E. L. Cord, Individually and Doing Business as Los Angeles Broadcasting Company, and v. Calvin J. Smith, And
370 F.2d 418
9th Cir.
1966
Check Treatment

*2 CHAMBERS, Before BARNES Judges. DUNIWAY, Circuit DUNIWAY, Judge; Circuit motions, all have before us four relating to our decision November the case of Cord They (1) F.2d 516. a motion Cord are mandate, (2) clarification of our direct motion the dismissal of an action entitled Cord, (3) a motion At- torney Young our mandate that we vacate (4) opinion, mo- tion the same dismiss the first two motions. background

We first state the spread, mandate these motions. Our upon the records of the District Court on April 26, compliance mandate, the case was transferred 5,May On 1965 there on for came a motion protective order in noticed Cord for deposition. connection with a On that morning Attorney Young filed of Smith v. entitled Cord document Assignment “Complaint and Demand Jury Trial.” It names Assignee.” “Co-plaintiff, It refers complaint, incorporates alleges February 21,1964, before assigned He defendant. the action was against of action. cause states Smith’s cause action one-half his Cord, alleges assignee prayer recov- is for one-half is the ery. it, prays judgment accordingly, Young appeared half at the appearing jury demands a trial. The action announced that having by Young per. pro right, above “Com- was own filed Pursuant Assignment.” plaint He also filed so-called number” rule “low *3 asserted, Court, Judge Crary, he in District whom “declaration” which assigned things, Young among mandate of case of that v. Cord was other obtained when it the case this court is invalid because transferred Judge not sworn fraud. This document notary, that it states before a but deposition appeared At Smith perjury.”1 penalty

