Simon v. Tomasini

• Decision Date: 24 April 1950
• Citation: 97 Cal.App.2d 115,217 P.2d 488
• Court: California Court of Appeals Court of Appeals
• Parties: SIMON v. TOMASINI. Civ. 14213.

Page 488

217 P.2d 488

97 Cal.App.2d 115

SIMON v. TOMASINI.

Civ. 14213.

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

April 24, 1950.

Hearing Denied June 22, 1950.

Joseph A. Brown, San Francisco, for appellant.

Howard C. Ellis, Bernard B. Glickfeld, San Francisco, for respondent.

BRAY, Justice.

In an action for attorneys' fees and expenses, the superior court, after judgment in favor of plaintiff in the sum of $100,000 together with interest thereon for over 7 years, made an order granting a motion for new trial. Plaintiff appealed from that order.

Question Presented.

Where a memorandum of motion to set has been filed and notice of trial given, and thereafter the case is kept upon the ready calendar for a period of almost 2 years, is defendant entitled to notice of the date finally assigned for trial?

Facts.

There is very little dispute as to the facts. On September 15, 1941, plaintiff filed suit for attorneys' fees and expenses claimed to be due plaintiff's assignors. There were two causes of action: (1) for the reasonable value of the services, alleged to be $100,000, and for expenses incurred in the sum of $1,250; (2) for the agreed value of said services in said sum of $100,000, and for expenses in said sum of $1,250. Defendant filed a demurrer which was overruled. On April 30, 1942, defendant filed his answer alleging, in effect, that the agreement to pay attorneys' fees was contingent upon certain results being attained, and that they were not attained, and denying that any sums were due or owing. On August 31, 1943, the parties stipulated in writing 'that all objections which can or might be made by the defendant in the above entitled action or any motion or motions to dismiss for lack of prosecution are hereby waived, and it is hereby expressly stipulated that no advantage will hereafter be taken because the above entitled action has not been brought to trial for the reason that, by stipulation of the parties, due to the absence from San Francisco of the defendant and of his Attorney, the above entitled action has been deferred for trial. It is further stipulated that any and all objections that can or may hereafter be made that this action has not been brought to trial within five years is expressly waived.'

The register of actions shows that on February 3, 1946, a memorandum to set and affidavit of mailing was filed. On April 9, 1946, notice for trial April 26 was filed. On October 21 the deposition of Curtis Hillyer, one of plaintiff's assignors, was filed. Nothing occurred of record until April 16, 1948, when the cause was assigned to a department to be tried the same day. No one appeared to represent defendant. The deposition of Hillyer was offered in evidence and the testimony of Attorney Gottesfeld taken. The cause was thereupon submitted. On November 10, 1948, judgment was signed and entered, reciting that due notice of the time and place of trial had been given, that defendant had failed to appear, and judgment was given to plaitiff for $100,000 plus interest at 7 per cent from September 15, 1941.

Thirteen days after the submission of the case, namely, on April 29, 1948, defendant filed a notice of motion to reopen the case for hearing and trial upon the ground that the matter had been heard and taken against defendant without notice and through his mistake and inadvertence. The hearing was had May 7 upon affidavits. Defendant presented three affidavits, one by himself, one by Attorney Olds and one by Attorney Ellis. Defendant's own affidavit stated that his attorney of record at the time of filing the answer was Attorney Olds; that a memorandum to set the cause for trial was filed in July, 1943; that at that time plaintiff's attorney Joseph A. Brown, defendant and his attorney Olds entered into a certain stipulation (the one hereinbefore set forth); that at said time the matter was dropped from the calendar because Attorney Olds had planned to absent himself from the state 'for some time'; that on February 13, 1946, plaintiff filed another memorandum to set the cause for trial; that on April 9 a notice was addressed to Attorney Olds at 25 California Street, San Francisco, and that on April 22, 1946, notice of setting for trial was sent to defendant; that defendant believes and therefore alleges that the cause 'was dropped from calendar and placed on the Superior Court ready calendar'; that Olds was absent from the state, being located in Princeton, Ky.; that defendant is informed and believes, and therefore alleges, that on or about April 16, 1948, plaintiff proceeded without notice to defendant or to Attorney Olds to present evidence to department 8 of the superior court; that defendant has a meritorious defense and that 'plaintiff has improperly, and in deprivation of defendant's right to be heard on the merits of the case, attempted to 'railroad" the matter to trial; that defendant has always maintained a business address at 209 Post Street, San Francisco, and a telephone number available in the San Francisco phone directory; that plaintiff well knew that defendant's attorney Olds was without the state of California; that defendant desires the case reopened to be heard on its merits and desires to contact Attorney Olds and have him present at the trial.

