Walker v. Porter

• Court: California Court of Appeals
• Citation: 44 Cal.App.3d 174,118 Cal.Rptr. 468
• Decision Date: 30 December 1974
• Parties: Cora WALKER, Plaintiff and Appellant, v. Herbert M. PORTER, Defendant and Respondent. Civ. 43606.

Page 468

118 Cal.Rptr. 468 44 Cal.App.3d 174 Cora WALKER, Plaintiff and Appellant,
v.
Herbert M. PORTER, Defendant and Respondent. Civ. 43606. Court of Appeal, Second District, Division 2, California. Dec. 30, 1974.

[44 Cal.App.3d 175] Schermer & Rand by William J. Kropach, Sherman Oaks, for plaintiff and appellant.

No appearance for defendant and respondent.

ROTH, Presiding Justice.

Appellant, Cora Walker, appeals from a judgment of nonsuit in a malpractice action against respondent, Herbert M. Porter.

In the latter part of 1968 appellant lived in a rented house at 336 East 131st Street in the City of Los Angeles. The house was located on a small hill which sloped to the street. During this period considerable work was being done to install sidewalks on the street. Appellant's front steps leading to the street were removed as part of

Page 469

the construction work, and as a consequence appellant used the driveway as a means of ingress and egress from her house. On the evening of December 3, 1968, appellant, [44 Cal.App.3d 176] en route to her neighbor's house to borrow a flashlight, walked down the driveway and fell into an unmarked trench of which she had no notice. As a consequence she injured her left knee, left leg and hit her head on a piece of concrete. After approximately one-half hour calling for help, a little boy came to her assistance and helped her out of the trench. She crawled into her living room; called her sister who in turn called an ambulance. Since the accident, she has not been able to work because of periodic swelling of her leg and muscle spasms.

Following the accident appellant contacted representatives of the City of Los Angeles and was told that the accident occurred in the County's area of responsibility. Thereafter she had a conversation with a representative from the County who told her that the accident was the contractor's fault and advised her to contact the contractor. She also talked to a representative of her landlord's insurance company who told her that the accident was the contractor's fault. The contractor advised her that the accident was the landlord's fault.

On January 22, 1969, appellant advised respondent of the facts as above outlined who told her she had a very good case and that he would sue the contractor, the landlord and the County. Respondent requested her to execute and she did execute a written retainer contract. Concurrently, respondent arranged for appellant to see, and she did call upon, two physicians in Beverly Hills about her injuries, and at the same time he also instructed her not to discuss the accident with anyone but to refer all inquiries to him. She followed his instructions.

Appellant did not hear from respondent. After a year had elapsed she called his office. Respondent told her he would pull her file and let her know the next day how her case was going. She called the next day and was informed by respondent's secretary 'my case supposedly had been gone into over a year ago, and the girl he had working on the case--he had fired her, and therefore, (she) * * * had no case no more.' She asked the secretary to have respondent call her. Respondent did not call or return any of her calls. When appellant called she was told to 'quit calling down there.' This action followed.

It appears from the record that scheduled depositions of respondent in respect of his handling of appellant's case were twice cancelled by him at the last minute, and when on the third occasion he failed to appear, the court in a proceeding thereafter found his failure to appear to be wilful and...