made “under of Attorney West, Young appeared, hearing, claiming right plain present made an a At the court to be as partici- Young said, Cord, prohibiting Young which, tiff from in order attorney in had pating accord- been with Smith v. Cord. further consolidated then filed In had this he was in error. The case ance with our mandate. Young’s “Complaint Judge Whelan, transferred a motion to strike Assignment,” on for hear- not consolidated Ol on which came with Smith Cord. Young son, Young’s 14, attorney, objected filed ob- on June 1965. Cord’s Young presence. which, right jections, as the “declaration” a in in asserted indulged mentioned, present, in fur- and West concurred with type agreed in described views. It was then Olson ther invective of between (see previous opinion deposition F.2d at that the be continued West our 525). August place. in 16, affidavit until same He also filed an at attorney, oral mean that Cord’s was in the which he thought assignment October, time affirmed to seek relief he whatever in February proper Young’s assignment in further on relation to a written participation In states that case. a letter 1964. affidavit he In his arrangement West, day, Smith same Olson had written on the had protective contingent fee, ter- that he to seek which intended 10% August Judge September, filed 9. minated Whelan This, however, If there let effect. was followed two the same an affidavit validity pre- assignment, ters from it was in which the be a written again attacked, court, have of and we our mandate was trial sented to the hearing, Young indulged in in further J not seen At the une it. assuming believed, it vective. court indicated Young be- his own a claim on had July 8, On Olson filed half, that he should pending motion of for clarification separate indicated lawsuit. request- of mandate. motion our Cord’s The separate suit. he would file such stay. suggestion ed At of this circumstances,” “under those stayed proceed- all Whelan strike, granted “on motion to Cord’s ings days. August 17, for 60 On deposition to be The basis.” joint response, counsel, rescheduled taken Cord’s per. by Attorney pro West and of Cord’s the office June They requested heard all matters be counsel. banc, panel en the members disqualified, prior our 1965, Young sep- filed a June On expunged, opinion and the vacated 65-889-E.C. complaint, action No. arate dismissed, plaintiff motion be and certain he names himself in which proper v. R. in a J. Watkins affidavit federal court. Hoston is not a document Such a Cir., 1962, F.2d moving banc, papers request en ac- for a relief. setting companied by motions now affidavits) (three us. and Smith. before We do the contents of these not detail vacate our mandate motions to large part affidavits. those of opinion. our repeat kind villification a. Jurisdiction. and Cord that we commented in our acted is asserted that we with prior opinion. filing papers of these jurisdiction. out or in excess Attorney granting Olson’s ground rejected. argument quest reply produced for time in which to that we treated the barrage of wires and letters writ, appropriate for an Young. September On moving papers but did not have the reply any was filed. denies fraud -It respondent. served on Clarke is ac- court or on Clarke and opinion shows, treating *4 As our the companied by by Olson, Wood- application matter as for a writ was Neuhoff, attorneys, burn and and pursuant request, appeal- the by They secretary. Cord and Olson’s ability being doubt, the order provoked vituperative another wire the matter heard on the merits on was by Young, followed another affidavit proce objection that basis. to this No be in which asks to dure was then or voiced vigorous respondent made a and makes a Young. Having the concluded personal Attorney attack Olson. refusing disqualify ap was not by Murray, There who followed affidavits pealable, proceeded we to treat the mat Young, was co-counsel for Smith and proceeding ter All as a the under Writs Young, Smith, and further letters Act, 28 U.S.C. Judge wires Clarke. charges were Because of all the objection comes too late. being made, stay of we issued a broad jurisdic goes We do not think that proceedings all below. any tion sense. fundamental Or dinarily, filing appeal a notice of the papers All in the case were then sub- brings court, the this whole case to judges mitted to all active orders, this court make such can then panel. than members of this the case, directed to tried the the court They unanimously, concluded, the may proper.2 Yet the trial court disqualification of the members technically party is not to the case on frivolous, panel none appeal. form, proceeding In under pending of the issues is of a kind different, All Writs in that Act appropriate for an en banc considera- nominally proceed court is to the Thereafter, tion. on March ing. substance, however, and almost denying entered an order Smith’s universally practice, the burden of us, grant- disqualify motions to litigation parties the real is carried ing Judge request that he Clarke’s respond in interest than rather denying court, just papers respondent, All made ent here. as it was jurisdiction Certainly Act, this court had 3. Neither All 28 U.S.C. § Writs prescribe appeal pend while the nor the rules of require appeal any particular procedure, or as to whether the order Secretary Ruby distinguished able. the United from the real Cf. Cir., 1966, papers. Navy, interest, 365 F.2d 385. be served States jurisdiction Compare proposed when continued we elect Federal Rule 20 Procedure, Appellate