City Bank of San Diego v. Ramage

CourtCalifornia Court of Appeals
Writing for the CourtWHELAN; GERALD BROWN, P.J., and COUGHLIN
Citation266 Cal.App.2d 570,72 Cal.Rptr. 273
PartiesCITY BANK OF SAN DIEGO, Plaintiff, Appellant and Respondent, v. Gelert R. RAMAGE, Jr., et al., Defendants, Appellants and Respondents. Civ. 8536, 8823.
Decision Date16 October 1968

Page 273

72 Cal.Rptr. 273
266 Cal.App.2d 570
CITY BANK OF SAN DIEGO, Plaintiff, Appellant and Respondent,
v.
Gelert R. RAMAGE, Jr., et al., Defendants, Appellants and Respondents.
Civ. 8536, 8823.
Court of Appeal, Fourth District, Division 1, California.
Oct. 16, 1968.
Rehearing Denied Nov. 8, 1968.
Hearing Denied Dec. 11, 1968.

Page 276

[266 Cal.App.2d 573] James C. Monroe, El Monte, for defendants, appellants and respondents.

Procopio, Cory, Hargreaves & Savitch, San Diego, for plaintiff, appellant and respondent.

OPINION

WHELAN, Justice.

Defendants Gelert R. Ramage, Jr. (Ramage) and Nancy Ramage (Mrs. Ramage) appeal from a judgment taken against them by default on August 19, 1966, which in part decreed the foreclosure of a trust deed (August 19 judgment) and from a judgment dated March 1, 1967 (March 1 judgment), fixing the amount of a deficiency judgment in a hearing under Code of Civil Procedure, section 726, following the foreclosure sale.

[266 Cal.App.2d 574] Defendant Lowell Orgill Kirk (Kirk) appeals from the August 19 judgment which awarded a recovery against him.

Plaintiff City Bank of San Diego (Bank) appeals from the March 1 judgment.

Ramage and Mrs. Ramage base their appeal upon the following grounds:

1. Error of the court in denying their motion to set aside their defaults.

2. Error of the court in the admission of evidence in the hearing leading up to the default judgment, and, as result thereof, in basing is judgment on insufficient evidence.

3. Error of the court in decreeing a foreclosure and in the same judgment of August 19 awarding a personal judgment against them for the amount secured by the trust deed foreclosed.

4. Error of the court in the March 1 judgment in fixing the amount necessary to redeem from the foreclosure sale; and in fixing the amount of the deficiency judgment.

5. Error of the court in excluding evidence in the hearing leading up to the March 1 judgment.

Kirk's appeal also claims error in the denial of the motion to set aside the defaults and in awarding two kinds of relief in the August 19 judgment, i.e., a personal judgment, and a decree of foreclosure.

Bank's appeal is based upon alleged insufficiency of the evidence as to the amount of the deficiency fixed in the March 1 judgment.

PROCEDURAL BACKGROUND

Bank on June 4, 1965 filed its action against Ramage and Mrs. Ramage. It alleged that it had lent $150,000 to the Ramages for which they gave a note secured by trust deed on San Diego County property; that the loan had been made upon certain false representations made by the Ramages knowingly with intent to induce action; the prayer was for rescission but with retention of the security of the trust deed to protect Bank against intervening claims against the Ramages and the real property.

The Ramages responded in a joint answer prepared by their prsent counsel, who has represented them throughout, and also has represented Kirk since his first appearance in the action.

The answer of the Ramages to the original complaint admitted 'they borrowed the sum of One Hundred Fifty Thousand

Page 277

[266 Cal.App.2d 575] Dollars'; denied the execution of the note and trust deed.

Bank filed an amended complaint on January 4, 1966, joining Kirk and others as additional defendants in two of the three causes of action. The first cause of action for rescission iterated the allegations of fraud against the Ramages and alleged Kirk to have been a party to the fraud; the second cause of action was in implied Assumpsit for the amount allegedly paid out to the Ramages, Kirk, and others, as the result of fraud and deceit practised upon plaintiff, the exact nature of which was not alleged, nor were the allegations of specific fraud found in the first cause of action incorporated in the second; the third cause of action was to foreclose the trust deed for amounts provided for in the note, which included attorney's fees; the relief sought under the third cause of action was stated to be as an alternative to rescission.

The amended complaint was served on the Ramages on January 4, 1966 by mailing it to their attorney of record.

Kirk was served personally with the amended complaint in Orange County on January 7, 1966.

