LITVINUK v. LITVINUK (1945)

Paul Litvinuk sued for a divorce. His wife, who was then living in Pennsylvania, came to California and filed an answer denying the charges made against her. When the case came on for trial, she was present but her counsel did not appear because he was then engaged in the trial of a criminal case before another judge of the same court. Following the denial of a continuance, the husband was awarded an interlocutory decree, and the wife has appealed from the judgment and also from several orders denying motions to set it aside and have a trial on the merits.

According to the affidavit of A. P. Coviello, on October 6, 1942, the defendant retained him as her counsel. At that time, he declared, the case was set for trial on March 15, 1943, and he had no knowledge of any motion to be made for its advancement. On October 9th the husband's attorney served a notice of motion for an earlier date of trial. There was then no substitution of counsel on file, and the notice was served upon the attorneys of record.

On October 16th the motion, which was unopposed, was granted and the case reset for November 23rd. According to an affidavit of the attorney for Mr. Litvinuk, it was on October 16th, after the hearing of his motion that Mr. Coviello informed him of the change of counsel; also, although the substitution was dated October 5th, it was not signed by counsel then representing Mrs. Litvinuk ‘until a week or ten days after October 16th.’ But there is no denial of Mr. Coviello's assertion concerning the date of his enployment, nor is it asserted that the change of attorneys was made for the purpose of delaying the trial.

On November 23d when the case was called for hearing, Mr. Coviello moved for a continuance upon the ground that he was actually engaged in the trial of the criminal case. The motion was denied by the acting presiding judge, but after the ruling was made, the case could not be heard; it was then continued to December 4th, with the order that if Mr. Coviello could not then be present, other counsel should be obtained.

On December 4th, Mr. Coviello was still engaged in the criminal case and made a motion, supported by affidavit, for a short continuance. The metion was denied; but again, because of other cases having priority, the Litvinuk case went over to December 7th, when it was transferred by the presiding judge to a trial department of the court. Mr. Coviello was still engaged in the criminal case and he so informed the court through a clerk who appeared for that purpose. A continuance was denied and, in the absence of Mrs. Litvinuk's attorney, the court heard the testimony of her husband and a witness produced by him for the purpose of corroboration.

At the conclusion of this testimony Judge Stutsman ordered Mrs. Litvinuk to ‘take the stand.’ Upon being told by her that, ‘I can't understand without my attorney here; I would like to have him here,’ the judge replied: ‘The record shows your attorney has had plenty of chance to be here. * * * You get up on the stand and I will be your attorney.’ Again Mrs. Litvinuk remonstrated, ‘But my attorney, I want him to be here, please.’ After the judge repeated that the attorney ‘has had plenty of chance to be here,’ he asked: ‘Do you want to tell me about your side of the case?’ Mrs. Litvinuk answered, ‘I can't tell it without my attorney.’ ‘All right,’ said Judge Stutsman, ‘Decree granted to the plaintiff.’ Custody of the child was awarded to Mrs. Litvinuk and her husband was ordered to pay $4.00 per week for the child's support but no provision was made for the maintenance of the wife.

Later, on the same day, Mr. Coviello gave notice of a motion, to be heard on December 16th, to vacate the minute entry ordering a decree of divorce in favor of the respondent and to reopen the case. Accompanying the notice of this motion was an affidavit of Mrs. Litvinuk declaring that her husband, shortly before coming to California had instituted an action for divorce in the State of Pennsylvania where they had formerly resided, and upon a trial Mr. Litvinuk was denied a divorce. She also stated that when the court proceeded with the hearing of the divorce proceeding, her counsel was still engaged in the trial of the criminal case which had occasioned the prior continuance and, for that reason, was not present to represent her. Ernest Best, the attorney for Mr. Litvinuk, in a counteraffidavit, did not deny that at the time the divorce proceeding was called for trial, opposing counsel was employed in the defense of a client charged with murder but, he said, as thirty-eight persons were being prosecuted and Mr. Coviello represented only one of them, by reason of ‘a working agreement with another counsel in the case’ he was able to leave the trial from time to time ‘and do other work that is necessary.’ Mr. Best also asserted ‘that to his knowledge no action was ever filed for divorce in the State of Pennsylvania wherein the divorce was denied.’

Mr. Coviello unaccountably failed to appear on December 16th and the court's minutes record that ‘Said motion is denied.’ Immediately thereafter findings and a decree of divorce were signed and filed. The judgment was entered December 18th. On January 4th, the appellant filed a motion for new trial upon substantially all of the statutory grounds. The motion was denied. Following the ruling, Mrs. Litvinuk gave notice of a motion, under section 473 of the Code of Civil Procedure, to vacate the decree upon the grounds of ‘mistake, inadvertence, and surprise.’ With the notice there was served a verified proposed cross-complaint for separate maintenance, charging Mr. Litvinuk with willful neglect. This pleading included allegations concerning the Pennsylvania proceeding asserted to have been tried and determined in the wife's favor. The motion was submitted for decision upon affidavits and, on April 9th, was denied.

