In 1978 the Rosenthals effected service upon Garner by publication and in 1979 obtained a judgment after default. And the uncontradicted evidence is that Duffy did not communicate to Garner about the existence of the action filed by the Rosenthals. If you are unable to accept service, please provide us with the address of your client."Īgain, the uncommunicative Duffy did not respond to counsel for the Rosenthals. as a result of the levy filed on my client's property."ĭuffy did not respond and the Rosenthals brought the instant suit against Garner on April 15, 1977, by filing a "complaint for abuse of process, to remove cloud on title, slander of title, declaratory relief, intentional infliction of emotional distress, and trespass." On August 17, 1977, the Rosenthals' attorney mailed to Duffy a copy of such complaint and summons thereon with a covering letter which stated: "If you are authorized to accept service on behalf of Carrie Garner, please execute the enclosed Notice and Acknowledgement of Receipt and return it to me in the envelope so provided. within 10 days from the date of this letter, you will leave us no alternative but to proceed to clear my client's property title and to sue. Thereafter, on November 5, 1976, counsel for the Rosenthals advised Duffy by letter that unless specified wording satisfactory to the former for the purpose of removing the purported cloud on title were presented ". Twelve days before the scheduled sheriff's sale of the real property on October 13, 1976, Duffy directed the sheriff to cancel the sale, and no sale was held. A request on behalf of the Rosenthals was made to Duffy to remove any cloud on title created by the levy and notice of sheriff's sale under execution. Both the sheriff's notice of levy and notice of sale under execution were directed only to ". Such real property, once owned by the Fahads, had been conveyed to respondents Rosenthal before the levy. Garner obtained a judgment for damages against the Fahads and sought to enforce the judgment by a levy upon certain real property under a writ of execution. He represented appellant Garner in earlier automobile accident litigation against third parties named Fahad. We answer in the negative and reverse the trial court's order denying defendant's motion to set aside the default and default judgment taken by plaintiff respondents against defendant appellant.ĭuffy is a lawyer, apparently of uncommunicative nature, as will develop. The principal question asked is whether an attorney's knowledge of the existence of a newly filed lawsuit (against his client) arising out of old litigation in which he represented the client should be imputed to the client under agency principles so that the client is deemed to have had "actual notice" under Code of Civil Procedure section 473.5. J., with Thompson and Johnson, JJ., concurring.) NICHOLAS ROSENTHAL et al., Plaintiffs and Respondents, v.
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