Goya v. P. Enterprises

• Decision Date: 27 December 1978
• Citation: 87 Cal.App.3d 886,151 Cal.Rptr. 258
• Parties: Lydia GOYA, Plaintiff and Appellant, v. P. E. R. U. ENTERPRISES, La Brea Inn, Hollywood Press, Paul C. Picard, Valentin Vera, and Ketty Vera, Defendants and Respondents. Civ. 53833.
• Court: California Court of Appeals Court of Appeals

Page 258

151 Cal.Rptr. 258

87 Cal.App.3d 886

Lydia GOYA, Plaintiff and Appellant, v. P. E. R. U. ENTERPRISES, La Brea Inn, Hollywood Press, Paul C. Picard, Valentin Vera, and Ketty Vera, Defendants and Respondents.

Civ. 53833.

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

Dec. 27, 1978.

Hearing Denied Feb. 21, 1979.

Richard L. Rosett, Los Angeles, for plaintiff and appellant.

Philip A. Center, Hollywood, for defendants and respondents.

LILLIE, Acting Presiding Justice.

On July 14, 1974, Lydia Goya filed a four count complaint naming P.E.R.U. Enterprises, La Brea Inn, Hollywood Press and 20 Does as defendants, alleging unauthorized publication of her photograph in an ad for La Brea Inn and conversion. She prays for $100,000 general damages and $1,000,000 punitive damages. On October 9, 1974, plaintiff amended her complaint to substitute in the place of Does I through IV respondents herein, Paul C. Picard, Valentin Vera and Ketty Vera, and Kenny MacKenzie. Various services on these defendants were alleged to have been thereafter made by plaintiff's counsel. No responsive pleading having been filed, plaintiff, on March 4, 1976, 17 months after amending her complaint, filed request to enter default against all defendants except MacKenzie. On November 4, 1976, judgment by default was entered against them for $18,000 $12,000 compensatory damages and $6,000 exemplary damages and costs and disbursements. Plaintiff did not give notice of entry of said judgment to defendants until seven months later, on June 14, 1977.

On October 20, 1977, Picard, individually and doing business as P.E.R.U. Enterprises and Hollywood Press, and on November 7, 1977, the Veras individually and doing business as La Brea Inn, filed notice of motion to set aside default and to vacate default judgment, together with supporting declarations and points and authorities. Opposing declarations and request for sanctions were filed by plaintiff. Thereafter on December 9, 1977, the court made its order vacating the default and default judgment entered thereon. Plaintiff appeals from said order.

Appellant contends that defendants failed to meet their burden of proving by a preponderance of the evidence that they did not receive actual notice of the lawsuit, and failed to adequately show a defense on the merits; and that she has been seriously prejudiced by the order which to be "just" should have imposed sanctions.

It appears from defendants' points and authorities that relief was sought under sections 473 and 473.5, Code of Civil Procedure. Although situations appropriate for relief under section 473.5 may also support a motion under section 473, the trial court granted the same under section 473.5, finding "That this motion was made within the time specified by CCP 473.5(a), and lack of actual notice was not caused by an avoidance of service or inexcusable neglect."

Section 473.5, Code of Civil Procedure ¹ is the successor statute to former section 473a. It permits the court to set aside a default or default judgment against a defendant and allow him to defend the action on its merits if (1) he received through no inexcusable fault of his own, no actual notice of the action in time to appear and defend, and had not made a general appearance; (2) a default or default judgment has been entered against him by the court; (3) he acted with reasonable diligence in serving and filing the notice of motion to set aside the default or default judgment; and (4) he has a meritorious defense. (Comment (to section 473.5) Judicial Council.)

When as here an issue is tried on affidavits the rule of appellate review is that those favoring the contentions of the prevailing party establish not only the facts stated therein but also all facts which reasonably may be inferred therefrom; and when there is substantial conflict in the facts presented by way of affidavits, the determination of the controverted facts by the trial court will not be disturbed on appeal. This rule applies to orders made on motions for relief from default. (Lynch v. Spilman, 67 Cal.2d 251, 259, 62 Cal.Rptr. 12, 431 P.2d 636.)

With the foregoing in mind, we have viewed defendants' declarations and conclude that they support the implied finding that if service of summons and complaint was made on Picard and the Veras, it did not result in actual notice of the action to them in time to defend. Opposing declarations alleged service on Picard at his place of business, on November 13, 1974, and February 16, 1976, by Mr. Rosett, attorney for plaintiff, by handing to Mario Martinez, who identified himself as an assistant to Picard, summons and complaint and amended complaint, respectively, and by thereafter mailing copies thereof to Picard; and personal service on the Veras at their residence on November 10, 1974, and February 16, 1976, of summons and complaint and amended complaint, respectively, by Rosett who explained to them about the lawsuit. The supporting declarations establish that Picard ² was never personally served with summons and complaint or amended complaint either as an individual or on behalf of any fictitious entities, never received any documents relating to the lawsuit, never received any such papers from Martinez and never knew of the existence of the lawsuit until July 1977, and that he had no actual notice in time to defend the action; and that although served with copies of summons and complaint and amended complaint the Veras ³ were unaware of the nature of the documents and said documents did not result in actual notice to the Veras in time to defend the action individually and on behalf of La Brea Inn.

If the trial court believed the supporting declarations, and obviously it did, then defendants met their burden of proof. The declarations not only support the implied finding that service of summons and complaint and amended complaint did not result in actual notice to defendants in time to defend the action, but the express finding that their motion was made within the period of time specified by section 473.5, subdivision (a), and defendants' lack of actual notice was not caused by avoidance of service or inexcusable neglect.

Four months and six days elapsed between the time defendants received notice of entry of default judgment (June 14, 1977) and the filing of notice of motion to vacate default and set aside default judgment (October 20, 1977). Appellant argues that this delay does not fall within the "reasonable time" requirement. But section 473.5, subdivision (a) provides that the notice of motion shall be served and filed within "a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him; or (ii) 180 days after service on him of a written notice that such default or default judgment has been entered."; and under the circumstances of this case we will not disturb the trial court's finding that the motion was made "within the time specified by CCP 473.5(a)."

Also without substance is appellant's contention that the declarations of merits failed to show a different result will be reached if the cause is tried because defendants did not deny using her photograph or state that they had permission to use it. The declarations of merits of defendants and their counsel are of the kind customarily used on such motions. But in addition thereto the proposed answers filed by defendants with notices of motion to set aside defaults and default judgment were before the trial court. Although appellant did not see fit to include these proposed pleadings in the record before us, we have examined them in the superior court file pursuant to oral stipulation of the parties at oral argument in this court. The proposed answers contain the denials, albeit on information and belief, appellant asserts are missing in the declarations of merits. Moreover, we note that in his declaration, Kenneth MacKenzie, manager of the La Brea Inn asserts that he is personally responsible for advertising and at no time authorized publication of the ad in question, was unaware that a photograph of plaintiff had appeared therein until the summer of 1977 and never authorized the use of plaintiff's likeness. On oral argument respondents' counsel stated that while the denials by the Veras and La Brea Inn stand, he was willing to concede as to Picard only to the unauthorized use of plaintiff's photograph but submitted that...