Misic v. Segars

• Decision Date: 15 August 1995
• Docket Number: No. B080663,B080663
• Parties: , 95 Cal. Daily Op. Serv. 6536, 95 Daily Journal D.A.R. 11,022 Sylvia MISIC, et al., Plaintiffs and Appellants, v. Marlene SEGARS, et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

Page 100

44 Cal.Rptr.2d 100

37 Cal.App.4th 1149, 95 Cal. Daily Op. Serv. 6536,

95 Daily Journal D.A.R. 11,022

Sylvia MISIC, et al., Plaintiffs and Appellants, v. Marlene SEGARS, et al., Defendants and Respondents.

No. B080663.

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

Aug. 15, 1995.

Review Denied Nov. 22, 1995.

Galindo & Fox and Craig A. Fox, Granada Hills, for plaintiffs and appellants.

Hernandez & Schapiro and David Hernandez, Jr., Diamond Bar, for defendants and respondents.

ORTEGA, Acting Presiding Justice.

The question presented is whether an order setting aside a default judgment qualifies as a "new trial" order for purposes of Code of Civil Procedure section 583.320, which provides a three-year period within which to again bring the matter to trial when a new trial is granted by the trial court or ordered by an appellate court. ¹ We conclude it does not.

Plaintiffs/appellants filed their complaint on May 24, 1985, "for cancellation of deed and to [quiet] title to real property; for money, fraud, breach of contract." The clerk's default was entered nearly five years later on April 6, 1990. On the fifth anniversary of the filing of the complaint, May 24, 1990, appellants secured a default judgment granting various forms of relief, including money damages.

On September 27, 1991, the trial court set aside the judgment pursuant to "the following order: 'GRANTED.' No actual notice, [ ]service insufficient, evidence does not establish avoidance of service." This ruling was affirmed on appeal. On November 3, 1993, the trial court granted defendants' motion to dismiss for failure to bring the matter to trial within five years from the filing of the complaint. (§ 583.310.)

Appellants contend section 583.320 gave them at least three years from September 27, 1991, to bring the matter to trial. ²

DISCUSSION

"It is unclear whether setting aside a judgment after a default 'prove-up' hearing ... extends the 5-year period for trial [for the three additional years provided by section 583.320]. Tiholiz [infra] strongly suggests it does not (i.e., a nonadversary hearing is not a 'trial.') But Briley [infra] suggests to the contrary (arguably no difference between default 'prove-up' and trial where party who has answered fails to appear)." (Weil & Brown, Cal.Practice Guide, Civ.Proc. Before Trial (Rutter 1994), Dismissals p 11:272.1c, p. 11-98.)

In Briley v. Sukoff (1979) 98 Cal.App.3d 405, 159 Cal.Rptr. 452, the defendants answered plaintiff's complaint, but failed to appear for trial. "The cause was assigned and after waiting a reasonable time, Briley put on testimonial and documentary evidence and received judgment." (Id. at p. 407, 159 Cal.Rptr. 452.) Defendants subsequently had the judgment set aside and secured dismissal for failure to get the case to trial within five years. Distinguishing several cases that had held a default prove-up is not a trial, the Briley court held that a trial had been held, entitling plaintiff to the three-year extension provided by section 583.320 for a new trial. Although failing to appear for trial, defendants had joined the action. Plaintiff presented testimony and other evidence. The procedure was conducted under section 594 (where an answering defendant fails to appear for trial) rather than section 585 (where defendant defaults by failing to answer the complaint).

Tiholiz v. Superior Court (1980) 104 Cal.App.3d 201, 163 Cal.Rptr. 452, disagreed with Briley. In Tiholiz, the plaintiff gave improper notice of a summary judgment motion and defendant failed to appear. The trial court granted plaintiff's motion. Subsequently, the trial court granted defendant's motion to set aside the summary judgment and then denied defendant's motion for a five-year dismissal. The appellate court issued a peremptory writ of mandate compelling the trial court to dismiss. The panel disagreed with Briley "with respect that the principle announced, i.e., nullifying or setting aside a judgment entered by default or as in the case at bench a summary judgment, equates with an order granting a new trial as that phrase is used in section 583, subdivision The primary case Briley analyzed and distinguished was Langan v. McCorkle (1969) 276 Cal.App.2d 805, 81 Cal.Rptr. 535, disapproved on other grounds in Brunzell Constr. Co. v. Wagner (1970) 2 Cal.3d 545, 555, fn. 13, 86 Cal.Rptr. 297, 468 P.2d 553, which had concluded that a "hearing on the entry of the default judgment is not a trial within the meaning of ... 583. 'A trial is generally considered an adversary proceeding for the determination of a contested issue arising out of pleadings in which a fact or conclusion of law is maintained by one party and controverted by the other ... [.] In a hearing on the entry of a default judgment resulting from the failure of a party to answer, neither adversary parties, nor adversary pleadings, nor contested issues of law or fact are present.' [Citation.]" (Briley v. Sukoff, supra, 98 Cal.App.3d at p. 408, 159 Cal.Rptr. 452, fn. omitted.) Briley noted several other cases had reached the same result as Langan, but did not "involve a judgment taken pursuant to ... section 594 and later set aside." (Id. at p. 409, 159 Cal.Rptr. 452.)

