Lee v. Offenberg

Decision Date14 August 1969
Citation275 Cal.App.2d 575,80 Cal.Rptr. 136
CourtCalifornia Court of Appeals Court of Appeals
PartiesP. LEE, Plaintiff and Appellant, v. Max OFFENBERG and Marie Offenberg, Defendants and Respondents. Civ. 32852.

Cooper & Friedlander, by Harvey G. Cooper, Los Angeles, for plaintiff and appellant.

Mike Mayo, Montebello, for defendants and respondents.

STEPHENS, Acting Presiding Justice.

Plaintiff's assignor leased certain printing equipment to defendants Dr. Max Offenberg, Marie Offenberg, and Leon J. Perales. Paragraph 20 of the written lease provided that 'if more than one Lessee is named in this Lease the liability of each shall be joint and several.' Defendants defaulted, and suit on the lease was commenced on December 22, 1965. The Offenbergs answered, but Perales did not, and his default was entered January 19, 1966. A motion for summary judgment was made as to the Offenbergs, and this was denied on May 3, 1966. Attorney Friedlander sent a request for default hearing as to Perales by letter, and this request contained the statements that:

'* * * The other two defendants, Dr. Max Offenberg and Marie Offenberg have answered our lawsuit, and we are presently proceeding against them on their guaranty. Leon J. Perales was primarily liable on this lease contract.

'We are informed that he presently has assets upon which we can partially satisfy our claim and we would like to obtain judgment now in order to proceed on execution against Mr. Perales, with leave from the Court to still proceed on the pending lawsuit against the other parties * * *.'

On June 28, 1966, attorney Blatt, who was associated with the same firm of attorneys as attorney Friedlander, appeared in Department 63 of the Los Angeles Superior Court on the default hearing to be heard before Judge Pro Tem Natoli. The default was submitted upon the same affidavits theretofore filed in support of a previous motion for summary judgment. The following colloquy between the court and Mr. Blatt took place at the June 28 hearing: '(Mr. Blatt): And we ask leave to continue proceedings against the other two defendants who have filed answers. (The Court): That will be granted.' On July 1, 1966, a minute order was filed granting judgment against Perales, but making no reference to the requested reservation.

The case against the Offenbergs was called for trial on June 28, 1967, at which time a motion to dismiss was made by the defendants. The premise of the motion was that a judgment had previously been rendered in the case against defendant Perales without reservation to proceed against the remaining defendants, and that section 579 of the Code of Civil Procedure required a reservation. 1

Being confronted with the file and the incomplete record before them, the following colloquy took place between attorney Friedlander and Judge Weisman:

'MR. FRIEDLANDER: * * * However, I would like to make a certain representation to the Court, this representation being that I sent a letter to Commissioner Natoli's attention, to his clerk, Mr. Lee Soloman, and during my discussions with Mr. Lee Solomon and Mr. Natoli, I had requested leave of the Court to proceed under Section 579 of the California Code of Civil Procedure against the Offenbergs.

'It is the normal procedure and practice in Commissioner Natoli's court that a plaintiff would not be permitted to proceed against other defendants unless the other--excuse me. The Court would not render judgment against one defendant unless the plaintiff's attorney submitted a dismissal against the other defendants.

'Now, had I been advised that the Court could not render a judgment against the other defendants if judgment was rendered against Perales, I would not have obtained a judgment against Perales, assuming that Mr. Mayo's position is correct. Therefore, in the event that the Court does take Mr. Mayo's position as being correct, I at this time would like to make a motion to set aside the default against Perales on two grounds:

'The first ground was that, one, the Commissioner was not authorized to render a judgment against Perales, and the second ground, that I was misled by the Court when I obtained this judgment against Perales, and on the third ground, that, on equitable ground, my client should not be barred from proceeding against the Offenbergs because of a mistake of a Court by the plaintiff's counsel.

'THE COURT: Well, this is a trial court. You would have to make that motion before the same court that entered the judgment. Was that Department 63?

'MR. FRIEDLANDER: That is correct, your Honor.

'THE COURT: I suggest this: We did discuss in chambers as to the possibility of entering into certain stipulations so that your client would not have to come back here, and I also suggested that you have some time to prepare any authorities that you wish on this motion.

