Fallon & Co. v. U.S. Overseas Airlines, Inc.
| Decision Date | 07 August 1961 |
| Citation | 15 Cal.Rptr. 354,194 Cal.App.2d 546 |
| Court | California Court of Appeals Court of Appeals |
| Parties | FALLON AND COMPANY, a corporation, Plaintiff and Respondent, v. UNITED STATES OVERSEAS AIRLINES, INC., a corporation, Defendant and Appellant. Civ. 24955. |
Crooks & Gunter and John E. Crooks, Long Beach, for appellant.
Axelrad & Sevilla and Stanley Sevilla, Los Angeles, for respondent.
Appeal from an order denying a motion to set aside a default, the entry of default, and the judgment entered pursuant thereto.
The complaint was filed August 20, 1959. Summons and complaint were served on a vice-president of defendant on September 29, 1959 in Oakland, California. Defendant having failed to appear in the action, the clerk on November 3, 1959, at the request of counsel for plaintiff, entered the default of defendant. The judgment appealed from is not in the clerk's transcript. Inasmuch as the parties agree that a judgment was entered, we have augmented the record to include the superior court file. Rule 12, Rules on Appeal. Judgment was entered by the clerk on November 18, 1959.
On April 26, 1960 defendant moved to set aside 'the default, and the entry of default, entered herein on November 3, 1959, and the judgment by default, entered herein on November 18, 1959' on the grounds of mistake, inadvertence, and excusable neglect on the part of of defendant and its counsel. The motion was denied. Defendant appeals.
Affidavits and declarations were filed in support of and against the motion. There is little conflict in them.
On July 7, 1959 plaintiff's attorney wrote defendant demanding payment of the claimed indebtedness and advising that if it was not paid suit would be filed. Defendant did not answer the letter. There were declarations to the effect that defendant owed plaintiff the amount sued for.
A short time before the action was fuled Mr. Donahue, defenant's advertising advisor, anticipating a claim by plaintiff, retained counsel in Santa Monica to handle whatever action arose, and left with him a 'voluminous file' on the matter which he assumed contained everything the attorney might need to answer a complaint. About a week after September 29, 1959 the president of defendant delegated to Mr. Donahue the task of consulting the attorney whom Mr. Donahue had retained 'to begin the defense to the suit,' and he presumed all necessary steps were taken to do so. Sometime after the summons and complaint were served, Mr. Donahue contacted the president of plaintiff 'to protest its merits and was assured by him that 'it would be settled someway." About October 25, 1959 he learned from the attorney that the complaint had been forwarded to him by the vice-president of defendant some 18 days previously. The attorney told him he 'had only a 'couple of more weeks' to get to his office to prepare an answer to the complaint.' Their 'schedules would not coincide to permit an appointment until on or about November 3, 1959, at which time in [his] presence counsel telephoned the attorneys for plaintiff to discuss the case for the first time, only to be advised by them that a default had already been taken.'
About 'the middle of November, 1959' the president of defendant was informed a default had been taken. Shortly thereafter he contacted another attorney. The attorney who appeared for defendant on the motion filed a declaration of merits and stated he was contacted by defendant shortly after the judgment was entered on November 18, 1959; since that time he had been continually negotiating with plaintiff's attorneys in an effort to compromise the matter; his last contact was on April 22, 1960; on that date it became apparent the parties could not come to any agreement.
About October 29, 1959 plaintiff's attorney informed plaintiff's president that he had heard nothing from anyone concerning the complaint and explained plaintiff's right to request an entry of default. Plaintiff's president told him to file a request for entry of default immediately. On October 30, 1959 he filed the original summons with affidavit of service and a request for entry of default. Shortly thereafter he filed a proposed form of judgment. Sometime in the first three weeks of November 1959 he received a telephone call from a 'person who identified himself as an attorney with offices in Santa Monica.' The caller stated he was attorney for defendant and that he had just received a copy of the complaint. He told the caller he had already filed a request for entry of default; that 'someone had been very negligent, because the complaint had been served on the defendant's vice president more than a month previously'; he 'doubted that plaintiff would consent to any stipulation to set aside such default.' The caller replied that 'he did not know the complaint had been served so long ago, and that he would confer with his client about the matter.' He never heard again from that attorney. Sometime later he received a call from the attorney who appeared for defendant on the motion and 'had a number of unsuccessful conversations and letters on the subject of settlement of [his] client's judgment.'
No affidavit or declaration was filed by the unidentified attorney in Santa Monica to whom the 'voluminous file' and the complaint were delivered.
An application for relief from a judgment taken against a party through mistake, inadvertence, or excusable neglect is addressed to the discretion of the trial court, and its action will be sustained unless the discretion is palpably and manifestly abused. 4 Cal.Jur.2d 481, § 601.
There is no showing of an abuse of discretion in the denial of the motion. Defendant's president, vice-president, advertising advisor, and attorney were each well aware of the pendency of the action and of the necessity of answering the complaint. The advertising advisor had even anticipated the action and had delivered a 'voluminous file' to an attorney before the action was filed. Except for retaining an attorney, defendant evinced almost a complete indifference to the litigation. Neither its president nor its vice-president showed any diligence. Defendant's advertising advisor...
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Brown v. Superior Court In and For Sacramento County
...stated, the court sustained the clerk's entry of a default judgment on the account stated. (Fallon & Co. v. United States Overseas Airlines, Inc., 194 Cal.App.2d 546, 551, 15 Cal.Rptr. 354; see comment in Diamond Nat. Corp. v. Golden Empire Builders, Inc., supra, 213 Cal.App.2d at p. 289, 2......
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Robinson v. Early
...of all of the allegations in each cause of action. (Hunt v. City of San Francisco, 11 Cal. 250; Fallon and Co. v. United States Overseas Airlines, Inc., 194 Cal.App.2d 546, 15 Cal.Rptr. 354; Fitzgerald v. Herzer, 78 Cal.App.2d 127, 177 P.2d 364.) Thus, plaintiff contends that his judgment i......
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A & B Metal Products v. Macarthur Properties, Inc.
...596. See also Schwartz v. Smookler, supra, 202 Cal.App.2d 76, 81--83, 20 Cal.Rptr. 507; and Fallon & Co. v. United States Overseas Airlines, Inc. (1961) 194 Cal.App.2d 546, 550, 15 Cal.Rptr. 354.) On this record, and in support of the judgment and order of the trial court, it may be conclud......
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Liberty Loan Corp. of North Park v. Petersen
...585(1), it has been held the clerk can enter a judgment in an action on an account stated (Fallon & Co. v. United States Overseas Airlines, Inc., 194 Cal.App.2d 546, 551--552, 15 Cal.Rptr. 354), and on an open book account (Diamond Nat. Corp. v. Golden Empire Builders, Inc., 213 Cal.App.2d ......