Baratti v. Baratti
| Decision Date | 24 March 1952 |
| Court | California Court of Appeals Court of Appeals |
| Parties | BARATTI v. BARATTI. Civ. 18732. |
George A. Pickering, Los Angeles, for appellant.
Walter C. Harbert, Los Angeles, for respondent.
Appeal by defendant from an order denying her motion to vacate a default and an interlocutory decree of divorce based thereon.
The complaint was filed November 16, 1950. The summons and complaint were served on defendant on November 19, 1950. The default of defendant was entered December 4, 1950. Plaintiff was awarded an interlocutory decree on December 26, 1950. On May 21, 1951, defendant filed her notice of motion to vacate the default and the decree on the ground of 'mistake, inadvertence, surprise and excusable neglect on the part of defendant,' and an affidavit in support thereof.
The affidavit of defendant stated: the defendant is pregnant; the child is expected in July, 1951; plaintiff and defendant engaged in sexual intercourse until the end of October, 1950; the child is that of the parties; neither the complaint nor the interlocutory decree mentions the child; defendant did not know she was pregnant until December 26, 1950; had she known that fact, she would not have permitted her default to be taken; when she first learned she was pregnant she told plaintiff about it; he promised to help her with the expense of the child's birth and with its support; since then plaintiff has avoided her, and now denies he is the father.
The affidavit also stated: when plaintiff sued her she was confused and did not know what to do; she consulted her present attorney on February 21, 1951; she has stated the facts to him and he has advised her she has a meritorious defense and a valid cause for cross-complaint; defendant is able to support her and the child, and she is not.
With her notice of motion defendant presented a proposed answer and a proposed cross-complaint.
Plaintiff filed an affidavit in opposition to the motion in which he stated: he saw defendant on November 19, 1950, after she was served with the summons and complaint, and she said she was not going to contest the action; she did not inform him she was pregnant until January 27, 1951, although he saw her on December 26, 1950, and on January 2, 1951; he did not engage in sexual intercourse with her after they separated on August 15, 1950; he is not the father of the child; he did not promise defendant he would help with the expense of the birth of the child or with its support.
Defendant, in a counteraffidavit, stated: she does not deny she knew she was being sued for divorce 'but says that she was confused, inexperienced, and did not know what to do about it'; 'her confusion arose out of consideration of the best course to follow in order to reach a result in accordance with the best interests of all concerned; that she still does not know the answer'; she is interested in possibilities of a reconciliation.
The order denying defendant's motion reads: 'Motion denied without prejudice to renewal of motion for leave to set aside default and interlocutory judgment and file answer raising issue of whether there is or will be any issue of the marriage.'
Defendant claims the court abused its discretion in denying the motion because 1) it denied the motion and at the same time imposed terms, 2) it imposed terms which tend to deny to defendant a full and fair trial on the merits, and 3) it is an abuse of discretion on the facts. Defendant also claims she should be relieved from the unintended effect of the trial court's order barring her from any relief, and should be permitted to file at least an answer herein.
The granting or denial of a motion to vacate a default and a judgment based thereon on the ground of mistake, inadvertence, surprise or excusable neglect, rests in the sound discretion of the trial court; and the order will not be disturbed on appeal unless it clearly appears that the trial court was guilty of an abuse of discretion. All presumptions will be indulged in favor of the correctness of the order, and the burden is on the appellant to show that the court's discretion was abused. Estate of McCarthy, 23 Cal.App.2d 398, 400, 73 P.2d 914. No such showing is made in the present case. A mistake of fact is when a person understands the facts to be other than they are; a mistake of law is when a person knows the facts as they really are but has a mistaken belief as to the legal consequences of those facts. People v. Kelly, 35 Cal.App.2d 571, 574, 96 P.2d 372. Inadvertence is defined as lack of heedfulness or attentiveness, inattention, fault from negligence. Webster's New Inter. Dict., 2d Ed.; Greene v. Montana Brewing Co., 32 Mont. 102, 79 P. 693, 694. Inadvertence in the abstract is no plea on which to vacate a default. Shearman v. Jorgensen, 106 Cal. 483, 485, 39 P. 863. The 'surprise' referred to in Code Civ.Proc. § 473 is defined to be some 'condition or situation in which a party to a cause is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.' Miller v. Lee, 52 Cal.App.2d 10, 16, 125 P.2d 627, 631. The 'excusable neglect' referred to in the section is that neglect which might have been the act of a reasonably prudent person under the same circumstances. Elms v. Elms, 72 Cal.App.2d 508, 513, 164 P.2d 936. A judgment will not ordinarily be vacated at the demand of a defendant who was either grossly negligent or changed his mind after the judgment. Kromm v. Kromm, 84 Cal.App.2d 523, 529, 191 P.2d 115. To obtain relief a defendant must have acted within a reasonable time. Hewins v. Walbeck, 60 Cal.App.2d 603, 611, 141 P.2d 241. A party will not be relieved from his default unless he shows he acted in good faith and that his mistake, inadvertence, surprise or excusable neglect was the actual cause of his failure to appear.
In a matter in which an issue is tried on affidavits, the rule on appeal is that those affidavits favoring the contentions of the prevailing party establish not only the facts stated therein but also all facts which reasonably may be inferred therefrom. Wolfson v. Haddan, 105 Cal.App.2d 147, 149, 233 P.2d 145. When there is a substantial conflict in the facts presented by affidavits, the determination of the controverted facts by the trial court will not be disturbed on appeal. Deyl v. Deyl, 88 Cal.App.2d 536, 543, 199 P.2d 424.
The motion was denied without prejudice to its renewal for a limited purpose. Defendant argues that because the order was so made it imposed terms and...
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