Opinion
2-11-1958
WYOMING PACIFIC OIL COMPANY, a corporation, Plaintiff and Appellant, v. Edward J. PRESTON et al., Defendants, George B. Bush, Respondent. * Civ. 22070.
WYOMING PACIFIC OIL COMPANY, a corporation, Plaintiff and Appellant,
v.
Edward J. PRESTON et al., Defendants,
George B. Bush, Respondent.
Hency C. Clausen, Richard G. Burns, San Francisco, for appellant.*
No appearance for respondent.
FOX, Presiding Justice.
Plaintiff commenced this action for cancellation of instruments, damages and an accounting against several defendants on December 15, 1952. Summons was issued but no effort was made to serve any of the defendants for more than two years. The first defendant was served in February, 1955. Early in December, 1955, plaintiff began to make feverish attempts to serve defendant George Bush. The affidavits of several process serves indicate that constant efforts were made on every day commencing December 12, 1955, up to December 22, 1955, when Bush was finally personally served. Although several visits were made to his home and office between December 12 and December 15, Bush could not be located. On December 15, 1955, plaintiff obtained an order authorizing service by publication on the ground that defendant Bush was concealing himself to avoid service. Bush filed notice of motion to quash service on December 28, 1955. The hearing was set for January 3, 1956, but plaintiff's counsel obtained a continuance to January 12 because of the holidays. The day before the hearing on his motion, Bush filed an 'amended and supplemental notice of special appearance and motion to quash summons and service thereof together with motion to dismiss action' as to him for failure to serve and return the summons within the three-year limit provided in Code of Civil Procedure, section 581a. Bush also filed an affidavit which asserted that he was readily accessible at his home and office on the days immediately prior to December 15, 1955, and was not concealing himself in any way. The court granted his motion to dismiss at the January 12 hearing, and entered an order of dismissal. Thereafter plaintiff made a motion to vacate the dismissal pursuant to Code of Civil Procedure, section 473 on the ground that the judgment was taken against plaintiff through the mistake, inadvertence, surprise or excusable neglect of plaintiff or its counsel. Plaintiff's affidavits in regard to this motion showed that plaintiff had been advised to delay service on parties other than the principal defendant, a nonresident, until he could be served. He was served in California in February, 1955. Plaintiff thereafter hired new attorneys in May, 1955. The chief attorney suffered a heart attack in July, 1955. Plaintiff went to other attorneys in August, 1955, and, while they were deciding whether or not to take the case, the case remained in the hands of a junior in the firm of the attorney who had suffered the heart attack, who was not familiar with the facts or record in the case. On December 1, 1955, plaintiff was first informed that service had to be made within three years. Immediate service on Bush was then sought. But service by December 15 was not achieved because of Bush's alleged concealment. It was also asserted that an adequate defense on the ground of Bush's absence from the state could have been established at the first hearing if plaintiff and its counsel had received adequate notice of the hearing. Plaintiff alleged that Bush's original motion to quash service had confined itself to the question of plaintiff's due diligence in obtaining service upon Bush, and that plaintiff's attorney therefore never researched or prepared proof as to Bush's absence from the state. At the hearing on the motion to vacate Bush took the stand and admitted that he probably had been out of the state a total of more than a month between December 15, 1952, and December 1, 1955. The court denied the motion to vacate. Plaintiff now appeals from the order dismissing the action as to Bush and from the order denying the motion to vacate the dismissal.
In regard to the order granting defendant Bush's motion to dismiss, plaintiff contends that the trial court erred inasmuch as there was already a binding adjudication that Bush was concealing himself to avoid service of summons. This contention is without merit. Plaintiff is asking this court to rule that an ex parte order for publication of summons is res judicata on the issue of whether a defendant is concealing himself within the state to avoid service of summons. 'It is a cardinal principle of our jurisprudence that one shall not be bound or concluded by a judgment * * * unless he has had his day in court, by which is meant until he has been duly cited to appear and has been afforded an opportunity to be heard, and upon such hearing, to offer evidence in support of his cause.' California Filter Co. v. Superior Court, 97 Cal.App. 99, 105, 274 P. 1012, 1014; see, also, County of Los Angeles v. Winans, 13 Cal.App. 234, 253, 109 P. 640. By analogy to this principle it seems clear that neither defendant Bush nor the court was bound by the ex parte order insofar as it purported to be an adjudication of the question of Bush's concealment to avoid service. See Munro v. Post, 2 Cir., 102 F.2d 686, 688; Annotation, 132 A.L.R. 14, 44-45. Obviously, Bush had not yet appeared in the action when the order was made and could not controvert the statements in the affidavits presented by plaintiff. To say that he could not later oppose these affidavits by his own in support of his motion to dismiss would border on the ridiculous. Plaintiff points out that Bush could have moved to set aside the order for publication of summons, but did not. This would have been a useless act since he was personally served on December 22, 1955. And to require that the court set aside the order for publication of summons before Bush could contest his alleged concealment within the state would merely waste the court's time since the same factual question would face the court on a motion to set aside that order as on the motion to dismiss. When it granted Bush's motion to dismiss, the court in effect ruled that he did not in fact conceal himself within the state to avoid service of summons. Therefore, there was no error in granting the motion for dismissal merely because of the recital in the order for publication of summons that defendant Bush was concealing himself within the state to avoid service. Plaintiff cites City of Los Angeles v. Oliver, 102 Cal.App. 299, 325, 283 P. 298, for the proposition that an order made in the course of an action is binding on the litigants and the court so long as it has not been set aside. That case is inapplicable here since all the parties were before the court when the order was made.