(c)[, now section 583.320]. A default judgment by its very designation expressly states it is the result of a nonadversary proceeding." (Id. at p. 205, 163 Cal.Rptr. 452.)

Langan rejected the argument that a plaintiff's testimony at the prove-up hearing turns the procedure into a trial within the meaning of section 583. "It is well established that the effect of the entry of a default judgment which is later vacated on the running of the five-year period of section 583 is to suspend the running of the period while the default judgment remains in effect. During that time it would obviously be impossible to bring the action to trial. But once the default judgment has been vacated the running of the five-year period resumes." (Langan v. McCorkle, supra, 276 Cal.App.2d at p. 807-808, 81 Cal.Rptr. 535; see also Maguire v. Collier (1975) 49 Cal.App.3d 309, 312-313, 122 Cal.Rptr. 510; Vanyek v. Heard (1971) 18 Cal.App.3d 467, 95 Cal.Rptr. 750; and Reeves v. Hutson (1956) 144 Cal.App.2d 445, 453, 301 P.2d 264.)

Other authority, while not dealing specifically with this issue, would seem to give the term "trial" a broader interpretation. "... 'A trial is the examination before a competent tribunal, according to the law of the land, of the facts or law put in issue in a cause for the purpose of determining such issue. When a court hears and determines any issue of fact or of law for the purpose of determining the rights of the parties it may be considered a trial.' [Citation.]" (City of Pasadena v. Superior Court (1931) 212 Cal. 309, 313, 298 P. 968, italics added.) For example, a trial occurs when a trial court resolves " '... the litigation adversely to the plaintiff by such procedures ... as directed verdict ..., nonsuit ..., judgment under Code of Civil Procedure section 631.8, summary judgment ..., or judgment on the pleadings.... These procedures must necessarily all be deemed to constitute a trial.' [Citation.]" (7 Witkin, Cal.Procedure (3d ed. 1985) Trial, § 3, p. 21, citing Kindt v. Kauffman (1976) 57 Cal.App.3d 845, 862, 129 Cal.Rptr. 603, disapproved on other grounds in Ewing v. Cloverleaf Bowl (1978) 20 Cal.3d 389, 401, fn. 8, 143 Cal.Rptr. 13, 572 P.2d 1155.) "In its broad meaning, the term 'trial' includes a trial on the law alone. [Citation.]" (7 Witkin, Cal.Procedure, Trial, supra, at p. 19.) "There may be a trial of issues of fact though no evidence is introduced." (7 Witkin, Cal.Procedure, Trial, supra, § 2, at p. 19.)

"A trial shall be deemed to actually commence at the beginning of the opening statement or argument of any party or his or her counsel, or if there is no opening statement, then at the time of the administering of the oath or affirmation to the first witness, or the introduction of any evidence." (§ 581, subd. (a)(6).) A trial is completed when judgment is entered. (7 Witkin, Cal.Procedure, Trial, supra, § 1, at p. 19.) In the instant matter, the judgment shows that "evidence [was] introduced and ... considered by the court[.]"

"A default judgment is reviewable on appeal the same as any other civil judgment. The fact that defendant defaulted in the trial court does not bar its right to appeal the judgment entered. [Citing City Bank of San Diego v. Ramage (1968) 266 Cal.App.2d 570, 72 Cal.Rptr. 273.]" (Cal. Practice Guide, Civ.Proc. Before Trial, supra, p 5:272, p. 5- "[R]elief from judicial error in rendering a default judgment can be obtained in the same manner as for judgments following a contested trial. [Citing Don v. Cruz (1982) 131 Cal.App.3d 695, 182 Cal.Rptr. 581.]" (Weil & Brown, supra, p 5:476, p. 5-88.7.) "Although in default, defendant can attack the default judgment in the trial court by motion for new trial on the ground of 'excessive or inadequate' damages or 'because the verdict or decision is against the law[.]' [Citing section 657, subds. (5), (6) and Don v. Cruz, supra, 131 Cal.App.3d at p. 704, 182 Cal.Rptr. 581.]" (Id. at p 5:477.) Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385-386, 202 Cal.Rptr. 204, with dictum to the contrary, "is unsupported by any recent authority, and is believed to be incorrect." (Weil & Brown, supra, at p 5:479, pp. 5-88.7-5-88.8.)

                52.)  "Appellate courts are inclined to affirm orders granting relief from default because the law favors trial on the merits, whenever possible."  (Id. at p 5:415, p. 5-81.)   When a trial court grants a motion to vacate a default, an appeal does not lie in the absence of entry of a default judgment.  (Velicescu v. Pauna (1991) 231 Cal.App.3d 1521, 282 Cal.Rptr. 832.)
                

Under this rationale, a defaulting defendant could ask the trial court for a new trial, at least under certain circumstances. If granted, section 583.320(a)(2)...