Daley v. Butte County

• Decision Date: 22 May 1964
• Citation: 38 Cal.Rptr. 693,227 Cal.App.2d 380
• Court: California Court of Appeals Court of Appeals
• Parties: Mildred T. DALEY, Plaintiff and Appellant, v. COUNTY OF BUTTE, Defendant and Respondent. Civ. 10617.

Page 693

38 Cal.Rptr. 693

227 Cal.App.2d 380

Mildred T. DALEY, Plaintiff and Appellant, v. COUNTY OF BUTTE, Defendant and Respondent.

Civ. 10617.

District Court of Appeal, Third District, California.

May 22, 1964.

Hearing Denied July 15, 1964.

P. M. Barceloux, Burton J. Goldstein, Goldstein, Barceloux & Goldstein, Chico, for appellant.

Robert B. Kutz, Chico, for respondent.

FRIEDMAN, Justice.

Acting under the two-year discretionary dismissal provision of section 583, Code of Civil Procedure, the lower court ordered dismissal of this wrongful death action for lack of prosecution. Having secured new attorneys, plaintiff Mildred T. Daley then moved under section 473, Code of Civil Procedure, to vacate the dismissal on the ground of her mistake, inadvertence, surprise and excusable neglect. She appeals from denial of the latter motion.

Plaintiff is the widow of Roger R. Daley, who died on January 29, 1959, as the result of a collision between his pickup truck and a sheriff's patrol car driven by Deputy Sheriff Charles R. Brown, Jr., of Butte County. Brown too died as a result of the accident. She filed a claim for damages with Butte County, which was rejected. She then filed the present wrongful death action, naming the county as defendant. The complaint was filed on July 27, 1959. Her attorneys of record were the firm of Taft, Wright and Hopkins of Vallejo. Actually, Mrs. Daley had sought the services of Mr. Cranson L. Hopkins of that firm and he had undertaken to represent her. Later there were changes either in the firm name or in the identity of Mr. Hopkins' associates. Mr. Hopkins' name was always included in that of the firm.

Butte County filed its answer on September 2, 1959, denying negligence of its employee and alleging contributory negligence of plaintiff's decedent. Attorney Robert B. Kutz of Chico appeared as counsel of record for the county.

On January 14, 1960, the widow and children of Deputy Sheriff Brown filed an independent wrongful death action, naming Mrs. Daley as defendant in her capacity as administratrix of her husband's estate. We shall refer to that action as Brown v. Daley. The plaintiffs in Brown v. Daley were represented by attorney J. R. King, Jr., of Oroville. The insurance carrier for Daley undertook defense of the action. On February 16, 1960, the carrier's attorneys, Kroloff, Brown, Belcher and Smart of Stockton, filed an answer as counsel of record for Mildred Daley, administratrix.

Several months passed. On May 16, 1960, Taft, Wright and Hopkins filed a memorandum to set Daley v. Butte County for trial. This step elicited a responsive move in Brown v. Daley. In the latter action the Kroloff firm, acting on behalf of Mrs. Daley as administratrix, moved to consolidate the two cases for trial. The motion was heard on June 6, 1960. Mr. Hopkins, as attorney for the plaintiff in Daley v. Butte County, did not oppose consolidation, although Mr. Kutz, on behalf of Butte County, did. The issues being the same in both actions, the court ordered their consolidation.

The next step was a motion filed by Mr. Kutz on behalf of Butte County to require joinder of Fred R. Daley, a son of decedent, as a party in Daley v. Butte County. The motion was heard on June 20, 1960. Although notified, Taft, Wright and Hopkins did not appear. The court granted the motion, ordering the plaintiff Daley to join her son, Fred R. Daley, as a party; and, if the latter refused to join, that an amended summons be issued and served upon him.

A few weeks later, on July 7, 1960, Mr. Kutz signed and sent Mr. Hopkins a stipulation reciting that Fred R. Daley had refused to join and that the pleadings be deemed amended to name him as a defendant. Mr. Hopkins kept this stipulation for approximately one and one-half years, signing it on some unknown date and mailing it to the clerk for filing on December 19, 1961.

On June 22, 1960, a formal order consolidating the two actions for trial was filed. The order provided that the trial of Brown v. Daley be stayed until Daley v. Butte County was at issue. Although the consolidated actions were to have been pretried on July 5, 1960, the pretrial was dropped, since Daley v. Butte County was no longer at issue.