Plaintiff next contends that the trial court erred in granting the dismissal because less than a day's notice of the motion to dismiss was given and plaintiff's attorney was inadequately prepared to argue the concealment exception to section 581a and had overlooked the out-of-state exception. In light of the record in this case, we are unable to hold that the lower court was obligated to place credence in these contentions. Although Bush's notice of December 28, 1955 referred only to a motion to quash summons, it was clear from the memorandum of points and authorities and from the supporting affidavit that Bush was relying on the provisions of section 581a. That section was specifically cited and Bush's affidavit closes with the statement that the summons 'could easily have been served upon this defendant and affiant within the three year period which the Legislature of the State of California says must be done and in the absence of which the Court must dismiss the suit, as to any defendant not so served within said three year period.' Further proof of the preparedness of plaintiff's attorney lies in the fact that the memorandum in opposition to the motion to quash summons and service thereof, filed on the same day as defendant Bush's notice of motion to dismiss (January 11, 1956), discloses that counsel was relying specifically upon the concealment and out-of-state exceptions in section 581a. In fact the part of the statute containing those two exceptions was quoted in the memorandum. Moreover, the memorandum states that plaintiff's opposition to Bush's motion was based upon the affidavits filed December 15, 1955, in support of the order for publication of summons, as well as upon several other affidavits filed on January 3, 1956. All of these affidavits were directed to the issue of Bush's concealment to avoid service of summons. It is thus clear that plaintiff's counsel was amply prepared to argue the concealment exception at the hearing on January 12, 1956. And if counsel had wished to argue the out-of-state exception, he could have filed affidavits bearing upon that point. Any further doubt is dispelled by the fact that counsel did not even seek a continuance at the January 12 hearing in order to have more time to prepare as to the out-of-state exception. Thus, the trial court did not err by ordering a dismissal without giving plaintiff additional time (none having been requested) after notice of the motion to dismiss was received.
Plaintiff's final contention with respect to the order of dismissal is that the court erred in granting the dismissal 'when the record clearly shows that a defendant has been concealing himself to avoid service of summons.' The argument on this point is directed merely to the weight of the evidence. The affidavits filed by defendant Bush were in direct conflict with those filed by plaintiff. 'The rule on appeal is that those affidavits favoring the contention of the prevailing party establish * * * the fact stated therein * * * and where there is substantial conflict in the fact stated, a determination of the controverted facts by the trial court will not be disturbed.' Obergfell v. Obergfell, 134 Cal.App.2d 541, 546, 286 P.2d 462, 466; see, also, Griffith Co. v. San Diego College for Women, 45 Cal.2d 501, 508, 289 P.2d 476, 47 A.L.R.2d 1349; Hayutin v. Rudnick, 115 Cal.App.2d 138, 140, 251 P.2d 707; Wilson v. Leo, 19 Cal.App. 793, 797, 127 P. 1043. The mere fact that plaintiff produced more affidavits to support its position than defendant Bush did to support his does not make the court's finding in favor of Bush an abuse of discretion. Since no error has been shown, the trial court's order of dismissal must be affirmed.