ed to F.R.D. treat the matter Rules of provides Trade for a Federal writ. See Commis 294-295. service parties Co., 1966, judge sion Dean Foods U.S. and on the litigation. (b) Subparagraph 603-605, L.Ed.2d clear- ly recognizes parties, not carry judge, normally on the case. meeting. request, Ol- not included were served affidavit, of his co- counsel, son’s and those and both Smith meeting deny counsel, flatly fully represented that such a and their occurred, supporting position the denials with merits. on its was considered detail. Ol- circumstantial considerable can be our mandate Insofar any son also denies Clarke, Judge than rather said to affect was made. procedural defect Smith or unnecessary to decide deem it At his cured. relied has now been meeting whether occurred request, made own Clarke agreed occur, whether, if it did And, respondent. ever if there was say to what Clarke he should a doubt as to whether meeting oc- did. The said to have pro any permitted hear 16, 1964, and curred on June ceedings case, has now that doubt any made, agreement, breach- has been removed. In his affidavits July 18, 1964, ed on Olson filed litigant, aligned position of a taken the Ob- notice of on Cord’s behalf. Smith-Young case. side was, viously fraud, if fraud there circumstances, it would Under those was known to and to Clarke certainly improper him to con July later than 13. Thereafter judge in matter.4 tinue to as a act papers was veritable cascade of b. Fraud. argued on this court. The matter was *5 September 9, 1964, decided on No- essence, the claim of Smith 4, vember 1964. Yet there is not a word Young, that and of is any paper the fraud in about attorney entered into an that was filed that time. agreement with us that Olson would with them quite It us seems remarkable to appeal to dis- if the refused there had been such fraud as is the qualify in reliance on claimed, brought to at- it was not Young agreement refrained tention, particularly and at once. presenting testi- material certain remarkable because mony, case was and that as result file, purported in the that he did presented that did not on a record to us outraged proceeding. to be at the whole speak claimed that the truth. Thus it is outrage Yet did to what his not extend obtained fraud and our decision was fraud, gross perpe- he now claims was a aside.5 should be set only trated not on himself and his client issue, and detailed numerous On this upon judge the trial agree- The have been filed. affidavits this court. made at a con- been said to have ment is argument, At oral chambers, Clarke’s ference the fraud had to our atten- been called alleged are set out in detail terms tion. He referred to an affidavit made Clarke, by Young and affidavits August on himself and filed with us only persons Ol- other than are the who 12, only language to present. said to have son are who following: point he could is the long and detailed affidavits are supplement to “This affidavit is filed to have been said is claimed to what hearing before the the record If he said what Olson. certainly District Court on the motion of the said, derelict say petitioner disqualify plaintiff’s client, selling his Cord to duty to his his attorney, river, and is in addition to the and was position down client’s testimony Lyndol L. at the doing his co-coun- backs of it behind hearing but, on said motion which at sel, the courtroom who v. Hartford See Hazel-Atlas Glass Co. 4. 28 U.S.C. -Empire Co., 322 U.S. L.Ed. 1250. over with this nine months after our decision came on file and is transcribed down, would have and more than months after Affiant five Honorable Court. Supreme Court, but coun- so testified objected testimony March con- denied motion for sel for Cord joint petition pro- cerning leave to file of the Smith for a writ details 109; agreement. pp. 107 hibition or mandamus Tr. directed to venture court. pp. We are entitled to view the claim 337 to 339.” light facts, of fraud in the of these language, Nothing in that regard skepticism. it with considerable sug- refers, transcript even to which it agree- gests such an there had been alleged Moreover, does not fraud is now go ment as asserted. the heart case —the of whether acted attor- as Cord’s quite true While it ney at the time Smith- always aside can set court agreement ques- That made. fraud, it obtained from that was testimony fully explored. tion was v. Hart in Hazel-Atlas Glass Co. is held say they ford-Empire and Smith supra, n. know permits party, given who knows him- no relates to rule whether acts, to with the facts before the court participated making self the claimed them, hoping de a favorable hold agreement. Young par- Smith-Cord merits, cision on ticipated Conse- is nowhere denied.6 favorable, to come back decision is not likely quently not at all cry That is “fraud.” what court if the result been different would have happened of fraud was here. The claim testimony given. had been papers filed made in the first motions August 17, vacate over year will be denied. after notice of telephoned affidavit, with this Cal- 6. In *. That affiant ap- Angeles August and dis- vin in Los J. Smith (reference pears: cussed *6 disqualify whereby to which him would receive a sal- the motion he immediately profit place ary per and a $250.00 took of month services, meeting agreement sharing claimed between for his Judge Clarke) whereby fifty percent and would receive profits examined affiant both from the earn- “That cross of the net ings of radio sta- about matters that were borderline the sale said and making