Opinion
Rehearing Denied Aug. 5, 1968.
For Opinion on Hearing, see 74 Cal.Rptr. 544, 449 P.2d 760.
Howard M. Redlich and Harry M. Fain, Beverly Hills, for appellant.
Rogers & Harris, Beverly Hills, and Gang, Tyre & Brown, Los Angeles, for respondent.
ROTH, Presiding Justice.
Appellant wife sought a divorce from the husband of her third marriage with whom she had been living for six and one-half years. The decree, however, was granted to respondent husband on his cross-complaint. Appellant was awarded custody of the son born to her and the husband of her second marriage in 1952 who had been validly adopted by respondent, and in addition the judgment provided child support, attorneys' fees and an equal portion of the property found to be community.
The primary question presented is the validity of a stipulation by appellant's counsel made in chambers to try the case on the complete record of a previous mistrial.
Commencing March 25, 1966, and continuing intermittently for 11 court days until June 1, 1966, a complete trial was had and the cause had been submitted for decision. The trial judge, however, by reason of an accident, became incapacitated, and on July 8 vacated his order of submission, declared a mistrial and transferred the cause to Department 1--the calendar department. The parties, apparently before August 5, 1966, when the case was called in Department 1, entered into an oral stipulation that the case could be decided by the presiding judge on the complete record made during the mistrial. The presiding judge asked for a written stipulation to that effect and it developed that appellant would not sign such a stipulation because, according to statements made by her counsel to the presiding judge, 'I guess she would like to look at you,' and because he had advised her that in his opinion 'she would not receive the home.' Proceedings on the aborted stipulation were abandoned. Discussion in the chambers of the presiding judge with counsel for the respective parties, however, continued and was crystallized in the minutes of the court, which, in pertinent part, recite:
'Cause transferred from Department 24 on July 8, 1966 * * * and this court having declared a mistrial.
'The court hears counsel in chambers. All counsel stipulate that the cause may be submitted before Judge Bayard Rhone in Department 46 on the transcript of the previous trial * * *, the exhibits received therein and trial briefs and points and authorities submitted at the trial, said above enumerated to be used as the sole evidence in the determination of the cause, unless Judge Rhone requires additional testimony.
'* * *.
'Cause is transferred to Department 46 forthwith.'
The cause was submitted and no additional evidence was taken. Thereafter, on August 12, by written memo, the trial judge decided the action against appellant and rendered the judgment from which this appeal is taken.
The record clearly shows that appellant refused to have the presiding judge decide the case on the record of the aborted trial. It just as clearly shows that the discussion in the chambers of the presiding judge supports in all respects the recitals in the quoted minute order.
On the same day, to wit: August 5, another minute order was made in Department 46. It reads as follows:
'Cause, transferred from Department One, having heretofore been submitted upon the transcript of the trial before the Honorable Albert E. Wheatcroft, is taken under submission by Judge Rhone.'
Appellant contends that: (1) the declaration of mistrial in the prior proceeding rendered it nugatory and of no force or effect; (2) she was entitled to a trial which includes examination of witnesses before a competent tribunal of questions of fact and law; (3) the trial court was without jurisdiction or authority to order assignment of trial of this action by another Although the facts remain unclear on the point whether or not appellant objected to the stipulation of her counsel, we will assume for the purposes of decision that appellant did at all times object to the procedure. The crucial question raised by items (1) and (5), therefore, is whether that stipulation by appellant's counsel was in excess of his authority.
Section 283 of the Code of Civil Procedure provides in pertinent part as follows:
'An attorney and counselor shall have authority:
'1. To bind his client in any of the steps of an action or proceeding by his agreement filed with the clerk, or entered upon the minutes of the court, and not otherwise.'
The parties agree that an attorney may bind his client even against his client's wishes and that 'it is well established law that the attorney has complete charge and supervision of the procedure that is to be adopted and pursued in the trial of an action; * * * and '* * * especially in what may be termed purely procedural matters * * * an attorney is fully authorized' to bind his client.' (Zurich Gen. Acc. & Liab. Ins. Co. Ltd. v. Kinsler, 12 Cal.2d 98, 105-107, 81 P.2d 913, 917.) Nor is it disputed that 'The choice of proceedings, the forum, the manner of trial, and all matters of procedure, and the like are within the sphere of his general authority, and as to these matters his client is bound by his action.' (6 C.J. § 146 at p. 641, cited in Zurich Gen. Acc. & Liab. Ins. Co. Ltd., supra.)
