Able v. Van Der Zee

• Decision Date: 07 December 1967
• Citation: 64 Cal.Rptr. 481,256 Cal.App.2d 728
• Parties: B. Renault ABLE, Plaintiff and Appellant, v. Cass VAN DER ZEE, d/b/a Zee Construction, Defendant and Respondent. Civ. 31958.
• Court: California Court of Appeals Court of Appeals

Page 481

64 Cal.Rptr. 481

256 Cal.App.2d 728

B. Renault ABLE, Plaintiff and Appellant, v. Cass VAN DER ZEE, d/b/a Zee Construction, Defendant and Respondent.

Civ. 31958.

Court of Appeal, Second District, Division 1, California.

Dec. 7, 1967.

Little, Ross & Pierson and Edward M. Ross, Inglewood, for appellant.

Wells & Herring and William G. Wells, Santa Monica, for respondent.

FOURT, Associate Justice.

Doctor B. Renault Able appeals from the order of the superior court sustaining without leave to amend the general demurrer of Zee Construction and dismissing Able's action. ¹

Able's complaint alleges that he employed Cass Van Der Zee, doing business as Zee Construction (hereinafter sometimes referred to as Zee), to construct certain improvements on real property owned by Able. A dispute arose between the parties concerning the work and payment therefor, and on November 5, 1964, Zee filed an action in municipal court to foreclose a mechanic's lien on the property. Able employed the services of attorney Richard Crail, who negotiated with Zee's attorney but filed no answer and made no appearance in the municipal court action. On December 14, 1965, Zee filed a 'Request for Entry of Default' and on July 6, 1966, he obtained a $4,165.18 judgment and decree of foreclosure and sale.

Meanwhile, Able obtained his file from Crail and in April 1966 he contacted his present counsel, David Pierson, regarding the matter. Pierson filed no answer but thereafter contacted and pursued negotiations with Zee's attorney in ignorance that a default had been requested. Neither Able nor Pierson received notice when judgment was subsequently entered, but on or about October 1, 1966, Able was served with a notice of sale on a writ of enforcement issued September 22, 1966.

Pierson thereafter filed an action in municipal court to set aside the judgment under Code of Civil Procedure, section 473. The matter was heard on October 28, 1966, but the request was denied because more than six months had elapsed since the default had been entered. (Castagnoli v. Castagnoli, 124 Cal.App.2d 39, 41--42, 268 P.2d 37.)

Pierson thereafter filed an action in court this action in equity to set aside the judgment on the basis of extrinsic mistake alleging, on information and belief, that Richard Crail believed that he had an extension of time in which to answer the complaint in municipal court, and that Pierson received no notice that Zee had obtained a judgment by default. He further alleges that Able has a meritorious defense to Zee's claim based upon (a) an offset for Zee's negligence in performing the work of construction which damaged Able in the amount of $1500 and (b) a credit against the judgment of an additional $1,000 which Able paid to Zee. Finally, the complaint alleges that the foreclosure sale will cause Able irreparable harm for which his remedy at law is inadequate.

At the time he filed the complaint, Able also requested and obtained, upon the declaration of Pierson, a temporary restraining order to prevent foreclosue upon his real property. Pierson stated in support of the restraining order that he believed that he had an open extension of time within which to plead, that he was advised at a meeting with Zee's attorneys and members of the State Contractors' Licensing Board that no action would be taken until a hearing had been held before the board, that no such hearing has as yet been held or definitely scheduled, and that he had no notice of the default until on or about October 1, 1966.

Within 10 days from the date upon which Able's complaint was filed, Zee's attorneys served Able with a request for admissions pursuant to Code of Civil Procedure, section 2033. Attached thereto were copies of three letters which they had addressed to Able's former attorney, Richard Crail, and which were dated, respectively, December 15, 1964; March 15, 1965; and November 29, 1965. In each letter Crail was courteously advised that if he did not promptly appear in the action they would request a default. Able was requested to admit or deny (1) the genuineness of the documents; (2) Richard Crail's receipt of the letters; (3) that Able had held the letters in his own possession from about December 1, 1965, until April 1, 1966; (4) that his present attorney had subsequently taken possession of the letters; and (5) that he had in his possession no documentary statement from Zee or his attorneys granting an extension of time to plead. These requests for admissions were never answered, and may be deemed admitted. (Code Civ.Proc. § 2033.)

Zee filed no answer, but on November 17, 1966, he submitted a general demurrer based in part upon the fact that, receipt and possession of the several notice letters having been acknowledged, Able could show no justifiable excuse either for his own neglect or that of his attorneys. Hearings on both Able's request for temporary injunction and Zee's demurrer were combined for hearing on December 2, 1966. On that date, Able filed the additional declaration of Richard L. Crail in support of the injunction, and William G. Wells, Zee's attorney, filed his own declaration in opposition thereto. The matters were submitted; Able received additional time to file points and authorities concerning the court's jurisdiction, and Zee was given the opportunity to file further counter points and authorities. On December 6, 1966, Wells filed the declaration of his secretary, Barbara E. Dailey, and the parties subsequently presented their additional points and authorities.

The declarations filed in this action relate directly to the merits of the case. Crail's declaration relates that between November 8, 1964, and December 15, 1965, he was negotiating with Zee's counsel, especially concerning lie detector tests which the parties had agreed to take on the issue of payment and receipt of the disputed $1,000; that he telephoned Wells on November 29, 1965, but Wells was unavailable and he was assured by Wells' secretary that she would transmit his message requesting that no default be taken pending Wells' arrangements for the lie detector tests and further efforts toward settlement; that thereafter he frequently called to ascertain whether Wells had arranged for the tests, but could never reach Wells, who failed to return the calls; that after he returned the file to Able he had no further communication from Able or his counsel relating to the matter until October 26, 1966.

The declarations of Wells and his secretary in opposition state that Wells never agreed or stipulated to extend time for Able to answer, nor did he enter engotiations for settlement. Although the parties discussed polygraph tests, Able repudiated their agreement to undergo the tests. Wells frequently notified Crail and his office, by telephone and letter, that he should appear or a default would be taken. Wells had only one secretary and she worked in his office throughout November and December, 1965. She examined the telephone records and she had no recollection and found no record of a call from Crail or anyone acting on his behalf during those months.

Able's...