Draus v. Alfred M. Lewis, Inc.

• Decision Date: 23 April 1968
• Citation: Draus v. Alfred M. Lewis, Inc., 68 Cal.Rptr. 154, 261 Cal.App.2d 485 (Cal. App. 1968)
• Court: California Court of Appeals
• Parties: Peter A. DRAUS, Individually, Plaintiff and Appellant, v. ALFRED M. LEWIS, INC., a corporation, doing business as A. M. Lewis, Inc., and Harold Elroy Frick, Defendants and Respondents. Civ. 8698.

Page 154

68 Cal.Rptr. 154

261 Cal.App.2d 485

Peter A. DRAUS, Individually, Plaintiff and Appellant, v.ALFRED M. LEWIS, INC., a corporation, doing business as A. M. Lewis, Inc., and Harold Elroy Frick, Defendants and Respondents.

Civ. 8698.

Court of Appeal, Fourth District, Division 2, California.

April 23, 1968.

Peter G. Nihill, Anaheim, for plaintiff and appellant.

Kingle, Rodiger, Graf, Dewberry & Spriggs and S. D. Smith, Santa Ana, for defendants and respondents.

OPINION

KERRIGAN, Associate Justice.

The plaintiffPeter A. Draus, individually, and as guardian ad litem of his 20-year-old daughter, Eileen May Draus, filed an action to recover damages as a result of an auto-tractor collision which occurred in April 1965 in the County of Orange.The complaint stated: that the plaintiff-minor was driving a model 1963 Buick owned by the plaintiff-father; that the collision occurred as a result of the defendants' negligence; that the father, in his individual capacity, was entitled to recover damages consisting of $606.50 medical expenses incurred on behalf of the minor, $100 for loss of the use of his automobile, $1,225 damages to his Buick, and.$257.57 costs incurred in the investigation of the plaintiff-minor's claim.The complaint also contained an additional cause of action for recovery of $20,000 general damages for the injuries sustained by the plaintiff-minor.The plaintiff-father was not personally involved in the accident.

The defendantsAlfred M. Lewis, Inc., a corporation, and the defendantHarold Elroy Frick appeared in the action.Subsequently, a pretrial order was entered wherein the defendantAlfred M. Lewis, Inc. admitted that it was the owner of the tractor involved in the collision and that the defendant-Frick was its employee and acting within the scope of his employment at the time of the collision.The trial order also reflects that in addition to general damages, the plaintiff-minor also claimed loss of earnings in the sum of $732.76, and that the plaintiff-father's total special damages were in the sum of $2,214.07.At the time of the pretrial conference on September 16, 1966, a trial date of October 19, 1966 was assigned.

When efforts to negotiate a settlement proved fruitless, defense counsel, on September 29, submitted an 'Offer to Allow Judgment' to plaintiffPaul A. Draus and to his attorney, Peter G. Nihill, wherein the defendants offered to allow judgment to be taken against them 'in favor of the plaintiff, Peter A. Draus' in the sum of $2,500.This offer was transmitted in copy form and the original apparently was retained by defense counsel.Plaintiff's attorney received the offer and on September 30 executed a written 'Acceptance of the Offer to Allow Judgment,' which stated that 'PlaintiffPaul A. Draus, Individually,' accepted the $2,500 settlement figure.(Emphasis supplied.)A copy of the acceptance was forwarded to defense counsel by mail and the original acceptance was filed with the clerk on October 3, 1966.When plaintiff's counsel learned the original offer had not been filed, he caused the copy of the offer to be filed with the court clerk.

On October 3, the defendants, through their counsel, served a 'Rejection of the Acceptance of the Offer to Allow Judgment,' which stated, in effect, that the plaintiff-father's acceptance of the $2,500 solely in settlement of his own claim was not agreeable, but that 'the defendants * * * again hereby offer to allow judgment to be taken against them and in favor of the plaintiff, Paul A. Draus, individually, and as guardian ad litem for Eileen May Draus' for $2,500, exclusive of the property damage relating to the plaintiff-father's Buick.

On October 4, 1966, Peter G. Nihill, counsel of record for the plaintiff-father and plaintiff-minor, filed a 'Notice of Motion for Withdrawal and Discharge of Attorney' in which he requested an order authorizing him to withdraw as attorney for the plaintiff, Paul A. Draus, in the latter's Representative capacity as guardian ad litem of the minor.On October 19 the motion was granted.

When the clerk of the court declined to enter judgment in accordance with the code provision governing statutory offers and acceptances, counsel for plaintiff-father filed a 'Notice of Motion to CompelDefendants to File the Original Offer to Allow Judgment and for an Order to Prepare Judgment in Accordance with Code of Civil Procedure, section 997,' and scheduled the hearing for January 3, 1967.In the interim, defense counsel had negotiated a settlement with the mother of the plaintiff-minor, who had been awarded legal custody of the daughter in a divorce proceeding and who had also undertaken the role of guardian ad litem after the father's attorney, Peter G. Nihill, had been allowed to withdraw from his representation of the minor.Coincidentally, the hearing on the petition to compromise the minor's claim was scheduled for hearing on the same date set for hearing on plaintiff's motion to secure a judgment in accordance with the statute.

On the date of hearing of the petition and motion, the Honorable Samuel Dreizen approved the minor's compromise, and the Honorable Herbert S. Herlands denied the father's motion to compelthe defendants to file the original offer to allow judgment and for an order to the clerk to prepare judgment.However, in the minor's compromise proceeding, Attorney Peter G. Nihill was granted the sum of $500 for services rendered the plaintiff-minor, and the fatherPeter A. Draus, in his capacity as former guardian ad litem, was allowed $50 for investigation fees.The balance of the $2,500 settlement was deposited in trust.

This appeal is from the trial court's minute order denying plaintiff's motion under section 997 of the Code of Civil Procedure.

The voluminous briefs before us are remarkably devoid of authority, and merely reflect the fact that a bitter, personal animosity exists between the attorneys because of their handling of their clients' interests at the superior court level.Charges and counter-charges of unethical practice and bad faith permeate the record.While emotional conflicts involving legal advocates are understandable, the heat engendered thereby has not clarified the issues.

Although not raised by the parties, the crucial question presented relates to the appealability of the order denying relief under section 997 of the Code of Civil Procedure.The statute, prior to its 1967amendment, provided:

'The defendant may, at any time before the trial or judgment, serve upon the plaintiff an offer to...