A stipulation that the record of a former proceeding may be used as the sole evidence in a subsequent trial is well within an attorney's authority. (Smith v. Whittier, 95 Cal. 279, 289, 30 P. 529 (attorney's stipulation to have certain evidence introduced by transcript of testimony at a former trial). (Other examples cited: Zurich Gen. Acc. & Liab. Ins. Co. Ltd., supra, 12 Cal.2d 98, 81 P.2d 913 (lawyer had right to insist upon a jury trial against his client's wishes); Nahhas v. Pacific Greyhound Lines, 192 Cal.App.2d 145, 13 Cal.Rptr. 299 (attorney may refuse to call a particular witness); Bemer v. Bemer, 152 Cal.App.2d 766, 314 P.2d 114 (stipulation limiting issues or defenses to be tried); and others collected in 1 Witkin, California Procedure, pp. 66--69, cited in Harness v. Pacific Curtainwall Co., 235 Cal.App.2d 485, 491, 45 Cal.Rptr. 454.)
For evidentiary purposes, the transcript of a mistrial caused by disability of the judge after the evidence has been presented and the trial concluded, but before the decision has been rendered, does not substantially differ from a deposition upon oral examination taken before a judge (Code Civ.Proc. §§ 2016-2019; 179(3), nor from a transcript of a preliminary hearing. The taking of a deposition has been held to be a 'proceeding' of the court (Burns v. Superior Court, 140 Cal. 1, 9, 73 P. 597); the deposition may constitute the sole evidence supporting a finding, and is to receive the same weight as oral testimony. (Estate of Pohlmann, 89 Cal.App.2d 563, 573, 201 P.2d 446.) Transcripts of testimony from a former trial, consented to by counsel and the trial court, (see Blache v. Blache, 37 Cal.2d 531, 535, 233 P.2d 547; Grunsky v. Field, 1 Cal.App. 623, 82 P. 979; evidence from a hearing suspended by appeal, (see Gantner v. Gantner, 39 Cal.2d 272, 282, 246 P.2d 923), the transcript from a preliminary hearing; (see People v. Davis, 157 Cal.App.2d 33, 34, 320 P.2d 88), and depositions (Code of Civil Procedure, § 2016 Nor does this procedure, under these circumstances, deprive appellant, as she contends, of a trial which includes examination of witnesses before a competent tribunal of questions of fact and law. The validity and regularity of a trial solely on the basis of the record of a previous trial aborted because of the inability of a judge to proceed are clearly established by Tupman v. Haberkern, 208 Cal. 256, 261, 263, 280 P. 970.
Therefore, it is clear that the stipulation to submit the case on the transcript of the former trial is a matter of procedure within the attorney's authority and comes within the rule that an attorney may bind his client by such stipulation even against the client's wishes, unless the stipulation affected the client's cause of action. Appellant argues that she actually objected and that in face of objection 'no attorney * * * should be * * * empowered by law to stipulate away this important right under the guise that the attorney is in charge of matters pertaining to procedure.' We have held that 'The right of an attorney to stipulate in furtherance of his client's cause, whether substantively or adjectively, is fundamental to the attorney's authority in the attorney-client relationship. * * * Equally fundamental to this authority is the qualification that the attorney does not have the right to stipulate away the client's substantial rights or sole interest in the litigation.' (Harness v. Pacific Curtainwall Co., supra, 235 Cal.App.2d at page 491, 45 Cal.Rptr. at page 458.)
In support of her theory that the stipulation compromised or impaired her cause of action, appellant cites Ross v. Ross, 120 Cal.App.2d 70, 74, 260 P.2d 652 (attorney stipulated away a defense to cross-complaint); Daley v. County of Butte, 227 Cal.App.2d 380, 38 Cal.Rptr. 693 (attorney neglect which resulted in a dismissal); Rothtrock v. Ohio Farmers Ins. Co., 233 Cal.App.2d 616, 43 Cal.Rptr. 716 (consent to dismiss with prejudice after setting aside default judgment); Knowlton v. Mackenzie, 110 Cal. 183, 42 P. 580 (stipulation to modify a judgment); Price v. McComish, 22 Cal.App.2d 92, 70 P.2d 978 (attorney announced in court that client would be satisfied with nominal damages); Bice v. Stevens, 160 Cal.App.2d 222, 325 P.2d 244 (stipulation to dismiss with prejudice). In Harness supra, we held that a stipulation that a court could find negligence by virtue of the stipulation to make such a finding and irrespective of the record was to dispose of appellant's sole interest in the litigation, and was outside the authority of appellant's counsel.
