Security Truck Line v. City of Monterey

• Decision Date: 28 April 1953
• Court: California Court of Appeals Court of Appeals
• Parties: SECURITY TRUCK LINE v. CITY OF MONTEREY et al. Civ. 15230, 15367, 15704.

Page 366

256 P.2d 366

117 Cal.App.2d 441

SECURITY TRUCK LINE v. CITY OF MONTEREY et al.

Civ. 15230, 15367, 15704.

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

April 28, 1953.

Rehearing Denied May 28, 1953.

See 257 P.2d 755.

Russell Zaches, Monterey, for appellant.

Rankin, Oneal, