Wills v. Williams

[943]Opinion

HASTINGS, J. This is an appeal taken by Lynn Diane Held Wills, plaintiff and appellant (Wills), from the order of dismissal filed on March 22, 1974, of her action against Jesse Henderson Williams, defendant and respondent (Williams), following the granting of Williams’ motion to dismiss based on Code of Civil Procedure section 583, subdivision (b).

On February 7, 1968, Wills received severe personal injuries as a result of an automobile collision with Williams. In July 1968, Wills retained John R. Sheehan, attorney, to represent her. On February 5, 1969, Sheehan filed the verified complaint in the instant action, alleging negligence on the part of Williams, in that Williams failed to stop at an intersection “stop sign” and collided with Wills. The complaint was not served on Williams until January 29, 1971. There is no explanation for the delay in service. On November 19, 1971, defendant died without having filed an answer. At the time of his death his default had not been entered. The answer to the complaint was not filed until December 14, 1973.1

Sheehan advised Wills he could not settle the action until her doctor released her and she knew the full extent of her injuries. In the spring of 1972 Wills informed Sheehan that her medical treatment had terminated and that she desired him to proceed forthwith to try and settle her case and advise her of the results of his efforts. No communication of any kind was received from Sheehan, and in December of 1972, Wills made an appointment to see him in that month. The day before the appointment, Sheehan’s secretary telephoned Wills and cancelled the appointment because Sheehan had to leave town.

Finally, in February of 1973, Wills met Sheehan at his office in Burbank, California. Sheehan advised her that he had been trying unsuccessfully to settle the case, but it did not matter because the action had been filed and “it takes a long time to get a trial date from the court.” Wills then advised Sheehan that she was dissatisfied with his explanation and that she would like to consult another attorney about her case. According to Wills, Sheehan responded that she had signed a legal agreement with him and she was tied to it and she could not replace him with another attorney; also, he was very close to getting a settlement [944]