Gordon v. Gordon

• Decision Date: 22 October 1956
• Citation: 145 Cal.App.2d 231,302 P.2d 355
• Court: California Court of Appeals Court of Appeals
• Parties: Mary Helen GORDON, Plaintiff and Respondent, v. James C. GORDON, Defendant and Appellant. Civ. 21590.

Page 355

302 P.2d 355

145 Cal.App.2d 231

Mary Helen GORDON, Plaintiff and Respondent, v. James C. GORDON, Defendant and Appellant.

Civ. 21590.

District Court of Appeal, Second District, Division 3, California.

Oct. 22, 1956.

Charles T. Lester, Altadena, for appellant.

Caryl Warner, Los Angeles, for respondent.

SHINN, Presiding Justice.

This is an appeal from an order granting plaintiff a new trial in an action for divorce.

On June 10, 1954, plaintiff, through her then attorney A. A. Goldstone, filed an action for divorce charging defendant with extrme cruelty. She sought all the community property, reasonable support for herself and their minor son, and custody of the child. Defendant answered and cross-complained, likewise seeking custody of the child and all the community property. Plaintiff answered the cross-complaint.

On September 16, 1954, Lester, defendant's counsel, filed a memorandum for setting for trial, which was served by mail on attorney Goldstone. By minute order entered December 27, 1954, the case was set for trial on April 7, 1955. Notice of trial was served by mail on attorney Goldstone on December 29, 1955 and filed on December 31, 1955. Upon receipt of the notice, Goldstone notified attorney Lester that he no longer represented plaintiff, that plaintiff was being represented by Jerry Geisler, and that he had forwarded the notice to Geisler's office. On January 3, 1955, attorney Lester learned from Geisler's office that Mr. Geisler was not representing plaintiff and that she was appearing in propria persona. Two substitutions of attorneys, from Goldstone to Geisler, and from Geisler to plaintiff, were filed on December 31, 1954, but neither was served on attorney Lester.

On March 25, 1955, attorney Lester caused another notice of trial to be mailed to plaintiff, in propria persona, at 300 North Garfield, Alhambra, California, which was the business address of plaintiff's mother's employer. An affidavit of service by mail was filed on April 7th, the case was called for trial in the master calendar department, and plaintiff having failed to appear, it was transferred to the short cause department to be heard as a default matter. Attorney Lester informed the court below that 'although I gave notice of trial, nobody appeared.' The court thereupon proceeded to hear evidence on defendant's cross-complaint, and at the conclusion of the testimony granted defendant an interlocutory decree, awarding him the community property, including all real and personal property, and custody of the two year old child. The decree recites, inter alia, that plaintiff had been duly served with notice of trial, but did not appear, either in person or by counsel.

Subsequently thereto, plaintiff, through her present counsel, made a motion for a new trial on the grounds that she was not served with a written notice of trial and that she had no actual notice of the trial of the cause on April 7, 1955. The motion was granted.

By affidavit of plaintiff filed in support of her motion she averred that she substituted attorney Goldstone out of the case on December 15, 1954 (prior to the mailing of the first notice of trial) and that thereafter he was no longer her attorney of record. She also averred that she never received the second notice of trial which was allegedly mailed to the Alhambra address and that her mother told her that such notice was never received there. Her mother averred that had a notice of trial been mailed to that address, she would have received it and forwarded it to plaintiff, and that no notice of trial was ever mailed to that address. In this connection, plaintiff states in her brief that attorney Lester admitted at the hearing of the motion for a new trial that the second notice of trial had been returned undelivered by the United States mail and that attorney Lester exhibited the returned envelope to the court; he also admitted that attorney Goldstone told him that his substitution out of the case had occurred prior to receipt of the first notice of trial. These statements are not contradicted by defendant in his reply brief.

The counter-affidavit of attorney Lester set forth the chronology of events to which we have already referred. It also stated that the court had granted defendant the right to see his son on alternate Sundays, that on plaintiff's refusal to comply with the order a bench warrant was issued on January 4, 1955, and that the true reason for plaintiff's failure to appear at the trial was to avoid service of the warrant.

The sole question involved on this appeal is whether the court abused its discretion in granting the motion. Section 594, subdivision 1 of the Code of Civil Procedure requires the service of notice of trial and when the adverse party fails to appear, proof of service. Compliance with this section is mandatory. Simon v. Tomasini, 97 Cal.App.2d 115, 217 P.2d 488; Lapique v. Kelley, 82 Cal.App. 586, 587, 256 P. 229; Beal v. Superior Court, 78 Cal.App. 33, 247 P. 922. And failure to give the five days' notice contemplated by the statute is a proper ground for the granting of a new trial, either on the theory that there has been an 'error in law', Smith v. Halstead, 88 Cal.App.2d 638, 641, 199 P.2d 379; Code Civ.Proc. § 657,...