Urethane Foam Experts, Inc. v. Latimer

California Court of Appeal Jan 19, 1995 No. E011760Published

Before: Dabney

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Holding. The court held that an order allowing counsel to withdraw was ineffective because it failed to comply with the mandatory notice and advisory requirements of California Rules of Court, rule 376, rendering subsequent trial proceedings and the resulting default judgment void.

Issues

Whether the trial court complied with California Rules of Court, rule 376, regarding the withdrawal of counsel.
Whether a judgment entered following a trial where the defendant lacked proper notice of counsel's withdrawal and the trial date is void.

Disposition. reversed

Quotations verified verbatim against the opinion

“the court erred in allowing counsel of record to withdraw without advising Urethane of the consequences of failure to obtain new counsel.”

“the notice was sent to a party that had not received adequate notice of the withdrawal of its attorney; the notice was therefore ineffective.”

“The judgment must be reversed.”

[765]

Opinion

DABNEY, Acting P. J.

This case concerns the validity of an ex parte trial and default judgment against a defendant following an order allowing withdrawal of counsel for the defendant that did not comply with the mandatory procedures established in the California Rules of Court.

Plaintiff First California Property and Casualty Insurance Company (First California) filed a complaint on July 12, 1989, alleging that its insured, cross-complainant John Latimer, had hired defendant Urethane Foam Experts, Inc. (Urethane) to repair a roof at a hotel and restaurant complex in Palm Springs. The contract called for payment to Urethane of $6,500. The complaint alleged that during the course of the repairs, Urethane left the roof open and exposed to the rain, and damages to the building and lost rental income resulted. First California paid for the repairs and then brought this suit in subrogation.

Urethane filed an answer and cross-complained against Latimer for sums due on the contract. Latimer filed a cross-complaint alleging damage exceeding that reimbursed by his insurer. Urethane filed an answer to the cross-complaint.

On May 18, 1992, Urethane’s counsel of record moved to withdraw as counsel of record on the ground of nonpayment of bills. The court signed an order on June 11, 1992, granting the motion. The order stated that counsel was authorized to withdraw and that counsel should give notice to Urethane. The order stated, “The motion of attorneys Leonard A. Bock and Scott N. Harlow for an order of this court permitting each of them to withdraw as attorneys for defendant/cross-defendant, having come on regularly for hearing, [1 It Is Hereby Ordered that Leonard A. Bock and Scott N. Harlow be and are authorized to withdraw as attorneys for defendant/cross-defendant Urethane Foam Experts, and that said attorneys shall give notice to said defendant at 732 Williams Road, Palm Springs, Ca. 92262, their telephone number being (619) 323-4196.” The record does not indicate that the order was served on anyone.

On June 12, 1992, First California’s counsel served a “notice of ruling and trial setting.” The notice stated that the motion to withdraw had been granted and the court had set trial for July 6, 1992. The notice was mailed directly to Urethane.

Urethane Foam Experts, Inc. v. Latimer

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