Turning now to the order denying plaintiff's motion to vacate the order of dismissal, it contends that the court erred in light of the circumstances. This motion was made pursuant to the provisions of Code of Civil Procedure, section 473, and plaintiff argues that the facts clearly show that the failure to serve defendant Bush within three years and the dismissal resulting therefrom were caused by mistake, inadvertence, surprise and excusable neglect. 'The law is well settled that an application for relief under section 473 is addressed to the sound discretion of the trial court, and that an appellate court will not interfere with the exercise of such discretion unless there is a clear showing of an abuse thereof.' Keller v. Keller, 91 Cal.App.2d 39, 41, 204 P.2d 361, 362; see, also, Baratti v. Baratti, 109 Cal.App.2d 917, 921, 242 P.2d 22; In re Estate of Rabinowitz, 67 Cal.App.2d 840, 841, 155 P.2d 915; Jackson v. DeBenedetti, 39 Cal.App.2d 574, 577, 103 P.2d 990; In re Estate of McCarthy, 23 Cal.App.2d 398, 399-400, 73 P.2d 914. And this is true whether the motion to vacate is granted or denied. (See Baratti v. Baratti, supra, 109 Cal.App.2d at page 921, 242 P.2d at page 24; In re Estate of McCarthy, supra, 23 Cal.App.2d at page 399, 73 P.2d at page 915.) We must therefore consider the facts presented to the trial court to determine whether or not an abuse of discretion took place. Plaintiff alludes first to the circumstances which led to the failure to serve defendant Bush within the three year period, such as its hiring of new attorneys and the heart attack of the chief attorney. However, it is unnecessary for us to consider these facts in connection with the motion under section 473. The reason is that summons was not served within the three year period and dismissal under section 581a is mandatory unless the defendant is absent from the state or has concealed himself therein. Gonsalves v. Bank of America, 16 Cal.2d 169, 172, 105 P.2d 118; Pease v. City of San Diego, 93 Cal.App.2d 706, 709, 209 P.2d 843. This precludes relief under section 473 unless an exception to section 581a did in fact exist but was not presented to the court at the hearing to dismiss because of some mistake, inadvertence, surprise or excusable neglect. Therefore, only plaintiff's mistake, inadvertence, surprise or excusable neglect pertaining to the hearing and granting of the motion to dismiss would be a ground for relief under section 473.
Plaintiff next alludes to the facts surrounding Bush's alleged concealment to avoid service of summons between December 12, 1955, and December 22, 1955. Again we note that the affidavits which were presented for and against the motion to set aside the judgment were conflicting on the question of concealment. The situation is exactly the same as on the motion to dismiss, and we are again powerless to reject the conclusion of the trial court. 'Since the evidence is conflicting upon which the motion to set aside the * * * judgment was denied, this court may not interfere with the discretion of the trial court with respect thereto.' Estate of McCarthy, supra, 23 Cal.App.2d at page 401, 73 P.2d at page 917; Zuver v. General Development Co., 136 Cal.App. 411, 413, 28 P.2d 939.
Plaintiff contends principally that the record shows surprise and excusable neglect on the part of its counsel because of the short notice he had regarding Bush's intention to move to dismiss the action. Plaintiff argues that at the time of the January 12 hearing its counsel 'was ignorant of the existence or scope of the absence-from-the-state exception' of section 581a as it pertained to defendant Bush. Yet, as we previously pointed out, counsel quoted this very exception in the memorandum which he had filed on the previous day. It does not appear that any attempt was made to continue the hearing to a later date so that evidence concerning the out-of-state exception could be produced. Also, it is interesting to note that counsel attempted to have defendant Bush take the witness stand so that he could be cross-examined. The court denied this request since the hearing was in the law and motion department where testimony generally is not permitted. Yet it has not been shown that counsel made any objection, sought a continuance, or attempted to have the hearing transferred to a department where oral testimony would be taken. Nor does it appear that counsel informed the court what he expected to show by defendant's testimony. The fact remains that plaintiff's counsel was aware of the absence-from-the-state exception and should have either presented affidavits on the point or requested that the hearing be in another department so that he could have cross-examined Bush. The 'surprise' referred to in section 473 is defined as some condition or situation in which a party to a cause is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against. Baratti v. Baratti, supra, 109 Cal.App.2d at page 921, 242 P.2d at page 24; Miller v. Lee, 52 Cal.App.2d 10, 16, 125 P.2d 627. It is clear that the facts in the case at bar do not disclose such 'surprise' as would require the trial court to grant relief under section 473. Nor can it be said that the facts disclose sufficient 'excusable neglect.' Plaintiff's counsel would have been apprised of Bush's reliance upon section 581a merely by reading the latter's original notice of motion, authorities and supporting affidavit. Counsel had sufficient opportunity to investigate the facts and prepare the evidence on either exception to section 581a, particularly since he had secured a continuance of the hearing from January 3 to January 12. Plaintiff is not entitled to relief merely because its counsel relied mainly upon the concealment exception rather than the out-of-state exception. It is the general rule that a client is chargeable with the negligence of his attorney. Vartanian v. Croll, 117 Cal.App.2d 639, 644, 256 P.2d 1022. And the mere fact that an attorney does not make a skillful presentation of a client's case will not warrant relief under section 473. Vartanian v. Croll, supra, 117 Cal.App.2d at page 644, 256 P.2d at page 1025.