joint agree- venture had reimbursed tions after Cord ** ment, whereupon capital *. stated that affiant for his full investment personally agreement present affiant made said Oord with That Cord directly Smith, telephone as well n and himself with office when Cord’s president place, and that simi- as general affiant as the took conversation manager Broadcasting general affiant lar between conversations Company, and denied that af- affiant J. Smith had Calvin agreement subsequently full made said with Smith with the fiant occurred ** attorney approval knowledge as and consent and July 13, Smith, filed on the *. That An affidavit same day, contains similar statements. in an accident Cord was involved hospitalized Young’s filed with this court him at the Samaritan affidavit Good August 12, 1964, following ap- Angeles. Hospital affiant in Los pears : and talked to Cord visited with patient “That affiant were both in in said and Cord the time that hospital was a Chicago during office in several affiant and that Cord advised * ** go between conversations and discussions that affiant was to ahead them, agreement that affiant should concluded with the Calvin J. Smith telephone training in Los An- Calvin J. Smith him to succeed af- to start geles general manager president offer Calvin J. fiant as general agreement Broadcasting Company upon an to become Smith manager president joint agreement.” of said Broad- venture basis casting Company affiant retired ap- 2. The motion to dismiss Cord’s He would also seek to show that he was plication. assignee. in fact an Smith admits the assignment; In sub- Cord does not. the fact that This motion is based on then, Young stance, necessarily would relating Young’s no final claim- doing, indirectly, very thing right participate pro per ed assignee an prohibited doing assisting from — by Judge was made pressing This his suit. is too disagreement is, however, sharp There easy way disqualification. to avoid the our between the as to whether assign- We need not decide whether the pro- prevent mandate would made, whether, made, ment or ceeding assignee the case as Young.9 valid, as between and we think if the case mandate, We do hold Young under our merits,7 is ever decided participate in is not entitled to pre- question should answer the any manner, the case in attorney either as an sented to us.8 The motion to dismiss party, or as a or to maintain denied. against upon an action Cord based 3. The motion our assignment. may not, for clarification And he mandate. prior opinion, we indicated in our assist attorney by or Smith or his consultation We directed that the trial court pending advice. case of Lyndol Young, Esq. “order that shall Cord should be dismissed. indirectly, any time, directly not at or The motions to vacate our mandate attorney not, and whether as of record or opinion and to dismiss Cord’s represent, plaintiff counsel or advise Cal of our man- for clarification vin J. in connection with said ac date, mandate is are each denied. Our tion.” F.2d [338 526] hereby provide that clarified to further Young’s participation done. Would the trial Young Cord, case of court shall dismiss the assignee think ? violate such order We 65-889, pro- and shall No. that it would. claim rests participating hibit validity Cord-Smith party, pro per otherwise, in either in agreement. major effort, therefore, His stay or- the case of Cord.10 Our Smith v. lawsuit, as a permit the District ders are modified to Court, pro- show other than made, enforeible, and was breached. dispose ceed of the case of to hear and happened exceptional dem- since our decision What cause of the question nature delay presented, in error that we were not onstrates refusing occur, hold that that would otherwise and the ex- *7 presented already up then said: was moot. We heat that has built cessive “Young’s attitude, part parties trial both in the of all to the case. benign. gives here, court and was not See, however, rules Rules withdrawal us little confidence Bar Professional Conduct of the State complete practical purposes, even California, West’s though longer no of record counsel Prof.Code; Ann.Cal.Bus. & Cal.Bus. & (338 521). F.2d at the district court” Prof.Code Sec. Canons 6 and Drinking Cup Pub v. Cf. Individual Co. of Professional Ethics the Canons Cup Co., Cir., 1919, F. lic Service of the American Bar Association. We Cir., 410; Epstein Goldstein, v. assignment was never note proceed 110 F.2d decision to 747. Our brought to our attention when the case an in- is not to be taken as this case previously submitted us. cases. that we will do so dication procedure contrary, argument, Young the better 10. At oral On the indicated participate, to obtain he does not now desire to ei- attorney. question in Pre- the trial court. Even ther as a not, case, grant sumably, therefore, v. will the usual interlocutory. proceed can to trial in due lief the order is only grant be- course. relief here are moved respects Cord, all other but they in effect. are continued Judge (concur-

CHAMBERS, Circuit

ring). foregoing opinion. I I concur permit Messrs.

hope that the decision suit on with their I am not sure

in the district

it will. alone, acting I I If were believe extraordinary de-

I would resort appointing equity receiver

vice represent in court. Mr. now, dignity. might As restore charges scattergun Mr. makes opposing over-reacts. counsel INC., CUTTERS, STONE

IMPERIAL Floyd Trindle, Corporation, and W. Appellants, Individual, SCHWARTZ, Appellee.

Herman

No. 18436. Appeals Court of Eighth Circuit.

Dec.