Luz v. Lopes

CourtUnited States State Supreme Court (California)
Writing for the CourtPETERS; GIBSON
Citation55 Cal.2d 54,10 Cal.Rptr. 161,358 P.2d 289
Parties, 358 P.2d 289 Arthur LUZ et al., Respondents, v. Ralph LOPES et al., Appellants. S. F. 19942.
Decision Date22 December 1960

Page 161

10 Cal.Rptr. 161
55 Cal.2d 54, 358 P.2d 289
Arthur LUZ et al., Respondents,
v.
Ralph LOPES et al., Appellants.
S. F. 19942.
Supreme Court of California, In bank.
Dec. 22, 1960.
Rehearing Denied Jan. 18, 1961.

Page 162

[358 P.2d 290] [55 Cal.2d 56] Reeser, Farrow, Barton & Barton and Babette B. Barton, Oakland, for appellants.

Edward M. Fellows, Palo Alto, and Lawrence T. Sutton, San Jose, for respondents.

PETERS, Justice.

On January 4, 1956, plaintiffs Arthur Luz and Lillian Luz, his wife, entered into a written agreement with defendants Ralph Lopes and Vern Lopes, his wife, whereby defendants agreed to purchase from plaintiffs certain unimproved real property in San Jose. The purchase price was $13,000, and no down payment was made. The purchase price was to be payable in monthly installments of $100 including principal and interest at 6 per cent, with the first payment due on February 15, 1956. The agreement provided, among other things, that time was of the essence; that the buyers were to pay all taxes and assessments from the date of the agreement; and that, upon failure of the buyers to comply with the conditions and covenants of the contract or to make payments when due, the sellers would be entitled to retain all amounts already paid as consideration, and would thereupon be released from the duty to convey the property.

Defendants entered into possession and, on February 15, 1956, made their first monthly payment. Their only other performance under the written agreement was to pay a portion of the taxes due for 1956. During their occupancy of the [55 Cal.2d 57] premises, defendants constructed a building on the property, which was valued at somewhere between $4,000 and $7,000. 1

On July 26 and 29, 1957, notices of termination and cancellation of the contract were served on defendants. On September 11, 1957, a complaint was filed and on September 17, 1957, it was served on defendant Ralph Lopes, who immediately proposed a settlement.

On September 20, 1957, plaintiffs' attorney wrote to defendant Ralph Lopes to the effect that the latter's offer of settlement was acceptable. The attorney stated that under the settlement it was understood that defendants would immediately clear the lien of one Bressani against the property; that defendants would pay $500 per month until the arrearages were paid in full, commencing October 15, 1957, and thereafter resume the $100 monthly payments required by the contract; and that defendants would immediately pay attorney's fees of $150. The letter concluded by stating that, 'In the event you fail to comply with the avove, we will proceed against you for the relief

Page 163

[358 P.2d 291] demanded in our complaint served upon you September 17, 1957.'

The defendants failed to make the $500 payment due Cotober 15, 1957, and on October 21, 1957, plaintiffs' attorney wrote the defendants, informing them that, 'You are hereby advised to file an answer to our complaint * * * within ten (10) days from the date hereof, otherwise we will proceed on our legal remedies.'

On November 11, 1957, defendant Ralph Lopes, in a letter to plaintiffs' attorney, apologized for his failure to make the October 15, 1957, payment, declared that he was selling the property and had one offer for.$19,000, but thought he could get at least $22,000. He also wrote: 'Please bear with me just a little longer and I will have the property sold so I can realize a little out of my improvements. Mr. Luz has been very patience (sic), and I hope this meets with your approval, please work with me, and the least I can do is pay all the fees involved so far, I will keep you informed every week as to what is (sic) happened.'

On November 14, 1957, plaintiffs' attorney replied in part, as follows, 'You are hereby advised on behalf of Mr. Luz [55 Cal.2d 58] that we cannot cooperate any further with you. The complaint was served upon you on September 17, 1957, and you have failed to follow out the conditions of settlement set forth in my letter of September 20, 1957. On October 21, 1957 you were advised that we would look to our legal remedies and such will now be done.'

On November 16, 1957, plaintiffs' attorney served a copy of the complaint and summons on Mrs. Lopes and informed her that the complaint was a copy of the one served on her husband on September 17, 1957, and that the plaintiffs would seek relief against her and her husband.

No answer was filed by defendants, and on December 6, 1957, plaintiffs made demand for entry of a default judgment. On December 10, 1957, default judgment quieting title to the property in plaintiffs and awarding $2,700 in damages to them was entered. On December 30, 1957, defendants noticed a motion under section 473 of the Code of Civil Procedure to set aside the default judgment. At the hearing on this motion defendant Ralph Lopes testified that, after receipt of the October 21, 1957, letter from plaintiffs' attorney, he talked to plaintiffs' attorney and requested a further extension of time so that he could sell the property n order to meet his obligations with the proceeds; that plaintiffs' attorney said he would not object if Lopes discussed these proposals with Arthur Luz; and that on the following day he talked to Luz who told him not to worry about the ten-day period for answering the complaint. Luz testified that he could not remember this conversation and that after the filing of the complaint he always referred Ralph Lopes to his attorney. Plaintiffs' attorney, by affidavit, indicated that he did not learn that the defendants were trying to sell the property until their letter of November 11, 1957.

