Fidelity Bank v. Kettler

• Decision Date: 29 July 1968
• Citation: 70 Cal.Rptr. 500,264 Cal.App.2d 481
• Court: California Court of Appeals Court of Appeals
• Parties: FIDELITY BANK, a corporation, Plaintiff and Appellant, v. Doris A. KETTLER, Defendant and Respondent. Civ. 32163.

Page 500

70 Cal.Rptr. 500

264 Cal.App.2d 481

FIDELITY BANK, a corporation, Plaintiff and Appellant, v. Doris A. KETTLER, Defendant and Respondent.

Civ. 32163.

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

July 29, 1968.

Rehearing Denied Aug. 20, 1968.

Hearing Denied Sept. 25, 1968.

Epport & Delevie, Los Angeles, and Murray Richtel, Beverly Hills, for appellant.

Doris A. Kettler, in propria persona, and Sanders & Moulton, Los Angeles, for respondent.

LILLIE, Associate Justice.

Plaintiff bank secured an order for defendant's appearance for examination as a judgment debtor (Code Civ.Proc. § 714); thereafter, upon defendant's motion, the order was quashed upon the ground that she had not been personally served therewith and that her counsel, in urging such motion, was making a special, and not a general, appearance in her behalf. From the order granting the motion plaintiff appeals.

On July 12, 1965, a judgment was entered in plaintiff's favor on written stipulation of the parties; prior thereto, defendant through her attorneys, Sanders & Moulton (by Robert H. Sanders), had answered and crosscomplained. Subsequently, pursuant to application dated August 26, 1965, an order was made requiring defendant's appearance on September 24, 1965, as provided by section 714, supra. She was purportedly served with a copy of the above order on September 18, 1965--the declaration of the process server states that he served the document on a woman answering defendant's general description after he had asked her if she was Doris Kettler and she did not respond (nor did she deny that she was such person). Defendant did not appear on September 24, 1965. On that date, according to the declaration of Robert H. Sanders in support of the subsequent motion to quash, Victor Epport, one of plaintiff's attorneys, accosted him in the courthouse and wanted to know why he was not in Department 3, the department designated in the order for defendant's examination; Sanders told Epport that he 'knew nothing about it and went to Department 3 with him after he advised (him) that DORIS A. KETTLER had been served with an Order for appearance in said Department.' The declaration further states that Sanders there and then advised the court that he knew nothing about the matter, 'that either my client had not been served with the Order or some misfortune had occurred to her and the Court stated under those circumstances the matter would be continued'; later Sanders contacted defendant who told him that she had not been served; on October 4, 1965, he wrote Epport, 'confirm(ing) my comment, stated to you in Court, that Doris Kettler was not served in the above matter.' To such letter Epport replied on October 6, 1965. ¹

Continuing with the chronology, a minute order of Department 3 for September 24, 1965, reads as follows: 'On motion of counsel for judgment debtor, this matter is ordered continued to October 7, 1965, at 9 AM in Department 3. A bench warrant (for her apprehension) is ordered issued and held to the continued date.' The minute order of October 7, 1965 (the continued date) reads: 'Doris A. Kettler fails to appear in Court. The bench warrant heretofore issued and held to this date is ordered released, returnable forthwith. Bail $100 plus $10 penalty assessment.' More than one year later, on November 4, 1966, defendant appeared in Department 3, according to the minutes for that date, 'in custody of the Deputy Sheriff on a bench warrant heretofore issued on 10--7--65 for her apprehension.' The minutes further recite that 'On motion of judgment debtor for a continuance for purposes of bringing on a motion to quash service of process herein, matter is ordered continued to November 23, 1966. * * *' Such order was made after defendant was sworn, answered several questions and then, in response to the court's inquiry, stated that she wanted Mr. Sanders to represent her in further proceedings. Although the minutes make no mention thereof, according to the declaration of Mr. Sanders supporting the motion and order, he received a call from his client then 'under arrest at the Courthouse' and subsequently appeared in Department 3 and secured the continuance mentioned in the minutes. Thereafter, on November 14, 1966, he noticed a motion for hearing on November 22, 1966, 'to quash the alleged service of order of the above entitled Court ordering said defendant's appearance as a judgment debtor * * * which allegedly was served on said September 18, 1965' at a Los Angeles address therein designated. As noted at the outset, such motion was based upon failure of service as well as upon the additional ground that since 'the appearance of Robert H. Sanders in Department 3 * * * on October 6 (sic), 1965, under the circumstances, did not constitute a general appearance by this defendant. * * *' the order for her appearance on the continued date (November 23) should be vacated.

Preliminarily, and as properly pointed out by plaintiff, the court should have denied the motion if it was of the opinion that defendant had actually been served; apparently being of a contrary mind, it must have concluded that the appearance by Mr. Sanders, stated to be on 'October 4 (sic), 1966' was not a general appearance. However, there was no court proceeding relating to the instant matter on October 4, 1966, although there was such a proceeding on November 4, 1966. The written motion to quash is also inaccurate in that instead of October 7, 1965, it refers to counsel's appearance on 'October 6 (sic), 1965' on which date there was likewise no court proceeding material to this controversy. (Nor has the confusion been clarified by the brief of defendant, prepared and filed in propria persona due to her inability to employ counsel on appeal.) We shall accordingly assume that the parties meant to refer to the November 4 (1966) and October 7 (1965) proceedings, respectively.

While the stated ground of the motion (in addition to failure of service) was counsel's asserted special appearance on October 7, 1965, the supporting declaration of Mr. Sanders makes no reference to his appearance on that date--too, the minute order for that date is silent with respect to any appearance by him. Instead, the declaration refers to his chance meeting with opposing counsel (Mr. Epport) at the courthouse on September 24, 1965, his subsequent appearance in Department 3 where he advised the court that he knew nothing about the matter, and the court's subsequent statement that 'under those circumstances (including the claim of failure of service) the matter would be continued.' After mentioning the exchange of correspondence with Mr. Epport, the...