Vaughn v. Coccimiglio

DRAPER, P. J.

Defendants answered ready when the case was called for trial. No evidence was introduced. Nonetheless, the court entered findings of fact, conclusions of law, and judgment in favor of plaintiff. Defendants appeal. The judgment is based upon an erroneous application of the presumption that “evidence wilfully suppressed would be adverse if produced” (Code Civ. Proc., § 1963, subd. 5).

Plaintiff’s verified complaint sought judgment setting aside alleged fraudulent conveyances by her judgment debtor to his codefendants. Verified answer denied essential allegations of the complaint. When the case was called for trial, plaintiff’s counsel asked about the absence of defendants from the courtroom. Defense counsel said: “I have advised my clients that I feel that unless it’s absolutely necessary that they be here I don't feel it’s advantageous for them to appear in court here;” and “we’re ready to proceed.” He denied advising his clients to avoid service of process. The court said that it “might well grant a motion for a summary judgment,” and spoke also of default judgment and judgment on the pleadings. Defense counsel pointed to the verified answer, and asserted his right to require evidence and to cross-examine. Plaintiff moved for “judgment on the pleadings, and in support thereof I offer the plaintiff’s verified complaint in evidence; . . . Or, in the alternative, I would make an offer of proof” of efforts to serve subpoenas upon defendants. He detailed only efforts made on the preceding day and the early morning of the day of trial. No objection was made to either offer, but the court did not admit the complaint or receive any evidence. It granted “the motion for judgment” but entered

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judgment on the merits. It found that the facts “by their very nature are known principally ... by defendants,” disclaimed reliance upon any efforts by plaintiff to subpoena defendants, but found that by their failure to appear in person at trial they had “wilfully concealed evidence.” Presuming that the testimony of each defendant, if presented, “would have been adverse to that ’defendant,” the court made detailed findings that each allegation of the complaint was true, and entered judgment against all defendants for the amount due from the original debtor, with interest, costs, and attorneys ’ fees.