Lund v. Superior Court of Orange County

Decision Date21 August 1964
Citation61 Cal.2d 698,394 P.2d 707,39 Cal.Rptr. 891
CourtCalifornia Supreme Court
Parties, 394 P.2d 707 Robert H. LUND et al., Petitioners, v. The SUPERIOR COURT OF ORANGE COUNTY et al., Respondents; William Paul BLAIR et al., Real Parties in Interest. L. A. 27892.

Robert H. Lund and John R. Brunner, Long Beach, in pro. per., Robert M. Lawlis, Los Angeles, and Floyd H. King, Long Beach, for petitioners.

No appearance for respondents.

Blair & Raydon and James P. Young, in pro. per., Los Angeles, for real parties in interest.

PETERS, Justice.

An alternative writ of prohibition issued in this case restraining respondent court from proceeding further to enforce its order requiring petitioners to make payment to several of the real parties in interest, and also restraining respondent sheriff from making levy under that order. Further review of the facts and the law demonstrates that the trial court's order in question was beyond the jurisdiction and power of that court, and that a peremptory writ should issue.

The facts, set forth in chronological order, are as follows:

On April 4, 1958, Harry W. Saulsbery and Helen W. Saulsbery (hereafter referred to as plaintiffs) filed in respondent court a civil action (No. 76253, hereafter referred to as the principal action) in which Mid Continent Oil Corporation was named as the principal defendant. Subsequently, and during the course of the action, that corporation changed its name to Mid Counties Oil Corporation. It will hereafter be referred to as the defendant. Friis & Gra were, at that time, attorneys of record for plaintiffs.

On June 9, 1958, defendant filed its answer, John R. Brunner, one of the petitioners, being its attorney of record. Thereafter pretrial conference was held and the action was set for trial on January 15, 1959.

On January 14, 1959, Phillip E. Poppler and John R. Brunner were substituted as attorneys of record for defendant, 1 and the trial date was continued in order to allow the parties to conclude certain discovery proceedings.

On March 23, 1959, the case was taken from the trial calendar and restored to the pretrial calendar. On May 25th it was dropped from the pretrial calendar.

Nothing of significance occurred during the years 1960-1962 other than the above- noted changes in the law firm of which petitioners Brunner and Lund are members, the change in defendant's name, and some correspondence between the attorneys. During this period plaintiffs' attorneys received at least one letter from defendant's attorneys which was on the letterhead of 'Lund, Poppler & Brunner,' but which was signed simply 'John R. Brunner.'

On February 21, 1963, William Paul Blair (one of the real parties in interest) was formally substituted for Friis & Gra as attorney for plaintiffs. Thereafter, and on a date not noted, Blair filed formal notice of association of Gerald T. Raydon and James Patterson Young (both also real parties in interest), indicating that the three had formed the law firm of Blair & Raydon.

On April 5, 1963, five full years had elapsed from the date of filing the complaint in the principal action.

On June 26, 1963, plaintiffs moved for an order allowing them to file a supplemental complaint. Although the various parties to the instant proceeding seek to create an issue regarding Lund's status as an attorney of record, the actual notice of this motion has not been included among the documents which have been filed as exhibits to the petition and reply in the instant proceeding. We are therefore uninformed as to whether that document was addressed solely to Brunner, or was addressed to Brunner and Lund jointly as attorneys for defendant.

On August 2, 1963, the motion was heard. John R. Brunner appeared as attorney for the defendant corporation, and opposed on the ground that all further proceedings were barred by the provisions of Code of Civil Procedure section 583. 2 The motion to file the supplemental complaint was granted, although no formal order was made until the following month.

On August 26, 1963, an application for an order extending time to plead to the supplemental complaint was filed. That document was typed on stationery of 'Lund & Brunner,' but was signed solely by Brunner. Attached thereto was a declaration by Brunner. The exhibit, filed in this proceeding by the real parties in interest in support of the inference that 'Lund & Brunner' were the attorneys of record, does not contain that declaration, and so we have no information as to what Brunner may have stated. However, a second application and declaration filed subsequently, a copy of which has been filed by petitioners, throws some light on this subject.

