Linsk v. Linsk

• Decision Date: 03 February 1969
• Citation: 74 Cal.Rptr. 544,449 P.2d 760,70 Cal.2d 272
• Parties: , 449 P.2d 760 Marian Carr LINSK, Plaintiff, Cross-Defendant and Appellant, v. Lester LINSK, Defendant, Cross-Complainant and Respondent. L.A. 29404.
• Court: California Supreme Court

Page 544

74 Cal.Rptr. 544

70 Cal.2d 272, 449 P.2d 760

Marian Carr LINSK, Plaintiff, Cross-Defendant and Appellant, v. Lester LINSK, Defendant, Cross-Complainant and Respondent.

L.A. 29404.

Supreme Court of California.

Feb. 3, 1969.

Howard M. Redlich and Harry M. Fain, Beverly Hills, for plaintiff, cross-defendant and appellant.

Robers & Harris, Beverly Hills, Gang, Tyre & Brown, Los Angeles, and Stanley Rogers, Beverly Hills, for defendant, cross-complainant and respondent.

MOSK, Justice.

Plaintiff wife brought an action for divorce against defendant husband, who filed a cross-complaint, also seeking a divorce. The original proceedings ended in a mistrial due to the disability of the trial judge who heard the evidence.

Subsequently plaintiff's attorney stipulated over his client's express objection that the case could be decided by a different judge entirely on the basis of the record previously made. Counsel for both parties were aware of plaintiff's objections, as was the presiding judge, who nevertheless accepted the stipulation and assigned the case to a trial court. There the trial judge, not shown by the record to be advised of the adamant position of plaintiff, examined only the record at the prior trial and, without hearing testimony, entered judgment against plaintiff on her complaint and in favor of defendant on his cross-complaint. Plaintiff appeals therefrom, maintaining that the court exceeded its jurisdiction in proceeding to determine the matter on the record of the prior trial pursuant to a stipulation made by plaintiff's attorney over her express objection. We conclude that this contention is meritorious and the judgment must be reversed.

Plaintiff and defendant were married in 1958 and separated in 1965. In November of that year plaintiff filed a complaint for divorce on the ground of extreme cruelty and defendant filed an answer and cross-complaint, also alleging extreme cruelty. A trial was held before Judge Albert E. Wheatcroft of the Los Angeles Superior Court. After 11 days of trial, during which testimony was taken and various exhibits received in evidence, the case was submitted on June 1, 1966. Shortly thereafter Judge Wheatcroft became incapacitated due to an accident, and he vacated submission of the case, declared a mistrial and transferred the action back to the presiding judge of the superior court.

On August 5, 1966, plaintiff, her attorney, and defendant's attorneys met with the presiding judge of the court in his chambers. Plaintiff's attorney reported that plaintiff had not signed a stipulation, apparently discussed previously between the parties, to submit the matter to the presiding judge on the record made during the trial previously held. The presiding judge indicated that he desired both parties to sign the stipulation and suggested that counsel explore the matter with plaintiff privately. Plaintiff and her attorney thereupon left the room. The attorney returned to chambers alone and informed both the judge and defendant's attorneys that plaintiff refused to sign the proposed stipulation. The judge then declared the attorneys alone could stipulate that the case be heard by another judge, who could decide the issues solely upon the transcript of the testimony and exhibits introduced at the previous trial unless that judge desired additional testimony. Such a stipulation was made by the attorneys. ¹

The case was assigned to Judge Bayard Rhone, who was not shown by the record to have been advised of the foregoing events. Ultimately he denied plaintiff a divorce and granted a divorce to defendant on the basis of the record made in the trial held before judge Wheatcroft. No additional testimony was taken. In a memorandum decision the judge indicated that plaintiff had not offered sufficient corroboration of her testimony to justify granting her a divorce.

Plaintiff moved for a new trial on the ground, inter alia, that her attorney did not have the authority over her objections to enter into a stipulation that the action could be decided upon the record made in the prior trial.

Section 283 of the Code of Civil Procedure provides that an attorney may bind his client 'in any of the steps of an action or proceeding.' The attorney is authorized by virtue of his employment to bind the client in procedural matters arising during the course of the action but he may not impair the client's substantial rights or the cause of action itself. (Gagnon Co., Inc. v. Nevada Desert Inn (1955) 45 Cal.2d 448, 460, 289 P.2d 466; ² Zurich G.A. & L. Ins. Co., Ltd. v. Kinsler (1938) 12 Cal.2d 98, 105--106, 81 P.2d 913; Duffy v. Griffith Co. (1962) 206 Cal.App.2d 780, 790, 24 Cal.Rptr. 161.) The extent of an attorney's powers in this regard has been aptly described as follows: 'In retaining counsel for the prosecution or defense of a suit, the right to do many acts in respect to the cause is embraced as ancillary, or incidental to the general authority conferred and among these is included the authority to enter into stipulations and agreements in all matters of procedure during the progress of the trial. Stipulations thus made, so far as they are simply necessary or incidental to the management of the suit, and which affect only the procedure or remedy as distinguished from the cause of action itself, and the essential rights of the client, are binding on the client.' (Armstrong v. Brown (1936) 12 Cal.App.2d 22, 28, 54 P.2d 1118, 1121.)