The decisions presented in the cases cited by appellant demonstrate situations going beyond merely directing the manner of trial and the way evidence will be presented. These cases indicate a failure to litigate rather than the use of a particular method of litigating.
At bench, there was a full trial on the merits, conducted by appellant's attorney, which was not interrupted until after the conclusion of the case, although before the final decision could be rendered.
Appellant had the opportunity to present all evidence and cross-examine all witnesses. Furthermore, the presence of additional evidence on the issues in trial, if there was any, constitute matter entrusted to the sound discretion of the attorney conducting the case and is in his control to present or withhold, either at the previous proceeding, or at the subsequent one.
The fact that the deciding judge did not see the witnesses testify cannot be considered to have 'compromised' appellant's cause of action within the meaning of the cited cases, since the absent element did not disturb presentation of her entire case and did not compel an unfair result. The memorandum decision made clear that the divorce was denied appellant because of lack of corroboration of her testimony, a requirement of Civil Code, § 130. The decision stated: 'the corroborating 'The sufficiency of the corroborative testimony, * * * lies in the sound discretion of the trial court.' (Griffith v. Griffith, 129 Cal.App.2d 803, 809, 277 P.2d 850, 853.) Although appellant expresses doubt that the judge could conclude there was no corroborating evidence of cruelty by the respondent against her, while there was corroborating evidence of cruelty by the appellant against respondent 'without benefit of seeing or hearing the witnesses', it has been recognized that 'a favorable or unfavorable impression created by a courtroom appearance cannot supply the corroboration which the law requires in a divorce case.' (Julson v. Julson, 110 Cal.App.2d 797, 801, 243 P.2d 558.) It therefore does not appear that lack of demeanor evidence resulted in a compromise of appellant's case.
The stipulation in the case at bench is not within the limitation to the fundamental right of an attorney to control the manner of trial of his client's cause.
It was within counsel's authority to decide not to present additional testimony before the trial court, and it was not an abuse of discretion by the court to decide the case on the evidence in the transcript without 'seeking or presenting' appellant with an opportunity to present additional testimony.
Appellant insists that the trial court abused its discretion in refusing her a divorce based upon evidence of cruelty. The divorce was not denied on that ground.
The memorandum decision states that appellant failed to present any corroborating testimony as required by the civil code. The opinion stated 'The principal purpose of the requirement of corroboration is to prevent collusion. Where it is clear that there is no collusion, slight additional proof is all that is required. Benam v. Benam, 178 Cal.App.2d 837, 3 Cal.Rptr. 410. The instant case is seriously contested and there is no evidence whatever of collusion. However, the corroborating testimony offered by the plaintiff is entirely insufficient to be of any value--it amounts to no corroboration at all.'
The rule of review of a judge's decision on a transcript of record is settled. (Tupman, supra, 208 Cal. at P. 263, 280 P. 970.)
In Grunsky, supra, the decision was by the court on a record of a former trial as per stipulation of counsel. The court stated that the trial court's findings on the record would not be disturbed on appeal. In Roberts v. Roberts, 245 Cal.App.2d 637, at page 642, 54 Cal.Rptr. 223, at page 226, the court says:
'In reviewing an order made on affidavits involving the determination of a question of fact, this court is bound by the same rule that controls the resolution of a factual issue on oral testimony * * *.'
Appellant has not pointed to any evidence of corroboration in the record which the court did not take into consideration in reaching its decision. We cannot say it was an abuse of the trial court's discretion to conclude that evidence of corroboration was insufficient to support a finding of extreme cruelty.
The review of the record included in the discussion of the issues above discussed indicates clearly that there was no abuse of discretion in the denial of appellant's motion for a new trial.
The judgment is affirmed.
FLEMING, J., and NUTTER, J. pro tem , concur.
Assigned by the Chairman of the Judicial Council.