Bird v. McGuire

• Decision Date: 29 May 1963
• Citation: 216 Cal.App.2d 702,31 Cal.Rptr. 386
• Parties: Lee BIRD, Plaintiff and Respondent, v. Kenneth B. McGUIRE, individually and doing business as McGuire Logging Company, and Siskiyou Plywood Company, (now Hampton Plywood Company), Defendants and Appellants. Civ. 20682.
• Court: California Court of Appeals Court of Appeals

Page 386

31 Cal.Rptr. 386

216 Cal.App.2d 702

Lee BIRD, Plaintiff and Respondent, v. Kenneth B. McGUIRE, individually and doing business as McGuire Logging Company, and Siskiyou Plywood Company, (now Hampton Plywood Company), Defendants and Appellants.

Civ. 20682.

District Court of Appeal, First District, Division 1, California.

May 29, 1963.

Worthington, Fields & Worthington, San Francisco, for appellant Kenneth B. McGuire, individually and dba McGuire Logging Co.

Frederick L. Hilger, Eureka, for respondent.

MOLINARI, Justice.

This is an action for personal injuries sustained by plaintiff logging driver when a log rolled off a truck during a loading operation. The jury verdict was in favor of plaintiff against defendants, Hampton Plywood Company, ¹ a corporation, the owner of timber rights on the tract of land on which the accident took place, Kenneth B. McGuire, ² a logger engaged in the removal of felled logs from said land, Richard Cathey, ³ a tractor operator, and Lawrence Head, ⁴ a log loader. The judgment against Cathey and Head was pursuant to a directed verdict. ⁵ All the defendants were alleged to have been negligent in the loading of said log. Hampton and McGuire both moved for a new trial, which motions were denied, and they both appeal. Cathey and Head have not appealed.

A number of questions have been raised by appellants on this appeal. In view of our determination that the judgment against McGuire was erroneous because of failure to comply with section 594 of the Code of Civil Procedure and Rule 8.12 of the Superior Court (now rule 220(b) of the Calif.Rules of Court), ⁶ thus requiring a remand of the cause for a retrial as to appellants, it is unnecessary to determine questions not related to the failure to give such notice. Our determination is compelled by the events associated with the proceedings prior to trial. ⁷

The Record

The complaint in this action was filed on September 16, 1958, the law firm of Hilger & Thomas appearing for plaintiff. On June 18, 1959, and August 5, 1959, answers to the complaint were filed by defendants McGuire and Cathey, respectively. In said answers Charles V. Moore, Esq., appeared as the attorney of record for the said defendants. On October 26, 1959, defendant Hampton filed its answer, wherein the law firm of Worthington, Fields & Worthington was designated as the attorneys of record for said defendant. Said answer recited that Hampton was the successor to Siskiyou Hardwood Company, ⁸ sued in the complaint as Siskiyou Plywood Company. Notice of the taking of the deposition of Cathey was thereafter given by said attorneys for plaintiff to the above named attorneys, respectively, for Hampton, McGuire and Cathey. On July 13, 1960, a request to enter the default of defendant Head was filed. The 'Memorandum to Set,' filed on July 13, 1960, by plaintiff, and served on the attorneys therein named, listed several new attorneys as being attorneys for certain of the parties. These attorneys had not theretofore appeared either by way of substitution, change or notice of association, nor had they appeared on any of the pleadings. ⁹ In said memorandum, Charles V. Moore, was designated as the attorney for Cathey and McGuire.

On October 31, 1960, Hilger & Thomas, as attorneys for plaintiff, noticed the taking of the deposition of defendant McGuire. This notice was served on attorneys Hill & Dalton, Charles V. Moore, and Worthington, Fields & Worthington. This deposition was ultimately taken on January 11, 1961, at which time the law firm of Woodman, Leddy & Sautter, represented by Edward Sautter, appeared therein as the attorneys for McGuire. No written notice of change or substitution of this law firm for attorney Moore was filed, entered, or made as required by section 284 of the Code of Civil Procedure, ¹⁰ nor was notice thereof given as required by section 285 of said code. ¹¹

Notice of the pretrial conference, set for June 1, 1961, was thereafter given by the clerk of the court by mail on May 5, 1961, to all of the attorneys who were named in the memorandum to set, excepting attorney Moore. No such notice was given to the Woodman, Leddy & Sautter firm. Pretrial statements were filed only by Hilger & Thomas, as attorneys for plaintiff, and by Worthington, Fields & Worthington, as attorneys for Hampton. The pretrial conference order was made on June 15, 1961, and filed on June 26, 1961. The said order recites that the pretrial conference was held on June 1, 1961; that Hilger & Thomas and Speer & Creasey appeared as counsel for plaintiff and that the following counsel appeared 'for defendant----:' Hill & Dalton, Worthington, Fields & Worthington, A. V. Prothero, and Bronson, Bronson & McKinnon. The order does not indicate that either attorney Moore or any of the members or representatives of the Woodman, Leddy & Sautter firm were present. Said order states that 'The matter is set for trial August 15, 1961, 9:30 A.M., Department One.' The order does not contain a waiver of notice of time and place of trial.

