment here involved.

Section 595 then read, in part, as follows: 'The trial of any civil action, or proceeding * * * before a state board or commission or officer, irrespective of the date of the filing thereof or when it became at issue, or the hearing of any motion, demurrer, or other proceeding, shall be postponed when it appears to the court, board, commission, or officer before which such action or proceeding is pending that either a party thereto, or any attorney of record therein (whether he became an attorney of record before or after the commencement of a legislative session or before or after his appointment to a legislative committee) * * *. When the Legislature is in session or in recess such action or proceeding shall not, without the consent of the attorney of record therein, be brought on for trial or hearing before the expiration of thirty (30) days next following final adjournment of the Legislature or the commencement of a recess of more than thirty-five (35) days.'

Section 1054.1 of the Code of Civil Procedure provides, in part, as follows: 'When an act to be done, as provided by law or rule of court, relates to the pleadings in the action, or the undertakings to be filed, or the justification of sureties, or the preparation of bills of exceptions, or of amendments thereto, or to the service of notices other than of appeal and of intention to move for a new trial, the time allowed therefor, unless otherwise expressly provided, shall be extended by the judge of the court in which the action is pending, or by the judge who presided at the trial of said action, when it appears to the judge of any court to whom such application is made that an attorney of record for the party applying for such extension is a Member of the Legislature of this State, and that the Legislature is in session or in recess not exceeding a recess of forty (40) days or that a legislative committee of which he is a duly appointed member is meeting or is to meet within a period which the court finds does not exceed the time reasonably necessary to enable the member to reach the committee meeting by the ordinary mode of travel. When the Legislature is in session or in recess, extension shall be to a date not less than thirty (30) days next following the final adjournment of the Legislature or the commencement of a recess of more than forty (40) days * * *.'

The legislative purpose in enacting these two statutes was well stated in Bottoms v. Superior Court, 82 Cal.App. 764, 769, 770, 256 P. 422, 425, where it was said in discussing section 1054 (of which section 1054.1 was then a part) that attorney-legislators 'should be relieved by the law from concerning themselves with extraneous matters or interests not pertaining to their legislative duties while they are in attendance on sessions of the Legislature and actually prosecuting their duties as such. On the other hand, the suggestion may be ventured, significant in the present connection, that a practicing lawyer deals with a science involving the most abstruse learning, in its remedial and procedural as well as its substantive branch, and in conserving or preserving, or protecting or defending the rights of his clients when such rights are questioned in the judicial tribunals, the demand for his undivided attention to...