I respectfully dissent. The majority holds service of interrogatories on a suspended attorney of record does not provide notice to his former client and therefore the default judgment taken against Santa Fe is void. It relies on Antonsen v. Pacific Container Co. (1941) 48 Cal.App.2d 535 [120 P.2d 148] in support of its position. However, Anton-sen is distinguishable. The petitioner, a Washington resident, gave a power of attorney to a California resident for limited purposes. The latter hired an attorney to file suit. One month after the attorney was suspended, he was served with the defendants’ answers and cross-complaints. He did not notify the client. Default judgments taken by the defendants were unknown to Antonsen until collection attempts five years later. The court determined Code of Civil Procedure section 2861 removed the suspended attorney’s authority to act and plaintiff could not be charged with knowledge of the invalid service. However, the plaintiff had no knowledge of the action, did not direct the filing and did not know the attorney had been suspended. The court found “plaintiff was deprived, through no fault of his own, from appearing and presenting his defense . . . .” (Id., at p. 539, italics added.)
Santa Fe knew of the lawsuit, had received service of process, answered and participated in discovery, and although aware of Black’s suspension in March of 1980, did not effectuate a substitution of attorney until April of 1982. New counsel’s failure to complete the substitution,2 coupled with the failure of Santa Fe’s in-house counsel to monitor the case, led to the eventual dismissal of Santa Fe’s answer. Relief from default should not be grant*557ed if the complaining party has not given “the attention to the suit filed against them which ordinarily prudent businessmen would give to a matter of serious concern.” (Wattson v. Dillon (1936) 6 Cal.2d 33, 37 [56 P.2d 220].)
Under the facts of this case, I fail to see the logic of requiring the proponent of interrogatories to launch an independent investigation of his opponent each and every time discovery is refused or delayed. The opponent was the party with knowledge of the suspension and in fact hired new counsel for the two cases. Substitution was effected in the companion case and a favorable judgment received at trial. But neither in-house counsel nor new counsel concerned themselves with the status of the Lovato case. Black’s failure to comply with rule 9553 harmed both Santa Fe and Lovato, but it was Santa Fe who' was in a position to prevent the wrong. Lovato, who did not know of the suspension, relying on the record as filed by Santa Fe and proceeding in the manner prescribed by law, should not now suffer. Santa Fe, who knew of the suspension and failed to correct the record as provided in section 284, should not, by its own negligence, be allowed to deprive itself of due process.
To allow Santa Fe the protection of Code of Civil Procedure section 286 in this context would be inequitable. The majority concludes lack of constructive notice requires avoidance of the judgment. However, the issue is not lack of notice, but waiver of that notice. “[T]he obvious purpose of section 286 is to provide for notice to a party who might otherwise be taken unawares. Like any other legal right, this protection may be waived . . ...” (California Water Service Co. v. Edward Sidebotham & Son (1964) 224 Cal.App.2d 715, 736 [37 Cal.Rptr. 1], italics added.) Any notice given by Lovato would have been merely cumulative. Santa Fe knew it needed and therefore obtained another attorney. There is no duty of opposing party to insist a substitution be filed. The section 286 “requirement may be waived; e.g., where the evidence shows that the client is fully aware of his attorney’s death.” (1 Witkin, Cal. Procedure (2d ed. 1970) Attorneys, § 35, p. 44.) City of Los Angeles v. Morgan (1951) 105 Cal.App.2d 726 [234 P.2d 319] is cited by the majority for the proposition a judgment rendered without service of process is void. However, the holding is carefully limited to those situations where there has been no “voluntary appearance or waiver” (id., at p. 730, italics added).
*558And finally, I am not convinced the service of interrogatories on a suspended attorney is invalid as a matter of law. In Reynolds v. Reynolds (1943) 21 Cal.2d 580 [134 P.2d 251], a judgment was upheld against a defendant who had by letter discharged his counsel prior to hearing. The court found a client may discharge his attorney at any time. However, during pendency of an action service of papers on the attorney of record “binds the client until the attorney is discharged or substituted out of the case in the manner provided by law [citations]. The court is concerned in such cases not with whether the client is represented by an attorney, but whether he has an attorney of record, whether any change in attorneys has been made as provided in section 284 of the Code of Civil Procedure, and whether notice thereof has been given as provided in section 285 of that code. . . . The attorney of record is the person the client has named as his agent upon whom service of papers may be made. The statutes informed defendant that if he had no attorney of record the clerk of the court became his agent for the purpose of service. The burden lay upon the defendant to keep an attorney of record or to make such arrangements for notice with the clerk as he thought advisable. [Citation.] If defendant had noted his discharge of Loucks in the record, plaintiff could have made service on the clerk of the court. The record, however, showed Loucks and Phister as counsel, and the court and opposing counsel were entitled to rely thereon until it was changed in the manner prescribed by law.” (Id., at pp. 584, 585; italics added.)
I recognize the policy of the law is to encourage trial and disposition on the merits (Daley v. County of Butte (1964) 227 Cal.App.2d 380, 389 [38 Cal.Rptr. 693]), however, a motion for relief from default is addressed to the sound discretion of the trial court and its decision will not be disturbed absent a clear showing of abuse. (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 898 [187 Cal.Rptr. 592, 654 P.2d 775].) When, as in the present case, discretion is exercised pursuant to the court’s inherent equitable rather than its statutory powers, relief should be “denied when the complaining party has contributed to the fraud or mistake giving rise to the judgment thus obtained. [Citations.] ‘If the complainant was guilty of negligence in permitting the fraud to be practiced or the mistake to occur equity will deny relief.’ [Citation.]” (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 473 [82 Cal.Rptr. 489, 462 P.2d 17, 39 A.L.R.3d 1368]; Smith v. Busniewski (1952) 115 Cal.App.2d 124, 127 [251 P.2d 697].)
I would affirm the judgment.
Respondent’s petition for a hearing by the Supreme Court was denied April 19, 1984.
That Black apparently did not sign a substitution is of no moment. Torribo, Miller and Santa Fe could and should have filed notice with the court and Lovato pursuant to Code of Civil Procedure section 284, subdivision 2.
Santa Fe’s contention it should be relieved from default based on Black’s positive misconduct is unsupported by the authorities it cites; they deal with attorneys of record who were 1) licensed to practice law, and 2) continued to be relied upon by their clients while the positive misconduct was occurring. Santa Fe was not relying on Black and took no action to inform the court or Lovato it had hired new counsel.