On September 4, 1963, the court made its formal order granting leave to file the supplemental complaint. That order was typed on stationery of Blair & Raydon, and so was obviously prepared by the attorneys for plaintiffs. It states that John R. Brunner appeared as counsel for defendant.

On September 18, 1963, a second application for an order extending time to answer was filed. This was typed on stationery of Lund & Brunner, and signed only by John R. Brunner. The declaration of Brunner attached thereto states that he is 'apparently attorney of record for defendant,' but, as the action was filed more than five years before, he does not have office files pertaining thereto, and that he is attempting to locate the same. In their petition herein, petitioners allege that because of the several personnel changes in the firm, the secretary who typed the documents at this point in the proceedings was unaware that it was improper to use stationery showing Lund's name, and that her error went unnoticed. However, they stress the facts that Lund had never been authorized by the defendant to appear for it, that no formal association of counsel had been filed naming him, and that Brunner, only, had signed the various appearances filed in court.

On October 9, 1963, the answer to the supplemental complaint was filed. That document was prepared on stationery showing only the name of John R. Brunner, as attorney for defendant, and was signed and verified by him, alone. It included a plea in bar based on section 583.

On November 4, 1963, Blair & Raydon, as attorneys for plaintiffs, served a notice that the action was set for pretrial on January 17, 1964, and for trial on February 13, 1964. That document was addressed, on its face, to the defendant by name, 'and to John R. Brunner, Attorney.'

Later in the same month one of plaintiffs' counsel telephoned to Brunner, asking for certain information relating to defendant corporation, and was informed that Brunner was not authorized to make voluntary disclosurers. According to the allegations of the petition, Brunner suggested that the information could be obtained by interrogatories and was answered with an obscenity and a threat that his deposition would be taken.

On December 20, 1963, plaintiffs' counsel served, by mail, a notice addressed to defendant corporation and to Brunner, as its attorney, that they would take Brunner's deposition at the office of plaintiffs' attorneys on December 30, 1963. No subpena to take such deposition was issued or served.

On December 28, 1963, petitioner Lund wrote to plaintiffs' counsel, stating that he (together with one Robert M. Lawlis) had been retained by Brunner to represent the latter in connection with the attempt to take his deposition. The letter stated that since Brunner was neither a party to the action nor an officer or managing agent of a party, and had not been served with a subpena, the writer had advised him not to appear for his deposition.

On January 3, 1964, plaintiffs' counsel obtained from the clerk of the respondent court two subpenas to take depositions on January 13, 1964, at their office in Los Angeles. One such subpena was addressed to petitioner Brunner, and was personally served on him in Los Angeles on January 7th. The other was addressed to William E. Tice, Jr., who is the third petitioner herein, and who was not a party to the action, but had once been an officer of defendant corporation, and had severed his connection with the same many years before issuance of the subpena. He was personally served with the subpena in Orange County on January 5th. In both subpenas an oversight, in conforming the printed forms to the actual facts, resulted in the statement that the depositions would be taken in the City of Los Angeles, County of Orange. No notice of taking either deposition was served or filed.

On January 9, 1964, petitioner Lund again wrote to plaintiffs' counsel, stating that both Tice and Brunner had consulted him in connection with the subpenas. He stated that he had advised each not to appear (and that neither would appear) for the reason that the subpenas, issued by a court of one county for deposition in another county, were invalid. 3 No mention was made of the ambiguity in the place of taking the depositions, nor of the failure to serve defendant with any notice thereof. Failure to mention the latter was, of course, consistent with Lund's position that he represented only the persons whose depositions were required, and not the defendant.

On January 11, 1964, plaintiffs' attorneys wrote to Lund, stating that notwithstanding advance notice that neither Brunner nor Tice would appear for deposition on January 13th, a reporter would be present at the time and place set.

On January 13, 1964, neither Brunner nor Tice appeared, but according to the allegations of the real parties in interest, plaintiffs' attorneys held themselves and a stenographic reporter in readiness to take the depositions.

On the same day plaintiffs' counsel mailed to petitioner Lund three copies of a document addressed: 'TO WILLIAME E. TICE, JR., JOHN R. BRUNNER, and their attorney, ROBERT H. LUND.' One copy was sent in an envelope addressed directly to Lund, one in an envelope addressed to Tice, care of Lund,...

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