Pacific Tel. & Tel. Co. v. Fink

• Decision Date: 07 May 1956
• Citation: 296 P.2d 843,141 Cal.App.2d 332
• Court: California Court of Appeals
• Parties: The PACIFIC TELEPHONE AND TELEGRAPH COMPANY, a corporation, Plaintiff and Respondent, v. C. L. FINK, also known as Charles L. Fink, individually and doing business under the fictitious firm names and styles of California Refrigerator Repair Shop, Inc., and Fink's Electrical Appliances; California Refrigerator Repair Shop, Inc., a California corporation, John Doe, Jane Doe, Richard Roe, Roe Corporation and Doe Partnership, Defendants. C. L. Fink, also known as Charles L. Fink, and California Refrigerator Repair Shop, Inc., a corporation, Appellants. Civ. 21462.

Page 843

296 P.2d 843

141 Cal.App.2d 332

The PACIFIC TELEPHONE AND TELEGRAPH COMPANY, a corporation, Plaintiff and Respondent, v.C. L. FINK, also known as Charles L. Fink, individually and doing business under the fictitious firm names and styles of California Refrigerator Repair Shop, Inc., and Fink's Electrical Appliances; California Refrigerator Repair Shop, Inc., a California corporation, John Doe, Jane Doe, Richard Roe, Roe Corporation and Doe Partnership, DefendantsC. L. Fink, also known as Charles L. Fink, and California Refrigerator Repair Shop, Inc., a corporation, Appellants.

Civ. 21462.

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

May 7, 1956.

Charles A. Thomasset, Los Angeles, for appellants.

Lawler, Felix & Hall, L. B. Conant, Robert Henigson, Jules J. Sherman, Los Angeles, for respondent.

WHITE, Presiding Justice.

This is an appeal from an order denying defendants' motion to vacate a prior judgment entered against them.

This action was instituted on March 10, 1954 when plaintiff filed its complaint which stated several causes of action, all now merged in a final judgment rendered by the Superior Court of Los Angeles County.On June 10, 1954, defendants filed their answer to the complaint as then amended, denying generally and specifically each of the several causes of action set forth in said amended complaint and, in addition, a counterclaim, recoupment and setoff was alleged, premised upon plaintiff's refusal to publish certain of defendants' requested advertising in the forthcoming issues of plaintiff's classified directories and damages were prayed in the sum of $100,000.

On June 18, 1954, plaintiff and defendants, through their attorneys of record, entered into and filed a stipulation for continuance and entry of judgment.By the terms of the said stipulation, all of the parties agreed that, should defendants fail to obtain 'the relief prayed for' in the administrative proceeding then pending before the Public Utilities Commission of the State of California, being Case No. 5545, then judgment on the said amended complaint should be entered against defendants in the amount of $6,586.25 plus interest and judgment on the said counterclaim should be entered in favor of plaintiff.

The decision of the Public Utilities Commission of the State of California, rendered January 19, 1955, dismissed defendants' complaint, thus denying them 'the relief prayed for' therein.Agreeably with said stipulation, judgment was entered in this action February 11, 1955.Notice of entry of judgment was served on defendantsFebruary 17, 1955.

On March 14, 1955, a writ of execution was issued by the court, and on March 18, 1955, the Los Angeles County Marshal, pursuant to said writ levied execution on the real property of defendantCharles L. Fink.A notice of sale of real estate under execution was given by said Marshal on March 21, 1955, and said notice was duly published on said date.

The aforesaid sale was noticed to take place on April 20, 1955, at the Inglewood office of the Los Angeles County Marshal.

On April 19, 1955defendants, through Attorney Charles A. Thomasset, filed a motion to vacate the said judgment on the ground that the same was taken through mistake, inadvertence, surprise or excusable neglect, and on the further ground that said judgment was taken without authority of defendants.

On April 20, 1955, defendants filed a substitution of attorneys, whereby Charles A. Thomasset was substituted as attorney of record in place and instead of Bertram H. Ross.

Thereafter, defendants served and filed an affidavit of defendantCharles L. Fink in which it was averred that the aforesaid judgment was taken and entered without his authority.

Plaintiff thereafter served and filed the affidavit of Bertram H. Ross(defendants' former attorney who signed the foregoing stipulation) wherein the attorney averred that said stipulation was entered into with knowledge, approval and consent of defendants.

At the time of the hearing, defendants moved to strike the affidavit of Bertram H. Ross on the grounds of privileged communication and moved to strike designated portions thereof on the ground that the same constituted conclusions of law.Each of said motions was denied.Defendants' motion to vacate said judgment was then argued, submitted and denied.

As a first ground for reversal of the order, appellants contend that the court erred in denying the motion to strike the affidavit of Attorney Bertram H. Ross on the ground that it violated the confidential relationship of attorney and client, and contained statements that were privileged and concerning which the former attorney for defendants could not testify, Bus. and Prof.Code, § 6068(e);Code Civ.Proc. § 1881, subd. 2.

Appellant urges that the challenged affidavit contained confidential and privileged advice such as: 'There is no question in my mind but that the Telephone Company can collect from you * * *'; and 'To my mind, this is a most advantageous settlement and I am recommending that you give it your consideration and advise me at once whether or not you want to accept it.'That it also contains a statement which, by implication, is based upon conferences between attorney and client, to-wit: 'That in connection with the execution of said stipulation by your affiant, as attorney for the defendants in the above entitled action, said matter was fully and fairly discussed with Mr. C. L. Fink, the president of the corporate defendant and one of the individual defendants and that said stipulation was entered into with the knowledge, approval and consent of the said C. L. Fink.'We are not in accord with appellants' contentions in this regard.The authority of the attorney, like that of any agent, may be established by the attorney and his testimony in that regard is admissible to prove the agency and, in the instant case, the nature and scope of his authority to sign the stipulation in question, Fleschler v. Strauss, 15 Cal.App.2d 735, 737, 60 P.2d 193.Here, the question addressed to the court was whether the stipulation was authorized.If it was, the judgment was properly entered.It was not error to allow defendants' former attorney to set forth in his affidavit the authority he had to enter into the stipulation.Defendants denied that any such authority was given.As to his authority and the purposes for which he was employed, the attorney was the principal witness.Within the meaning of the statute the employment was not a privileged communication, Security Loan & Trust Co. v. Estudillo, 134 Cal. 166, 170, 66 P. 257;Rose v. Crawford, 37 Cal.App. 664, 667-668, 174 P. 69.

In the case now engaging our attention the professional conduct of appellants' former attorney was attacked by them.It would be a sad commentary upon our boasted concept of fairness and the right to defend one's reputation and integrity, were it possible for the accuser to silence the accused by invoking the doctrine of privileged communication.The court committed no error in permitting the affidavit to be read.

It is next contended by appellants that the court erred in denying their motions to strike certain portions of the affidavit of attorney Ross.The challenged statements contained in the affidavit are as follows:

1.'That some time after issue was joined by the filing of an answer in the above entitled action, a stipulation was entered into wherein and whereby it was stipulated that in the event that the defendants did not make good their claim before the Public Utilities Commission of the State of California that plaintiff may have judgment as prayed for in its amended complaint.'

2.'That in connection with the execution of said stipulation by your affiant, as attorney for the defendants in the above entitled action, said matter was fully and fairly discussed with Mr. C. L. Fink, the president of the corporate defendant and one of the individual defendants and that said stipulation was entered into with the knowledge, approval and consent of the said C. L. Fink.'

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