Under the foregoing concept it has been held that an attorney may refuse to call a witness even though his client desires that the witness testify (Nahhas v. Pacific Greyhound Lines (1961) 192 Cal.App.2d 145, 146, 13 Cal.Rptr. 299); may abandon a defense he deems to be unmeritorious (Duffy v. Griffith Co. (1962) supra, 206 Cal.App.2d 780, 793, 24 Cal.Rptr. 161; but see Robinson v. Sacramento City, etc., Sch. Dist. (1966) 245 Cal.App.2d 278, 287, 53 Cal.Rptr. 781); may stipulate that the trial judge could view the premises (Lachman Bros. v. Muenzer (1956) 143 Cal.App.2d 520, 525, 300 P.2d 295), that a witness, if called, would give substantially the same testimony as a prior witness (Newman v. Los Angeles Transit Lines (1953) 120 Cal.App.2d 685, 695, 262 P.2d 95) and that the testimony of a witness in a prior trial be used in a later action (Smith v. Whittier (1892) 95 Cal. 279, 289, 30 P. 529); and he may waive the late filing of a complaint (Union Storage & Transfer Co. v. Smith (1953), 79 N.D. 605, 58 N.W.2d 782, 786). ³

On the other hand, an attorney may not, by virtue of his general authority over the conduct of the action, stipulate that his client's premises constituted an unsafe place to work where such a stipulation would dispose of the client's sole interest in the premises (Harness v. Pacific Curtainwall Co. (1965) supra, 235 Cal.App.2d 485, 491, 45 Cal.Rptr. 454), nor may he stipulate to a matter which would eliminate an essential defense (Fresno City High School Dist. v. Dillon (1939) 34 Cal.App.2d 636, 646--647, 94 P.2d 86). He may not agree to the entry of a default judgment (Ross v. Ross (1953) 120 Cal.App.2d 70, 74, 260 P.2d 652), or a summary judgment against his client (Roscoe Moss Co. v. Roggero (1966) 246 Cal.App.2d 781, 786--787, 54 Cal.Rptr. 911), may not compromise his client's claim (Bice v. Stevens (1958) 160 Cal.App.2d 222, 231, 325 P.2d 244), or stipulate that only nominal damages may be awarded (Price v. McComish (1937) 22 Cal.App.2d 92, 99, 70 P.2d 978), and he cannot agree to an increase in the amount of the judgment against his client (Knowlton v. Mackenzie (1895) 110 Cal. 183, 188--189, 42 P. 580). Likewise, an attorney is without authority to waive findings so that no appeal can be prosecuted (Wuest v. Wuest (1942) 53 Cal.App.2d 339, 344--345, 127 P.2d 934, but see Fowlkes v. Ingraham (1947) 81 Cal.App.2d 745, 747, 185 P.2d 379, criticized in 1 Witkin, Cal. Procedure, § 47, pp. 58--59), or agree that a judgment may be made payable in gold coin rather than in legal tender (Merritt v. Wilcox (1877) 52 Cal. 238, 242).

An attorney is also forbidden without authorization to stipulate that the opposing party's failure to comply with a statute would not be pleaded as a defense (De Long v. Owsley's Ex'x (1948), 308 Ky. 128, 213 S.W.2d 806, 807), or to write a letter to a creditor asking it to join in a bankruptcy petition where he has been employed only to institute bankruptcy proceedings (B. F. Goodrich Rubber Co. v. Holland (1931) 159 Miss. 346, 131 So 882, 883), and he may not bond his client by a statement that it stands ready to pay a stated sum (Couch v. Landers (Mo. 1958) 316 S.W.2d 588, 592--593) or that if the jury finds for plaintiff the amount of the verdict would constitute a landlord's lien against livestock (Noska v. Mills (Tex.Civ.App.1940) 141 S.W.2d 429, 432).

The dichotomy in the foregoing cases appears to relate to whether the attorney has relinquished a substantial right of his client in entering into a stipulation on his behalf. If counsel merely employs his best discretion in protecting the client's rights and achieving the client's fundamental goals, his authority to proceed in any appropriate manner has been unquestioned. On the other hand, if counsel abdicates a substantial right of the client contrary to express instructions, he exceeds his authority.

It seems incontrovertible that the right of a party to have the trier of fact observe his demeanor, and that of his adversary and other witnesses, during examination and cross-examination is so crucial to a party's cause of action that an attorney cannot be permitted to waive by stipulation such right as to all the testimony in a trial when the stipulation is contrary to the express wishes of his client. ⁴ Indeed, it has been held that the very right to trial contemplates the 'right to be present at and to participate in every phase of the trial.' (Estate of Meyer (1953) 116 Cal.App.2d 498, 502--503, 251 P.2d 430, 433.) A trial...