Preston v. Wyoming Pacific Oil Co.

• Decision Date: 30 November 1961
• Citation: 17 Cal.Rptr. 443,197 Cal.App.2d 517
• Court: California Court of Appeals
• Parties: Edward J. PRESTON, also known as E. J. Preston, Plaintiff and Appellant, v. WYOMING PACIFIC OIL COMPANY, a corporation, Defendant and Respondent. Civ. 25240.

Page 443

17 Cal.Rptr. 443

197 Cal.App.2d 517

Edward J. PRESTON, also known as E. J. Preston, Plaintiff and Appellant, v. WYOMING PACIFIC OIL COMPANY, a corporation, Defendant and Respondent.

Civ. 25240.

District Court of Appeal, Second District, Division 2, California.

Nov. 30, 1961.

Rehearing Denied Dec. 26, 1961.

Hearing Denied Jan. 24, 1962.

Milo V. Olson, Los Angeles, for appellants.

Henry C. Clausen, Clausen & St. Clair, San Francisco, for respondent.

HERNDON, Justice.

By this suit in equity, plaintiff seeks to set aside a default judgment in the amount of $6,185,000.00 which defendant recovered against him in a former action. On July 7, 1960, the trial court sustained a demurrer to plaintiff's second amended complaint without leave to amend, and on July 21, 1960, entered the judgment of dismissal from which plaintiff takes this appeal.

The complaint in the former action was filed December 15, 1952, and on February 3, 1955, copies of the summons and complaint were personally served on Preston, the plaintiff and appellant herein. He failed to appear within the prescribed time and his default was duly entered on March 15, 1955. A judgment by the court after default was signed and filed on November 19, 1957. It is this judgment which appellant seeks to set aside.

Appellant has made three previous unsuccessful attempts to have said default judgment set aside by motions made in the former action. The orders denying appellant's prior motions to set aside the judgment were affirmed by Division One of this court in Wyoming Pacific Oil Co. v. Preston, 171 Cal.App.2d 735, 341 P.2d 732. Appellant's petition for a rehearing was denied and the Supreme Court denied his petition for a hearing in that court. On September 4, 1959, the Supreme Court denied his request for a reconsideration of his petition for a hearing.

Both parties urge us to take judicial notice of all the records, files and proceedings in the former action, both in the trial court and in this court, including the briefs filed on said former appeal and the decision of this court above cited. Since it appears that the parties, subject matter, and facts here presented are the same as those involved in said former proceedings and considered on said former appeal, we may properly take judicial notice thereof. (Flores v. Arroyo, 15 Cal.Rptr. 87 364 P.2d 263 ¹; Hammell v. Britton, 19 Cal.2d 72, 75, 119 P.2d 333; Calhoun v. Calhoun, 81 Cal.App.2d 297, 302, 183 P.2d 922; 18 Cal.Jur.2d 472, 473.)

On March 31, 1958, appellant filed his special appearance in the former action and moved to set aside the default and judgment upon the ground that the judgment was void in that the court acquired no jurisdiction of the person of appellant for the reason that no copy of the summons was served upon him. As stated in Wyoming Pacific Oil Co. v. Preston, supra, 171 Cal.App.2d 735, 739, 740, 341 P.2d 732, 734, 'the motion last referred to was placed on calendar and was heard on April 28, 29 and 30, 1958, before Judge Emil Gumpert, who listened to the testimony of nine witnesses and to the arguments of counsel, and then determined, in effect, that the defendant's contentions were false, and stated at the end of the hearing: 'I am completely satisfied, gentlemen, that the moving party has not met the burden of proof. As I indicated yesterday, I am convinced almost to the point of demonstration that the summons was attached, and that summons was served, * * *'. The motion was denied, * * *'

At the conclusion of the hearing before Judge Gumpert, appellant made an oral motion to vacate the judgment upon several grounds. It appears that these grounds were rested upon substantially the same alleged facts as those set forth in appellant's second amended complaint herein. Indeed, in his opening brief on this appeal, appellant says that his oral motion was made 'upon the grounds, most of which are set forth in Preston's complaint in equity.' With reference to said motion, and the disposition thereof, appellant's second amended complaint herein alleges as follows:

'During the course of the hearing on the special appearance motion, Preston and his present attorney realized that there was no merit to the contention that no summons had been attached to the copy of the complaint that had been served, with the result that his attorney refused to argue and press that matter upon submission, but immediately after the Superior Court in said action had made its order denying said special appearance motion to vacate and set aside the default judgment, Preston made an oral motion to vacate the judgment upon the grounds that the judgment was obtained as a result of fraud or imposition upon the court by Wyoming Pacific; that the judgment was void because the judgment exceeded the demand contained in the prayer of the complaint; that no accounting was in fact had; that the complaint was amended in matters of substance after the default of Preston had been entered; and, as a matter of law, the default was therefore opened; and as the complaint as changed or amended had not been served on Preston, the court had no jurisdiction or right to enter a judgment against Preston; that the copy of the complaint as on file upon which the judgment was entered had never been served on Preston; that Wyoming Pacific had waived any right to relief on the complaint because of alterations made on the complaint; and that because of the criminal nature of said acts, as a matter of public policy, Wyoming Pacific was not entitled to any relief thereon; that the delay and negligence was not truly that of Preston but that of his attorney, William J. Hyland, III; and further, that Preston had a good and meritorious defense to the action on its merits. This oral motion was denied by Honorable Emil Gumpert, Judge of the above court, without prejudice, so that Preston might formalize said motion in written form. Notwithstanding the rule [sic] so made that said motion was denied without prejudice so that Preston could file a written notice of motion urging the same grounds, after such written notice of motion was filed, in defense thereto, at the time of the trial and on the appeal, defendant Wyoming Pacific urged that said matters had already been ruled on and determined by Judge Gumpert and in substance that plea by defendant Wyoming Pacific was sustained. Preston has never had a real determination on the merits of said grounds to vacate said judgment. By reason thereof, defendant Wyoming Pacific in this action is estopped by its former plea from now urging or contending that all of said matters have already been determined.'

On May 9, 1958, appellant filed a notice of motion to vacate the default judgment and the default. The grounds therein relied upon are stated in Wyoming Pacific Oil Co. v. Preston, supra, at pages 740 and 741, 341 P.2d at pages 734 and 735. It appears from the record and is conceded that the grounds urged in support of appellant's third motion to set aside the judgment were essentially the same as those advanced in support of his oral motion before Judge Gumpert as recited above and were rested upon the same facts as those now alleged in the present suit. Appellant's notice of motion contained the following statement:

'The foregoing Motions and Special Appearance will be made upon this written Notice of Motion, upon the Affidavit attached hereto, upon the files and records of this action, upon the transcript of the testimony of Ellis D. Reiter, Esq. in this action given on April 28, 1958 in Department 36 of this Court, upon the testimony of Mrs. Charles A. Mau, President and owner of the controlling interest of plaintiff given on April 29, 1958 in Department 36 of this Court, and upon the Points and Authorities filed herewith.'

The quoted statement from the notice of motion indicates appellant's reliance upon oral testimony taken in the previous hearing before Judge Gumpert. This third motion was heard on May 16, 1958, before the Honorable Kurtz Kauffman. It appears that Judge Kauffman not only received the conflicting affidavits, and other evidence offered by the parties, but that he also made an order incorporating into the record the reporter's transcript which contained all of the oral testimony given and the proceedings taken in the previous hearing before Judge Gumpert. This, of course, included all of the testimony to which appellant referred in his notice of motion. Appellant makes no contention that Judge Kauffman refused to receive any evidence offered by him in support of his motion. An order denying the motion was entered on June 4, 1958. As we have stated, this order and the previous orders of Judge Gumpert were affirmed by Division One of this court in the decision to which we have referred.

Under the circumstances of this case, the trial court in ruling on the demurrer was entitled to take judicial notice of the proceedings in the former action and on the former appeal, because (1) said second amended complaint averred at considerable length facts which fully disclosed the nature, substance and disposition of said former proceeding; (2) both parties invited the trial court (as they have urged this court) to take judicial notice of said former proceedings by their detailed references thereto in the pleadings and memoranda of law which they filed below; and (3) the full and comprehensive treatment which the reviewing court accorded to the merits of each and every ground upon which appellant sought to set aside the judgment by his several motions facilitates the taking of judicial notice and reveals that the interests of justice would be served thereby. (FLORES V. ARROYO, SUPRA, 15 CAL.RPTR. 87, 364 P.2D 263;² Hammell v. Britton, supra, 19 Cal.2d 72, 75, 119 P.2d 333; and see Willson v. Security-First Nat. Bk., 21 Cal.2d 705, 710-711, 134 P.2d 800.)

When judicial notice is taken of said former proceedings, it is at once manifest that appellant's present suit in...