To be entitled to relief from mistake under section 473, a party must prove some mistake, either of fact or of law, of himself or his counsel. Hewins v. Walbeck, 60 Cal.App.2d 603, 609-610, 141 P.2d 241; Bruskey v. Bruskey, 4 Cal.App.2d 472, 479, 41 P.2d 203. Plaintiff has failed to do this. The facts before us indicate that plaintiff's counsel was aware of both exceptions regarding a dismissal under Code of Civil Procedure, section 581a. And no mistake of fact on the part of plaintiff or its counsel has been shown. Plaintiff also suggests that the failure of its counsel to establish a defense to dismissal at the January 12 hearing was the result of inadvertence. However, as we have already pointed out, when counsel's request to examine defendant Bush was denied, it does not appear that counsel made any disclosure to the court of what he expected to prove, or any attempt to have the matter transferred to a department where oral testimony would be received. 'The inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief.' Elms v. Elms, 72 Cal.App.2d 508, 513, 164 P.2d 936, 939; see, also, Shearman v. Jorgenson, 106 Cal. 483, 485, 39 P. 863; Couser v. Couser, 125 Cal.App.2d 475, 476, 270 P.2d 496. Plaintiff has failed to establish any excuse for the inadvertence (if any existed) of its counsel. In fact, counsel's conduct would seem to constitute neglect rather than inadvertence. In any event, neither inadvertence nor neglect will warrant judicial relief unless it may reasonably be classified as excusable upon a sufficient showing. Couser v. Couser, supra, 125 Cal.App.2d at page 477, 270 P.2d at page 497; Elms v. Elms, supra, 72 Cal.App.2d at page 513, 164 P.2d at page 939; Hughes v. Wright, 64 Cal.App.2d 897, 901, 149 P.2d 392.
From the foregoing it is apparent that the circumstances surrounding the actions of plaintiff's counsel at the first hearing are not such as would require this court to rule that the trial court abused its discretion in denying relief under section 473.
Plaintiff's final argument is apparently that the trial court abused its discretion in denying the motion to vacate because it appeared that a conclusive defense to the dismissal existed. At the hearing on the motion to vacate, Bush was called upon to testify and admitted that he probably had been out of the state for a total of at least one month between December 15, 1952, and December 1, 1955. Plaintiff asserts that this testimony establishes conclusively the existence of the absence-from-the-state defense to dismissal under section 581a. Assuming this is true, plaintiff is still not entitled to relief under section 473. In effect the situation was that plaintiff's counsel had two possible defenses to Bush's motion but presented only one of them. Having been unsuccessful with the one defense, plaintiff now seeks to assert the second. This it may not do since it has not made a sufficient showing of a legal excuse for not presenting this defense at the January 12 hearing. The trial court has ruled against plaintiff and we are convinced that such ruling did not constitute an abuse of discretion.
The orders are affirmed.
ASHBURN, J., and RICHARDS, J. pro tem., concur. --------------- * Opinion vacated 329 P.2d 489. * Neither of plaintiff's present counsel was the attorney who represented it at the January 12, 1955 hearing, which is discussed in this opinion. 1 It should be noted in this connection that the court did not have before it any evidence that Bush had been absent from the state. 2 On page six of his memorandum, plaintiff's counsel stated as follows: 'Section 581a, C.C.P., specifically provides that: ..... no dismissal shall be had under this section as to any defendant because of the failure to serve summons on him during his absence from the State, or while he has secreted himself within the State to prevent the service of summons on him." He goes on to state on page seven: 'It is obvious that the legislature recognized that, in the closing days of the three year period, many a defendant would be tempted to secrete or absent himself for a few days, until the three years had fully elapsed, and then to come in and ask for a dismissal. It is self-evident that this high probability was the tactic against which the legislature sought to protect plaintiffs when the exceptions were included in the rule.' Counsel then quoted from a case the statement that 'plaintiffs might successfully resist a motion to dismiss made for want of service of summons by showing that defendant was absent from the state or concealed herself to avoid service.' 3 It is a matter of common knowledge among members of the legal profession in Los Angeles that oral testimony generally is not permitted in the law and motion department of the Los Angeles Superior Court.