The defaults of the Ramages and Kirk were entered on March 25, 1966. Notice to that effect dated March 28 was mailed to Monroe.

Notice of motion to vacate defaults as to the Ramages and Kirk was filed May 6. It was accompanied by a proposed answer bearing the typewritten date April 28, 1966.

The proposed answer among other matters denied the Ramages had borrowed $150,000 as alleged in the amended complaint.

The motion to set aside the defaults was heard and denied on May 26, 1966.

A trial by default was had at which 18 documents were received in evidence, and two witnesses testified. Judgment was rendered in favor of Bank on August 19, 1966.

The judgment contained a finding that the note and deed of trust had been accepted by Bank as the result of fraud practised by the Ramages and Kirk; it then decreed the foreclosure of the trust deed for the amounts adjudged to be due, including $12,500 attorney's fees as provided in the note and trust deed; the total amount, in satisfaction of which sale of the property was decreed, was $175,122.22; the Ramages were adjudged personally liable therefor.

The proceeds of the sale were ordered to be applied in payment of the various items of the judgment in the following [266 Cal.App.2d 576] order: (1) interest accrued since judgment; (2) costs of suit; (3) attorney's fees; (4) trustee's fees; thereafter on interest and principal.

There was a provision as follows:

'The amount of the judgment on plaintiff's second cause of action shall be credited in the same amount and to the same extent that said interest after judgment and costs of suit of $417.00, and interest of $20,702.00, and principal of $140,005.48, are credited by reason of any application of sale proceeds.'

The judgment next provided that in the second cause of action of the amended complaint Bank recover from the Ramages, Kirk and another defendant the sum of $140,005.48 with interest and costs.

The judgment then provided 'that the amount of any recovery on the judgment on plaintiff's second cause of action shall constitute a credit in a like amount on the judgment on plaintiff's third cause of action.

MOTION TO SET ASIDE DEFAULTS

The declarations under penalty of perjury in support of and in opposition to the motion to set aside default show the following:

On February 15, 1966, Bank's attorney, Olson, wrote the Ramages' attorney, Monroe, calling the latter's attention to the fact that an answer was overdue. No response was made to the letter.

Page 278

On February 28, Olson again wrote Monroe about the overdue answer, stating that the defaults of the Ramages would be taken unless they responded to the amended complaint on or before March 7.

On April 4, 1966, Monroe signed a letter to Olson in which he said, in part:

'Needless to say, I was quite shocked to find your Notice of Entry of Default upon my return to the office. My distinct recollection was that in response to a request by me, occasioned by the prevalent flu in the office, the time was extended.

'Thereupon, I dictated the Answer and had the verification signed and thereafter retyped and apparently my then secretary failed to file the same and send it on to you.

'During the last week I have been almost continuously absent from the office and much of the time from the state.

'Accordingly, request is hereby made that the default be set aside and that you raise no objection to our filing the enclosed Answer. * * *

266 Cal.App.2d 577] 'As you well know, both Dr. and Mrs. Ramage have denied under oath that they have affixed their signatures to the note or to the trust deed * * *.'

The 'enclosed answer' referred to bore the typewritten date 'April 4, 1966.'

Monroe's declaration under penalty of perjury dated April 29, 1966, accompanied the notice of motion to set aside the defaults. In part it stated:

'That during the early part of March, 1966, your declarant was absent from his office on many occasions by reason of the flu, which was epidemic in propertions in this area at that time, and also was extremely handicapped in that his secretarial and receptionist help would be absent also and that even when your declarant was present, he had an exceptionally heavy case load and was totally unable to attend to matters within the office during this period being obliged to conduct what court appearances procedurally. (sic)

'Additionally, during the period of time covered between the date of notice of the entry of default, to wit: the 28th March, 1966, and the time when your declarant was absent from the office by reason of illness, your declarant was engaged in trial and in the conduct of extensive negotiations in the city of Denver, State of Colorado, and was absent from the state by reason of such negotiation of business.

'That upon receipt of notice that a default had been entered your declarant contacted the said GERALD E. OLSON and expressed shock and concern in view of the courtesies extended and advised the said GERALD E. OLSON that, in a conversation with him on the telephone, sometime between the 28th day of February, 1966, and the 4th or 5th day of March, 1966, in which your declarant advised the said GERALD E. OLSON that illness has decimated his office; that he had received and understood that he had received an extension of time in an amount such as would be necessary in which to file an answer on behalf of the defendants Ramage and on behalf of the new defendant, LOWELL KIRK; and that it was upon reliance of this that an answer had not been immediately filed.'

As noted, the proposed answer accompanying the notice of motion bore the typewritten date 'April 28, 1966.' In substance it is the same as the answer dated 'April 4, 1966' which accompanied Monroe's letter of that date,...

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28 practice notes
  • Lint v. Chisholm
    • United States
    • California Court of Appeals
    • 17 Junio 1981
    ...of a clear showing of abuse ... the exercise of that discretion will not be disturbed on appeal." (City Bank of San Diego v. Ramage, 266 Cal.App.2d 570, 579, 72 Cal.Rptr. 273; see Outdoor Imports, Inc. v. Stanoff, 7 Cal.App.3d 518, 522, 86 Cal.Rptr. 593; Weitz v. [121 Cal.App.3d 620] Yankos......
  • Strathvale Holdings v. E.B.H., No. B169603.
    • United States
    • California Court of Appeals
    • 26 Enero 2005
    ...on appeal."' (Lint v. Chisholm (1981) 121 Cal.App.3d 615, 619-620 [177 Cal.Rptr. 314], quoting City Bank of San Diego v. Ramage (1968) 266 Cal.App.2d 570, 579 [72 Cal.Rptr. 273].) The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. (Nestle ......
  • Hirsch v. National Van Lines, Inc., No. 16176-PR
    • United States
    • Supreme Court of Arizona
    • 12 Mayo 1983
    ...subject matter jurisdiction. Industrial Commission v. Parise, 13 Ariz.App. 522, 478 P.2d 137 (1970); City Bank of San Diego v. Ramage, 266 Cal.App.2d 570, 72 Cal.Rptr. 273 (1968); Dennison v. Doreen, 281 Or. 89, 573 P.2d 1242 (1978); Belue v. Belue, 276 S.C. 120, 276 S.E.2d 295 (1981); 6 Mo......
  • Porter v. Smith, No. S-89-685
    • United States
    • Supreme Court of Nebraska
    • 26 Junio 1992
    ...A.2d 581 (1961) (election of remedies is an affirmative defense which must be pleaded and proved); City Bank of San Diego v. Ramage, 266 Cal.App.2d 570, 72 Cal.Rptr. 273 (1968) (doctrine of election of remedies, being a form of estoppel, is an affirmative defense that ordinarily must be spe......
  • Request a trial to view additional results
28 cases
  • Lint v. Chisholm
    • United States
    • California Court of Appeals
    • 17 Junio 1981
    ...of a clear showing of abuse ... the exercise of that discretion will not be disturbed on appeal." (City Bank of San Diego v. Ramage, 266 Cal.App.2d 570, 579, 72 Cal.Rptr. 273; see Outdoor Imports, Inc. v. Stanoff, 7 Cal.App.3d 518, 522, 86 Cal.Rptr. 593; Weitz v. [121 Cal.App.3d 620] Yankos......
  • Strathvale Holdings v. E.B.H., No. B169603.
    • United States
    • California Court of Appeals
    • 26 Enero 2005
    ...on appeal."' (Lint v. Chisholm (1981) 121 Cal.App.3d 615, 619-620 [177 Cal.Rptr. 314], quoting City Bank of San Diego v. Ramage (1968) 266 Cal.App.2d 570, 579 [72 Cal.Rptr. 273].) The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. (Nestle ......
  • Hirsch v. National Van Lines, Inc., No. 16176-PR
    • United States
    • Supreme Court of Arizona
    • 12 Mayo 1983
    ...subject matter jurisdiction. Industrial Commission v. Parise, 13 Ariz.App. 522, 478 P.2d 137 (1970); City Bank of San Diego v. Ramage, 266 Cal.App.2d 570, 72 Cal.Rptr. 273 (1968); Dennison v. Doreen, 281 Or. 89, 573 P.2d 1242 (1978); Belue v. Belue, 276 S.C. 120, 276 S.E.2d 295 (1981); 6 Mo......
  • Porter v. Smith, No. S-89-685
    • United States
    • Supreme Court of Nebraska
    • 26 Junio 1992
    ...A.2d 581 (1961) (election of remedies is an affirmative defense which must be pleaded and proved); City Bank of San Diego v. Ramage, 266 Cal.App.2d 570, 72 Cal.Rptr. 273 (1968) (doctrine of election of remedies, being a form of estoppel, is an affirmative defense that ordinarily must be spe......
  • Request a trial to view additional results

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