Lint

I agree with the majority in all respects save for that portion of the opinion which implies that an appearing party forfeits his status as a party litigant when he fails to show up for trial. (See ante, p. 621.) In my view, there may be many reasons why a party, after paying the necessary filing fee to answer a complaint, may prefer to absent himself from the courthouse. The emoluments of a party litigant, i.e., one who has paid the necessary fee to appear in the action or who is excused from the payment of that fee, should include the right to avoid the expense of appearing in court for the sole purpose of rejecting a tendered stipulation for the appointment of a temporary judge. Sarracino v. Superior Court (1974) 13 Cal.3d 1 [ 118 Cal.Rptr. 21 , 529 P.2d 53 ], relied upon by the majority, does not involve an appearing party. The holding is limited to a defaulting party who later filed his pleadings. ( Id., at pp. 8-9.) Bill Benson Motors, Inc. v. Macmorris Sales Corp. (1965) 238 Cal.App.2d Supp. 937 [ 48 Cal.Rptr. 123 ], is not binding precedent on the issue of forfeiture because it was decided by the appellate department of the superior court on unique facts with its holding…

C. Chisholm appeals an order denying his motion to vacate a default judgment (Code Civ. Proc., § 473 )- He asserts multiple grounds: surprise, excusable neglect, absent his stipulation the temporary judge lacked authority to enter the default judgment, variance between the judgment and minute order, variance between the relief granted and that prayed for, and error in the court’s failure to dispose of his cross-complaint or calculate the factors argued in it. Chisholm, a self-represented lawyer, also attacks the denial of his motion for summary judgment.

Background

In August 1976, Sandy Lint filed a complaint with the municipal court claiming conversion, breach of contract and fraud. Following Chisholm’s unsuccessful summary judgment motion, she filed an amended complaint. Chisholm answered and cross-complained.

Chisholm then removed the case to superior court, and was ordered to pay the transfer fees. Consistently, with his utter disregard for other procedural rules of court, he refused to pay them for over two years. After numerous attempts to contact him proved unsuccessful, Lint, who originally filed as an indigent, paid the fees herself. The case was transferred…

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 618 OPINION C. Chisholm appeals an order denying his motion to vacate a default judgment (Code Civ. Proc., § 473 1 ). He asserts multiple grounds: surprise, excusable neglect, absent his stipulation the temporary judge lacked authority to enter the default judgment, variance between the judgment and minute order, variance between the relief granted and that prayed for, and error in the court's failure to dispose *Page 619 of his cross-complaint or calculate the factors argued in it. Chisholm, a self-represented lawyer, also attacks the denial of his motion for summary judgment. BACKGROUND In August 1976, Sandy Lint filed a complaint with the municipal court claiming conversion, breach of contract and fraud. Following Chisholm's unsuccessful summary judgment motion, she filed an amended complaint. Chisholm answered and cross-complained. Chisholm then removed the case to superior court, and was ordered to pay the transfer fees. Consistently, with his utter disregard for other procedural rules of court, he refused to pay them for over two years.…