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Kohn v. Medill12/15/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
This is a suit brought by attorney Leonard C. Kohn ("plaintiff"), to recover attorney's fees from his former client, Jordan Steinberg ("Steinberg"). The defendants are Steinberg and Steinberg's new attorney, Cary W. Medill, and Cary W. Medill dba Law Offices of Cary W. Medill ("Medill" and together with Steinberg, "defendants"). Defendants are appealing from a post-default judgment order that denied their motion for relief from such judgment.
The record shows that an answer was already on file for Steinberg at the time his default was taken, and therefore such default and resulting default judgment against him are erroneous on their face and can be set aside without regard to the time limitations for relief that are imposed by the statute upon which defendants' motion for relief was based.
On the other hand, Medill is precluded from having his default set aside because his motion for relief is clearly untimely. Ordinarily, we would also hold that he is precluded from having the default judgment against him set aside because he unreasonably delayed in bringing his motion for relief. However, by such a holding we would run the risk that the judgment against him and the judgment against Steinberg would be in conflict. That is, upon remand of this case, Steinberg may ultimately be adjudged to owe plaintiff a different amount of money than that awarded to plaintiff in the default judgment against Medill, or owe plaintiff nothing at all. In such a case, it would cast the court in a bad light to have Steinberg owe the plaintiff one amount (or nothing at all), and Medill owe the plaintiff a different amount even though the defendants' individual liability to plaintiff appears to be based on the same set of circumstances. For that reason only, we will direct the trial court to vacate the default judgment against Medill, and thereafter enter a judgment with respect to Medill that is appropriate to, and consistent with, the judgment entered in plaintiff's case against Steinberg.
BACKGROUND OF THE CASE
1. The Nature of This Suit
This case was filed on August 21, 2000. For reasons apparently known only to the parties, the appellate record does not contain a copy of the complaint, and thus we do not know the exact allegations upon which this suit is based. However, we have gleaned from the papers filed by the parties in connection with defendants' motion for relief from default that plaintiff represented defendant Steinberg for awhile in a personal injury matter. Later, Steinberg ceased having plaintiff represent him and instead retained Medill to pursue his personal injury claim. Plaintiff then filed a notice of lien in the personal injury case. The lien states it is based on a written attorney's fees agreement. When Steinberg settled his personal injury suit and plaintiff did not receive any fees and costs from the settlement monies, plaintiff filed this suit against Steinberg and Medill.
2. The Defaults and Default Judgment
The record contains a copy of the superior court's civil case summary. It shows that a default was entered on December 7, 2000 against Medill. Four days later, on December 11, 2000, an answer was filed by Medill on behalf of Medill and Steinberg. The proof of service for the answer states the answer was served on plaintiff on November 29, 2000.
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