Buckert v. Briggs

Opinion

COUGHLIN, J. Defendant and Cross-complainant Judy E. Briggs appeals from an order setting aside a judgment in her favor obtained after trial at which plaintiffs Buckert, Johnson and Myers were not present nor represented by their attorney.

The facts in the case will be stated in accord with the rule on appeal requiring acceptance of that version of the evidence most favorable to the order to the extent supported by the record. (Thomas v. Hunt Mfg. Corp., 42 Cal.2d 734, 736 [269 P.2d 12].)

Defendant and cross-complainant claims an easement for pipeline and road purposes over property owned by plaintiffs. The complaint and cross-complaint sought, respectively, to quiet title of plaintiffs to the property and of the cross-complainant to the easement. The action was set for trial on November 12, 1968. Plaintiffs’ attorney, a man named Smith, received two notices of trial, the first of which was mailed to him on August 30, 1968 and the second was mailed on September 27, 1968. The case previously had been set for trial in June 1968 but was postponed because one of the attorneys for defendant and cross-complainant was engaged in another trial. Plaintiff Johnson was advised of the continuance by Smith and that he would be notified of the new trial date when the case was reset. Johnson requested the matter be tried as soon as possible. Smith did not advise plaintiffs of the new trial date, and they did not learn thereof from any other source. When the case came on for trial, plaintiffs or their attorney not appearing, the cross-complainant submitted evidence in support of her claim and the court indicated its intention to find in her favor. Two days later, i.e., on November 14, 1968, Johnson, in a conversation with cross-complainant, learned the trial had taken place; immediately contacted his attorney Smith; was informed by the latter he had known of the trial date but thought plaintiffs had lost interest in the case; and also was informed he, Smith, would contact the attorney for cross-complainant and see what could be done to set aside the judgment by stipulation. Smith promised to telephone Johnson and report his progress, but did not do so, [300]nor did he contact Johnson in any way after that date. Neither Johnson nor any of the other plaintiffs ever indicated to Smith they had lost interest in the case but, to the contrary, as noted, had requested the matter be tried as soon as possible. Johnson wrote the judge who presided over the trial, apparently respecting his plight, and received from the latter a letter which stated in part: “Section 473 of the Code of Civil Procedure provides a means for setting aside default judgments when they are taken though inadvertence, surprise or excusable neglect. This may be done within six months after the action about which complaint is made. No doubt the new attorney whom you propose to engage will make an appropriate motion under this section and within the time permitted.” Thereupon Johnson solicited the services of another attorney to represent him and the other plaintiffs who required the payment of a retainer fee before proceeding. Johnson was unable to pay the fee; made several unsuccessful attempts to sell some of his property to raise funds; but eventually was able to borrow sufficient money to make the payment in order to proceed within the six months. The new attorney obtained permission from plaintiffs to proceed as their substituted attorney; prepared the required substitution forms; was unable to contact Smith by telephone; and delivered to the Johnsons the substitution forms executed by them, whereupon they located Smith on May 12, 1969 and obtained his signature. At this time Smith informed the Johnsons he intended to leave the area and establish his residence in Bakersfield. Thereafter the new attorney attempted on several occasions, by letter and by telephone communication, to contact Smith at Bakersfield to obtain from him information and a declaration which might be used in support of the motion to vacate the judgment; received no reply; and. as a consequence, no such declaration was obtained.