Ralph Lopes also testified that on receiving the November 14, 1957, letter from plaintiffs' attorney, he talked to the latter about selling, and he was informed that he had no right to sell the property and was instructed to bring in any further offers. He also testified that on December 16, 1957, after hearing that he was to be dispossessed, he telephoned Arthur Luz who tole him not to worry. Luz denied that this conversation occurred.

The trial court refused to set the default aside, and entered its order accordingly.

The defendants attack both the judgment and the order refusing to set aside the default. The first question presented [55 Cal.2d 59] is whether or not, under the notice of appeal, the validity of the judgment and the validity of the order are both properly before us.

The notice of appeal was filed within time whether the judgment or order or both are involved. The question is, what was the scope of the notice of appeal? It

Page 164

[358 P.2d 292] reads as follows: '* * * defendants * * * hereby appeal * * * from an Order made and...

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207 practice notes
  • Barriga v. 99 Cents Only Stores LLC., E069288
    • United States
    • California Court of Appeals
    • June 26, 2020
    ...a reviewing courts' duty to liberally construe notices of appeal to embrace omitted orders or judgments]; see Luz v. Lopes (1960) 55 Cal.2d 54, 59, 10 Cal.Rptr. 161, 358 P.2d 289.) Finally, although plaintiff did not fully address the denial of the motion to strike in her main briefs, the r......
  • Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc.
    • United States
    • California Court of Appeals
    • May 4, 1984
    ...257, 262-263, 147 Cal.Rptr. 766; 4 Witkin, Cal.Procedure (2d ed. 1971) Proceedings Without Trial, § 148, p. 2809; see Luz v. Lopes (1960) 55 Cal.2d 54, 59, fn. 2, 10 Cal.Rptr. 161, 358 P.2d 289.) "A defendant against whom a default has been entered is out of court and is not entitled to tak......
  • Classen v. Weller
    • United States
    • California Court of Appeals
    • July 19, 1983
    ...the judgment entered November 4. Notices of appeal are liberally construed when there is no prejudice to the parties. (Luz v. Lopes (1960) 55 Cal.2d 54, 59, 10 Cal.Rptr. 161, 358 P.2d We note that the order denying Classen's motion for reconsideration has not been appealed, and we thus do n......
  • Quiroz v. Seventh Ave. Center, No. H028298.
    • United States
    • California Court of Appeals
    • June 27, 2006
    ...Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 20, 23 Cal.Rptr.3d 490, 104 P.3d 844; Luz v. Lopes (1960) 55 Cal.2d 54, 59, 10 Cal.Rptr. 161, 358 P.2d 289 [although party must identify judgment or order being appealed from, notice of appeal must be liberally c......
  • Request a trial to view additional results
208 cases
  • Barriga v. 99 Cents Only Stores LLC., E069288
    • United States
    • California Court of Appeals
    • June 26, 2020
    ...a reviewing courts' duty to liberally construe notices of appeal to embrace omitted orders or judgments]; see Luz v. Lopes (1960) 55 Cal.2d 54, 59, 10 Cal.Rptr. 161, 358 P.2d 289.) Finally, although plaintiff did not fully address the denial of the motion to strike in her main briefs, the r......
  • Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc.
    • United States
    • California Court of Appeals
    • May 4, 1984
    ...257, 262-263, 147 Cal.Rptr. 766; 4 Witkin, Cal.Procedure (2d ed. 1971) Proceedings Without Trial, § 148, p. 2809; see Luz v. Lopes (1960) 55 Cal.2d 54, 59, fn. 2, 10 Cal.Rptr. 161, 358 P.2d 289.) "A defendant against whom a default has been entered is out of court and is not entitled to tak......
  • Classen v. Weller
    • United States
    • California Court of Appeals
    • July 19, 1983
    ...the judgment entered November 4. Notices of appeal are liberally construed when there is no prejudice to the parties. (Luz v. Lopes (1960) 55 Cal.2d 54, 59, 10 Cal.Rptr. 161, 358 P.2d We note that the order denying Classen's motion for reconsideration has not been appealed, and we thus do n......
  • Quiroz v. Seventh Ave. Center, No. H028298.
    • United States
    • California Court of Appeals
    • June 27, 2006
    ...Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 20, 23 Cal.Rptr.3d 490, 104 P.3d 844; Luz v. Lopes (1960) 55 Cal.2d 54, 59, 10 Cal.Rptr. 161, 358 P.2d 289 [although party must identify judgment or order being appealed from, notice of appeal must be liberally c......
  • Request a trial to view additional results

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