On April 21st, Mrs. Litvinuk filed a notice of appeal (1) from the judgment; (2) from the order denying the appellant's motion to vacate and set aside the interlocutory decree and to reopen the matter for further proceedings; (3) from the order of the trial court denying her motion for a new trial; and (4) from the order denying the appellant's motion to vacate and set aside the interlocutory decree under section 473. But in the appellant's opening brief, no points or authorities are presented as a basis for the reversal of the judgment, or of any of the challenged orders except the one by which the court denied relief under section 473 of the Code of Civil Procedure. As to that ruling, the denial of a divorce in the Pennsylvania proceedings, says the appellant, constitutes a valid defense to the present action and, accordingly, she is entitled to ‘her day in court.’ Moreover, the argument continues, because of the interest of the state in safeguarding marital relations, public policy is against ‘easy’ divorces. For these reasons, it is concluded, ‘the trial court erred and abused its discretion in denying the motion under section 473.’

In support of the rulings in his favor, the respondent contends that his wife did not appeal from the judgment of divorce and the determinations of the trial court upon the motion to vacate and the motion for a new trial within the time provided by law; accordingly, he says, the only matter which may now be considered is the propriety of the order denying the motion made pursuant to section 473 of the Code of Civil Procedure. As justifying that order he says: ‘It is discretionary for the trial court to refuse to continue a case over objection, and if a continuance be granted it may be on whatever terms the court may deem proper.’

Although it is well settled that a ruling upon a motion made under section 473 will not be disturbed on appeal unless an abuse of discretion is clearly shown (Beard v. Beard, 16 Cal.2d 645, 107 P.2d 385), the discretion is a legal one; it is not to be exercised arbitrarily or capriciously (Waite v. Southern Pacific Co., 192 Cal. 467, 470, 221 P. 204; Miller v. Carr, 116 Cal. 378, 381, 48 P. 324, 58 Am.St.Rep. 180), but always with a purpose to dispose of cases upon their merits. Waybright v. Anderson, 200 Cal. 374, 377, 253 P. 148; Melde v. Reynolds, 129 Cal. 308, 311, 61 P. 932; Grady v. Donahoo, 108 Cal. 211, 215, 41 P. 41; Corgiat v. Realty Mortgage Corp., 86 Cal.App. 37, 40, 260 P. 573. The policy of the law favors a trial and looks with disfavor upon a party who, regardless of the issues which are presented for a determination, attempts to take advantage of the inadvertence or neglect of his adversary. Kalson v. Percival, 217 Cal. 568, 20 P.2d 330; Waybright v. Anderson, supra; Gorman v. California Transit Co., 199 Cal. 246, 248, 248 P. 923; Waite v. Southern Pacific Co., supra; Berri v. Rogero, 168 Cal. 736, 740, 145 P. 95. Accordingly, and owing to the remedial character of section 473, an appeallate court listens more readily to an appeal from an order denying relief than to one attacking a ruling granting relief (Brill v. Fox, 211 Cal. 739, 743, 744, 297 P. 25; Waybright v. Anderson, supra; Mitchell v. California, etc., S. S. Co., 156 Cal. 576, 579, 105 P. 590), and such a policy is especially desirable in a divorce proceeding, where the state is an interested party. Rehfuss v. Rehfuss, 169 Cal. 86, 145 P. 1020; Deyoe v. Superior Court, 140 Cal. 476, 482, 483, 74 P. 28, 98 Am.St.Rep. 73; Cottrell v. Cottrell, 83 Cal. 457, 23 P. 531.

It is conceded that at the time Mrs. Litvinuk's case was called for hearing, her attorney was engaged in another department of the court. But counsel for the husband insists that, because Mr. Coviello represented only one of a number of defendants charged with murder, he was free to leave the criminal case and try the divorce action. The conclusion is incorrect. Although an attorney is defending but one of several persons who are being jointly prosecuted, it does not follow that he may or should leave the courtroom while the case in which the rights of his client are being determined is on trial. Moreover, according to the affidavit of Mr. Coviello, the judge who was hearing the criminal prosecution refused to allow him to leave the courtroom while that case was on trial. Under these circumstances, the orderly administration of justice required the continuance of the divorce proceeding at least until the time Mrs. Litvinuk's attorney had concluded the trial of the case in which he was then engaged. Certainly a litigant should not be penalized because he employs an attorney having more than one client. Every lawyer in active practice has a number of cases pending, and although the courts should not countenance the deferment of trials so as to unduly prolong litigation, hearings should be arranged in such order as to allow counsel to represent the clients who have retained him.

So far as the record here shows, there was no justification whatever for the court's ruling that the divorce action must be tried in the absence of Mrs. Litvinuk's counsel and over her protest. Particularly in a divorce case there should be a disposition to fairly hear the parties and determine the controversy upon its merits, and the rendition of judgment against Mrs. Litvinuk under the circumstances shown cannot be justified upon any ground. For these reasons the court should have granted Mrs. Litvinuk's motion for relief under section 473 of the Code of Civil Procedure and the failure to do so constitutes an abuse of discretion.