The record discloses that on July 14, 1961, there was filed in the proceedings a document entitled 'Notice of Hearing,' which reads as follows: 'Trial by jury reset for August 16, 1961 Dept. 1 at 1:30 P.M. This notice was mailed on July 14, 1961 addressed as below: ¹² Fred J. Moore, Jr., County Clerk By D. H. Martell, Deputy Clerk.'

On July 24, 1961, the law firm of Woodman, Leddy & Sautter filed a notice of motion for an order allowing them to withdraw as attorneys for McGuire and to substitute McGuire, in propria persona, in their place and stead. Said motion was supported by the affidavit of Edward P Sautter, stating that the said law firm 'has represented the Defendant Kenneth B. McGuire, individually and doing business as McGuire Logging Company, during certain aspects of the above entitled action and now finds it desirous of withdrawing as attorney for said Defendant Kenneth B. McGuire * * *.' Said motice specified that the motion would be made on August 7, 1961. Attached to said notice and affidavit was an affidavit of mailing showing service by mail on July 20, 1961, upon Hilger & Thomas, Speer & Creasey, Charles V. Moore, Worthington, Fields & Worthington, Hill & Dalton, Bronson, Bronson & McKinnon, A. V. Prothero, and upon McGuire. An affidavit subscribed and sworn to on August 4, 1961, by one John W. Francis, purporting to be a member of the Sheriff's Office of Teton County, State of Wyoming (filed on August 15, 1961), states that he personally served McGuire with the 'Notice of Motion For Withdrawal of Attorneys' and the affidavit of Edward P. Sautter on July 25, 1961.

On July 27, 1961, attorney Charles V. Moore, filed a notice of motion to be relieved 'as attorney of record' in said matter. Said notice likewise specified that the motion would be made on August 7, 1961. Said notice was supported by the affidavit of said Charles V. Moore. The said affidavit stated that Moore had originally filed the answer in said action and became attorney of record for McGuire; that he (Moore) thereafter became associated with the law firm of Hill & Dalton and a conflict of interest arose; ¹³ that McGuire was informed of said conflict and that McGuire thereupon procured the services of the law firm of Woodman, Leddy & Sautter; that the latter firm appeared for McGuire at the pretrial conference; and that through inadvertance a formal substitution of attorneys was never executed. Attached to said motion and affidavit was an affidavit of service by mail on July 27, 1961, upon McGuire at an address in California and at Jackson Hole, Wyoming, and upon the following attorneys: Hilger & Thomas, Hill & Dalton, Woodman, Leddy & Sautter, and Worthington, Fields & Worthington.

On August 7, 1961, the trial court heard both motions for withdrawal of attorneys and making its order relieving attorney Moore as attorney of record for McGuire on the same day; and on August 11, 1961, made its order allowing Edward P. Sautter and the law firm of Woodman, Leddy & Sautter to withdraw as attorneys for McGuire, and directing that McGuire 'be represented as of record in pro per * * *.' No notice of such order was given by attorney Moore to McGuire or to any of the other parties to the litigation or their attorneys. The Woodman firm gave a 'Notice of Substitution of Attorneys by Order of Court' by mail on August 11, 1961, to McGuire and to the attorneys to whom it had given notice of motion for withdrawal. Thereafter, and on the 14th and 15th of August 1961, telegrams were sent by McGuire from Jackson, Wyoming, to Honorable W. G. Watson, Jr., ¹⁴ requesting a continuance of the trial. ¹⁵

The cause came on for trial on August 16, 1961, at 1:30 p. m. The minutes of the court for said day disclose that the following counsel were present: Frederick W. Hilger, representing plaintiff; Leonard Worthington of Worthington, Fields & Worthington, and John Dalton of Hill & Dalton, representing Hampton. The minutes do not disclose the presence of attorney Moore, but the reporter's transcript reveals that the trial court noted his presence as attorney for defendant Cathey. The said minutes bear the following notation: 'Defendant McGuire was not present and was not represented by counsel.' The said minutes and reporter's transcript also reveal that a discussion took place between the court and counsel present prior to the commencement of the trial with reference to McGuire's request for a continuance. During said discussion Judge Watson made known the contents of the two telegrams he had received from McGuire, and also informed counsel that he had been contacted by a Mr. Burns, who represented that he was an attorney in Jackson, Wyoming, and that he was calling for McGuire. Counsel for plaintiff and for defendant Hampton both objected to a continuance, whereupon the court ruled that since no formal motion for continuance was before the court the motion for a continuance would be denied...