Kooper v. King

• Decision Date: 15 September 1961
• Citation: 15 Cal.Rptr. 848,195 Cal.App.2d 621
• Court: California Court of Appeals Court of Appeals
• Parties: Karel KOOPER, Individually, and Karel Kooper and Curtis C. Maybach, a copartnership, Plaintiffs and Appellants, v. M. J. KING et al., Defendants, M. J. King, Respondent. P. Vincent STUPPI, Janice Rowe Guerin, and P. Vincent Stuppi and Birgit Anderson, as coexecutors of the Estate of Otto Anderson, Deceased, Cross-Complainants, v. M. J. KING and B. I. Lusk, Cross-Defendants. Civ. 10132.

Page 848

15 Cal.Rptr. 848

195 Cal.App.2d 621

Karel KOOPER, Individually, and Karel Kooper and Curtis C. Maybach, a copartnership, Plaintiffs and Appellants, v. M. J. KING et al., Defendants, M. J. King, Respondent.

P. Vincent STUPPI, Janice Rowe Guerin, and P. Vincent Stuppi and Birgit Anderson, as coexecutors of the Estate of Otto Anderson, Deceased, Cross-Complainants, v. M. J. KING and B. I. Lusk, Cross-Defendants.

Civ. 10132.

District Court of Appeal, Third District, California.

Sept. 15, 1961.

Clarence H. Pease, Sacramento, for appellants.

Lloyd J. Cosgrove, San Francisco, Herbert Chamberlin, San Francisco, of counsel, for respondent.

WARNE, Justice pro tem.

This is an appeal from an order granting a motion to vacate and set aside the default and default judgment entered by the clerk of the court against the defendant M. J. King.

The complaint, in substance, alleges that plaintiffs and the defendants, King, Lusk, Anderson, Stuppi and Guerin, entered into a written contract whereby plaintiffs agreed to perform planning and architectural services for the defendants. The written agreement is attached to the complaint and made a part thereof by reference. Paragraph (8) of the agreement provided that the defendants might terminate the agreement at any time upon the payment of $4,000, less amounts paid for preliminary sketches furnished by the plaintiffs. Plaintiffs sought recovery of the $4,000, plus interest from July 1, 1959, on the ground that the defendants had terminated the agreement but refused to pay any part of the $4,000, although plaintiffs had allegedly fully performed their part of the contract.

The defendant Lusk filed an answer to the complaint January 11, 1960. Stuppi, Guerin and the executors of the estate of Anderson answered on March 17, 1960, and cross-complained against Lusk and King. On March 21, 1960, the clerk of the court entered a default judgment in favor of appellants against the respondent King for $4,000, plus interest and costs. Subsequently, on May 13, 1960, respondent moved to vacate the default judgment. The motion was granted vacating the default judgment and granting King leave to file his answer to the complaint. Necessarily, the effect of the order was to vacate the default as well as the default judgment.

The appellants contend that there was no showing in this case of excusable inadvertence and neglect, and therefore respondent failed to make a sufficient showing under the provisions of section 473 of the Code of Civil Procedure. They assign the granting of the motion as error.

It appears that respondent King was served with summons on January 14, 1960, and default was entered in accordance with section 585, subdivision 1, of the Code of Civil Procedure. The default judgment was entered by the clerk on March 21, 1960. Respondent's motion and notice of motion to vacate the default judgment and grant him leave to answer was filed on May 13, 1960. The motion and notice were accompanied by his proposed verified answer and affidavit for relief. It appears in his affidavit that after he was served with summons he 'discussed with his co-defendant, B. I. Lusk, who resides in Sacramento, California, the merits of plaintiffs' complaint and thereafter placed the said summons and complaint in and among his general files but inadvertently neglected to make a notation thereof as to the fact of his service and for attention to the matter by his clerical staff and counsel, * * *.' Other than a copy of his verified answer, from which it appears that he had a meritorious defense to the action, no further evidence or affidavits were offered in support of the motion. The motion was made under the provisions of section 473 of the Code of Civil Procedure on the ground of inadvertence and excusable neglect.

In Miller v. F. M. W. Drilling Co., 140 Cal.App.2d 728, 731, 295 P.2d 412, 414, the court said: '* * * It is well settled that the granting of relief of this nature is a matter in which the trial court has a wide discretion, that this discretion should be exercised in the interest of seeing that justice is done, that this is particularly true where a prompt application for relief is made, and the court's action will be disturbed only where an abuse of discretion clearly appears. [Citing cases.]'

The rules were recently summarized in Reed v. Williamson, 185 Cal.App.2d 244, 248-249, 8 Cal.Rptr. 39, 42:

'Plaintiff asserts the court abused its discretion in granting the motion. Code of Civil Procedure, § 473, providing that a trial court may relieve a party from 'a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect,' is remedial in its nature and is to be liberally construed. Friedrich v. Roland, 95 Cal.App.2d 543 552, 213 P.2d 423, 428. The policy of the law is to have every litigated cause tried on its merits; and it looks with disfavor on a party who, regardless of the merits of his cause, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary. (29 Cal.Jur.2d § 152, p. 95.) Reviewing courts have always looked with favor on orders excusing defaults and permitting controversies to be heard on their merits. Such orders are rarely reversed, and never unless it clearly appears that there has been a plain abuse of discretion. Jones v. Title Guaranty, etc., Co., 178 Cal. 375, 376-377, 173 P. 586. Even in a case where the showing under section 473 of the Code of Civil Procedure is not strong, or where there is any doubt as to the setting aside of a default, such doubt should be resolved in favor of the application. Garcia v. Garcia, 105 Cal.App.2d 289, 291, 233 P.2d 23. 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.

'In Baratti v. Baratti, 109 Cal.App.2d 917, at page 921, 242 P.2d 22, at page 24, we said:

"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. * * * The 'excusable neglect' referred to in the section [Code Civ.Proc., sec. 473] 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.'

'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. * * *'

However, it was also said in Gorman v. California Transit Co., 199 Cal. 246, at page 248, 248 P. 923, at page 924: '[T]he discretion thus to be exercised by the trial court is not capricious or arbitrary, but is an impartial discretion which must be guided and controlled in its exercise by fixed legal principles, and it should, therefore, appear that something more than mere inadvertence or neglect without reasonable excuse or justification existed, and that the inadvertence or neglect in question was not the result of mere forgetfulness on the part of the person of official charged with the duty of responding to the legal process in due time, but that such inadvertence or neglect was based upon other circumstances which would suffice to render the same excusable. * * *'

This court held that neglect was excusable where the attorney was confused as to the trial date, was appearing in a bankruptcy hearing at that time, and was informed by the trial judge that the case would be reset; but default was taken without further communication. Slack v. Murray, 175 Cal.App.2d 558, 346 P.2d 826. In Bernards v. Grey, 97 Cal.App.2d 679, 218 P.2d 597, we held that the trial court did not err in setting aside a default where the summons was served upon the defendant in court, while he was talking to his attorney, and who placed the papers in his brief case while unaware of their true nature. In Gorman v. California Transit Co., supra, the Supreme Court held that the neglect was excusable where a file containing the complaint and summons was mistakenly removed from a traffic manager's desk by another employee and thus the traffic manager's attention was withdrawn amid the engrossing details of his department.

However, what is excusable neglect depends upon the facts of each case. Bernards v. Grey, supra. The affidavit on file herein shows that the defendant King placed the summons and complaint in his general file and inadvertently failed to make a notation of it. There is no indication that King did not understand the true nature of the papers; rather he called his business associate regarding the matter. There is no indication that the...