'Do you have any stipulations that you would like to present?

'MR. FRIEDLANDER: Yes, your Honor.

'THE COURT: I will take both of your motions under submission, with the indication that if I grant Mr. Mayo's motion your motion will have to be renewed up in Department 63.

'* * *URT

'MR. FRIEDLANDER: Your Honor, one point, in the event you do rule in my favor, the trial will continue on July 25th.

'THE COURT: That is right.'

The matter was then continued to July 25, 1967 so that each side could file points and authorities on the motion to dismiss made by the defendants and ('in the event that the court does take Mr. Mayo's position as being correct') a motion by plaintiff to set aside the default against Perales (the defaulting defendant).

On July 25, the motions were argued, and the plaintiff's motion to set aside the default judgment was denied; the defendants' motion to dismiss was granted, apparently on the theory that the default judgment as signed and filed contained no reservation to proceed against the other defendants. The signed judgment states in part that 'the court then granted defendants' motion to dismiss on the grounds tht said judgment of July 1, 1966, was res judicata as to all defendants,' and judgment was ordered for defendants for costs. This judgment was filed July 28, 1967.

Following the judgment of dismissal, plaintiff, by motion duly noticed, promptly sought correction, Nunc pro tunc, of the July 1, 1966 judgment. After hearing argument an 'Order Correcting Minute Order and Judgment Nunc Pro Tunc' was signed and filed on August 24, 1967. This order and judgment corrected the July 1, 1966 judgment against the defaulting defendant by adding the following: 'It is further ordered, adjudged and decreed that a several judgment is proper and that the plaintiff is hereby granted leave to proceed against the defendants Max Offenberg and Marie Offenberg, pursuant to section 579 C.C.P.' On August 11, 1967, plaintiff filed a notice of motion for new trial and for reconsideration of the motion to dismiss, with hearing to be in Department 27 (Judge Weisman) on August 29, 1967. On the 29th, argument was had on the motions. The transcript of the July 1, 1966 hearing was referred to, and was in the file then before Judge Weisman. This transcript confirmed the representation that the court orally had reserved the right of plaintiff to proceed against the non-defaulting defendants. Also before Judge Weisman was the Nunc pro tunc order of August 24, 1967 correcting the clerical omission of the reserved right to proceed against the non-defaulting defendants. At the hearing on August 29th, the judge inadvertently thought that he had given plaintiff until July 25th 'as much time as you (plaintiff) wanted to try to set aside that default (judgment) because nothing was in the record that you (plaintiff) could proceed. So you (plaintiff) had all the time you wanted * * *' In fact, the judge had said that 'if I grant Mr. Mayo's (defendants' attorney's) motion your motion will have to be renewed up in Department 63.' 2 It is apparent that the plaintiff had not been instructed to have the default judgment corrected prior to the July 25th hearing, though good trial procedure might well have dictated it. The motions for new trial and for reconsideration of the judgment of dismissal were denied.

Plaintiff appeals from the judgment of July 25, 1967 and from the order denying his motion for reconsideration of the defendants' motion resulting in such judgment.

Skipping, for the moment, the appeal from the July 25 judgment, the plaintiff does not seriously argue that there was a valid motion for new trial before Judge Weisman on August 29. A newtrial motion would have been proper (Carney v. Simmonds, 49 Cal.2d 84, 315 P.2d 305), but plaintiff failed to comply with the statutory requirements of Code of Civil Procedure, section 659, 3 and the defects in the motion were objected to and at no time waived by defendants. Though the court purported to deny the motion for new trial, no appeal has been taken from that denial. We therefore concern ourselves solely with the denial of the motion to reconsider the order of dismissal. It is plaintiff's position that this motion is within the broad provisions for relief covered by Code of Civil Procedure, section 473. We concur with plaintiff, for the last paragraph of section 473 states: 'The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.' Taliaferro v. Taliaferro, 217 Cal.App.2d 216, 31 Cal.Rptr. 774 is adequate authority that Code of Civil Procedure, section 473 is to be liberally construed to the end that cases may be...

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