Metropolitan News-Enterprise


Monday, March 25, 2002


Page 3


Default Not Available for Failure to Appear, C.A. Rules


By a MetNews Staff Writer


Los Angeles Superior Court Judge William McVittie—who has since retired—abused his discretion in striking the answer and ordering default against a defendant who failed to appear for trial, this district’s Court of Appeal has ruled.

In an unpublished opinion by Div. Three, released Thursday, the court reversed McVittie’s ruling against George Shei, a man who was convicted of drunk driving and was sued for damages by the driver he hit.

The plaintiff, Brian Dryer, immediately had difficulty with his lawsuit after filing the complaint in November 1998. Dryer’s investigator discovered that Shei used numerous aliases and had a number of addresses.

His place of business was finally discovered and he answered the complaint in June 1999, then failed to respond to interrogatories and was told by a lawyer for a man with the same name as one of Shei’s pseudonyms that Shei was in Taiwan and had no plans to return to the U.S.

Dryer also learned that Shei’s license had been revoked for drunk driving in 1989, that there was an outstanding bench warrant for Shei’s arrest, and that he had not reported to his probation officer.

Shei’s lawyer told the court he was trying to reach his client but couldn’t, and McVittie levied monetary sanctions of $548 against Shei for failing to comply with the discovery requests, and deemed all of the issues admitted.

Then Shei failed to appear at trial.

McVittie granted the motion to strike the answer, saying:

“The defendant has previously failed to comply with the court process. It’s obvious that he has violated his obligation to his own counsel. He is not here. There’s no excuse for him not being here. The plaintiff does have the right to have him here and cross-examine him; therefore, the request for default is appropriate, and I am granting that motion.”

Justice Richard D. Aldrich said McVittie acted properly in most of his rulings, including a finding on a motion for reconsideration that Shei had failed to carry his burden under Code of Civil Procedure Sec. 1989 to show that he was not a resident of California.

But Aldrich said McVittie erred in granting Dryer’s motion under Sec. 594 to proceed in default, because that statute allows default as a discovery sanction, not for failure to appear.

Dryer argued that the sanction was available since Shei repeatedly failed to cooperate in discovery, but Aldrich noted that McVittie had already deemed all issues admitted as a discovery sanction, and that no further discovery occurred.

There was thus no further basis to impose discovery sanctions, Aldrich said, leaving failure to appear as the only basis for dismissal—and failure to appear is governed by Sec. 594, which does not include default as a remedy.

Trial could have proceeded without Shei on the issue of damages, the justice said.

Besides, Aldrich noted, there was no noticed motion to dismiss for failure to appear.

“The notice and public hearing requirement is not merely a statutory requirement, but a due process mandate,” the justice said. “Here, no such motion was given that sanctions beyond what was already levied would be considered.”

The case is Dryer v. Shei, B147292.


Copyright 2002, Metropolitan News Company