The affidavit of Attorney Olds stated that he is the attorney of record for defendant; that he left San Francisco for Kentucky in 1943 for reasons of bad health. He referred to the stipulation hereinbefore set forth. He then stated that it was understood by him, defendant, and plaintiff's attorney Brown that no action to bring the case to trial would be taken until 'affiant had been properly notified and * * * was in a position to return from Kentucky'; that affiant, since he left California, has resided in Princeton, Ky., and that at no time had he received any notice of trial or any communication of any kind from the plaintiff, her assignors or their attorneys, since 1943.

The affidavit of Attorney Ellis stated that he was representing defendant for the purpose of reopening the trial of the case; that he is informed by Attorney Olds that he will be in California in late June ready and able to appear in the trial of the case; that 'late in the afternoon' of April 15, 1948, affiant called Attorney Gottesfeld's phone number and talked to Attorney Brown who answered the phone, and was told for the first time that this case would be tried the following morning, April 16; that affiant told Brown that was not sufficient notice and he could not appear 'in any event at that time'; that Brown then stated that Ellis was not the attorney of record and therefore 'no notice was necessary in his case,' in which statement affiant agreed. Affiant then asked Brown if the parties had been served in due course and to the best of his recollection was informed that they were not required to ascertain Olds' whereabouts or to serve him out of the state, but that they had served defendant in due time. Affiant then asked Brown to continue the matter and was informed that it would not be continued and thereupon affiant stated that under the circumstances there was apparently nothing he could do about it at this time; that in the morning mail of April 16 affiant received a copy of notice to produce certain records and documents, and not having any of them affiant did not appear in answer thereto

In opposition to these affidavits plaintiff presented two affidavits of Attorney Brown and an affidavit of Attorney Gottesfeld. The affidavits of Attorney Brown stated that he was plaintiff's attorney in this action; that he never discussed with defendant or with Attorney Olds any matters 'in regards to the handling of this case' and that there was no understanding at any time between him and them that 'neither plaintiff or defendant would take advantage of the other' (defendant in his affidavit had stated that there was such understanding); that no advantage was taken of defendant or his attorney; that on April 22, 1946, a notice was sent to both Attorney Olds and defendant. A copy of this notice is attached to the affidavit. It is directed to defendant and states that the case has been set for trial for April 26, 1946, and notifies defendant to procure another attorney to represent defendant, inasmuch as his former attorney 'has become inactive under the State Bar and has left the State of California * * *.' The notice further states that previous notices have been sent to his former attorney in Kentucky and a copy of this notice is being served on the county clerk. It advises defendant 'to protect your interests at one.' The affidavit then sets forth a letter written by Attorney Howard C. Ellis. This letter is dated May 21, 1946, addressed to Attorney Brown. It reads: 'Mr. T. A. Tomasini has come in to me with a voluminous file in connection with some bridge project, and more particularly in relation to a notice of time and place of trial. As you know, the attorney of record in this matter is Frederick Olds, and that he is in Kentucky at the present time. I find that the matter could be called up for trial at any moment, and my calendar and position do not make it possible for me to even familiarize myself...