The order of April 9th denying the motion to vacate and set aside the interlocutory decree of divorce is therefore reversed.

I dissent. The majority hold, in effect if not expressly, that an attorney is entitled as of course to the continuance of a trial and to repeated continuances, apparently without limit, merely upon a showing that he is elsewhere engaged in trial, and this even though he accepts the employment in the case in which the continuance is sought after its trial date has been set and while he is engaged in the trial which is the sole ground urged for the continuance.

Many trials extend over periods of months, some even years, and if this rule is to be generally followed it may well result in grievous delays in the administration of justice. A conscientious and intelligent judge handling the master calendar in a busy court may find his most diligent efforts toward efficiency in setting and disposal of cases seriously impaired by the fetters of this rule.

The record here admits of substantially conflicting inferences but all must be deemed to have been resolved in favor of the plaintiff by the trial judge. The majority, however, survey it and announce the conclusion, contrary to that of the trial court, that ‘there was no justification whatever for the court's ruling that the divorce action must be tried in the absence of Mrs. Litvinuk's counsel and over her protest.’ Actually the record here supports the conclusion that Mrs. Litvinuk deliberately engaged in a campaign for protracted delay.

The complaint was filed on May 21, 1942; the answer, on August 28, 1942. Trial was originally set for March 15, 1943, but on October 16, 1942, on motion of the plaintiff regularly noticed and made, the court ordered the trial date advanced to November 23, 1942. We must presume that this order was made on good cause shown and that the order so adjudicates. At the time of such order Mrs. Litvinuk was represented by attorneys Craig and Weller and Paul A. Amos, but on the same day Mr. A. P. Coviello, who was even then engaged in the trial of a criminal case, representing one of thirty-eight defendants charged with murder, a trial which he knew would be protracted, accepted the substitution of himself as attorney for Mrs. Litvinuk. Apparently he made no effort to avoid the necessity for a delay or to minimize the inconvenience to anyone, but on November 23, 1942, the day set for trial of this action, he moved for its continuance on the ground that he was engaged in the very trial in which he was engaged when he accepted employment in the case. This move apparently was contemplated by him when he accepted the employment.

The record shows the following from the affidavit of Mr. Best (attorney for plaintiff): ‘that affiant talked to said attorney (Coviello) in his office and over the telephone several times before the date of trial in November, 1942 and about two weeks before said date informed said attorney that he would oppose any motion of said counsel for a continuance on the date of trial for the reason among other things that he was not the original counsel, was engaged in a long trial and was so before he took the case and so forth; that at said time, said attorney stated that that was a privilege of any counsel. * * *’ (Italics added.)

However, on November 23d, on Mr. Coviello's motion, over the objection of plaintiff, the trial was postponed until December 4th, the presiding judge specifically ordering at that time that on December 4th ‘the counsel for the defendant A. P. Coviello, was to try the case or to have the defendant represented by some other counsel who was prepared to go ahead with the trial.’ Mr. Coviello heard this ruling made. In addition thereto, on the same day, November 23, 1942, he was served by mail with notice in writing that the trial had been continued to December 4, 1942, ‘with the understanding that if the attorney A. P. Coviello cannot be present in person to represent the defendant at said time that he have some other attorney to represent the defendant or that the defendant have some other counsel to represent her at said time.’

Notwithstanding this notice, on December 4th Mr. Coviello, without any showing of diligence or even the slightest effort to comply with the court's order, sought a further postponement and although his motion was at first denied, the trial was eventually continued to December 7th. On that date, the trial court having indulged defendant and her counsel two full weeks of delay, and ample opportunity to have procured other counsel, proceeded to trial.

The foregoing circumstances form the basis for the conclusion of the majority that ‘there was no justification whatever for the court's ruling that the divorce action must be tried in the absence of Mrs. Litvinuk's counsel and over her protest.’ I cannot subscribe to such conclusion. On the contrary, in my opinion, not only do such circumstances fail to show that as a matter of law the trial court abused its discretion in denying further delay, but they amply justify the order which was made. There was no error in denying the motion to vacate the interlocutory decree. The record discloses no surprise or mistake or inadvertence on the part of Mrs. Litvinuk or her counsel; they simply deliberately and persistently refused to avail themselves of the opportunity afforded them by the patience and indulgence of the court.

This is the first time to my knowledge, in nearly thirty-two years at the bar and on the bench, that it has been held that an attorney who is engaged in the trial of a case may accept employment and substitution of himself for other counsel in another case, which is already set for trial, and thereby become as a matter of course entitled to a postponement, and to successive postponements, of the trial of the second case without limitation of time, until he shall have completed the first trial. The ruling, it is to be further observed, places no limitation upon the number of cases set for trial in which the counsel may accept substitutions and thereby become entitled to postponements. With this rule in operation I daresay that an attorney who becomes engaged in protracted litigation may find his practice considerably augmented (if he so desires) by new clients who avail themselves of the opportunity afforded by such expedient to secure delays in their trials.

In my opinion the orders appealed from should be affirmed.

EDMONDS, Justice.

SHENK, CARTER, TRAYNOR, and SPENCE, JJ., concurred.