The record then subsides into more than a year of silence, although some depositions might have been taken. On August 22, 1961, attorney J. R. King, Jr., as counsel for the Browns, filed a memorandum to set the consolidated cases for trial. Butte County filed a memorandum opposing the trial setting on the ground that Mrs. Daley had not joined her son as a party and that Daley v. Butte County was thus not at issue. On October 20 the court on its own motion fixed December 18, 1961, as the date for a pretrial conference and all counsel were notified. On the latter date, counsel appeared for all parties except for Mrs. Daley in her action against the county. Taft, Wright and Hopkins did not appear. Since Fred R. Daley had never been served with process in Daley v. Butte County, that action was not at issue and the court continued the pretrial conference to February 26, 1962.

One day after the fruitless pretrial conference of December 18, Mr. Hopkins mailed to the clerk for filing the stipulation which Mr. Kutz had signed and sent to him one and one-half years earlier.

Pretrial conference was called on February 26, 1962, then continued to March 26, called on the latter date and continued to April 16. All counsel were notified of these continuances. According to a chronological account which the trial judge made in the course of subsequent proceedings, all these postponements were ordered because of the continued failure to serve process on Fred R. Daley. Although there is some indication that the Kroloff firm undertook to 'cover' these pretrial conferences as a courtesy to Mr. Hopkins, the same chronological account states that there was no appearance of counsel on behalf of plaintiff Daley at these pretrial conferences.

There is nothing in the record before us to suggest that Mr. Hopkins was attempting to effect service on Fred R. Daley or encountering any difficulty in serving him. Indeed, an opinion filed later by the trial judge demonstrates that Mr. Hopkins had not even requested issuance of an appropriate summons. If Mr. Hopkins was encountering any genuine difficulty in complying with the order for joinder, the record shows no attempt to communicate it to the court. One fruitless pretrial conference followed another; all that the trial court had from plaintiff's counsel was inaction, silence and disregard.

In the meanwhile Mrs. Daley had become worried over the lack of progress in her lawsuit. She made 12 to 15 attempts to reach Mr. Cranson L. Hopkins by telephone. (She lived in Oroville, while Mr. Hopkins' office was in Vallejo.) On each occasion Mr. Hopkins' secretary informed her that Mr. Hopkins was out of town. On each occasion Mrs. Daley left a request that Mr. Hopkins telephone her. On no occasion did he do so. In February 1961 Mrs. Daley became ill. She was confined to bed until September 1961. During the latter month she spoke with Albert M. King, an Oroville attorney. She told him of her inability to secure any response or action from Mr. Hopkins. She was able to reach Mr. Hopkins by telephone during late September or early October 1961. Mr. Hopkins agreed to withdraw from the case and permit substitution of Albert M. King as her counsel. He said he would contact Mr. King immediately.

Mr. King, however, had told Mrs. Daley that he could not actually represent her, since his brother, J. R. King, Jr., was counsel for the plaintiffs in the Brown action. He undertook to get a substitution of attorneys from Mr. Hopkins and to secure other counsel for her. On October 31 Albert King sent Mr. Hopkins a substitution of attorneys and a letter requesting copies of the pleadings. Mr. Hopkins did not respond. On December 4, 1961, Mr. King sent Mr. Hopkins a follow-up letter. Finally, on April 9, 1962, more than five months after receiving the requested substitution, Mr. Hopkins signed it and sent it to Mr. King.

Meanwhile, on April 2, 1962, Butte County filed a notice of motion to dismiss Mrs. Daley's action against it for lack of prosecution. No substitution of attorneys was on file, thus notice of the motion was served by mail on Taft, Wright and Hopkins. It was only after receiving notice of the dismissal motion that Mr. Hopkins sent the file, including the signed substitution of attorneys, to Albert King. The motion to dismiss was heard and granted on April 16. No one appeared to resist it. Several days later, on April 19, the court filed a formal order, setting forth at some length the nonappearance and inaction on the plaintiff's part which prompted granting of the motion. Not until April 25 did Albert King become aware of the motion or the dismissal.

Several weeks later, on May 10, the firm of Goldstein, Barceloux and Goldstein appeared as counsel for the plaintiff in Daley v. County. The appearance took the form of a notice of motion seeking to set aside the judgment of dismissal. The motion was based on Code of Civil Procedure, section 473 and grounded on the plaintiff's mistake, inadvertence, surprise and excusable neglect. Supporting affidavits of Mrs. Daley and Albert M. King were filed, setting forth some of the matters recounted above. A third affidavit was that of Bernice Downer, a secretary in Mr. King's office. Mrs. Downer's affidavit sought to explain the delay between November 1961 and April 1962 in substituting Mr. Hopkins out of the case, that is, insofar as the delay might be attributed to causes other than Mr. Hopkins himself. According to Mrs. Downer, Mrs. Daley made numerous inquiries as to whether the substitution of attorneys had been received from Mr. Hopkins; after the follow-up letter of December 4, 1961, Mrs. Downer was working part-time because of illness and had some trouble with her memory; she mistakenly told...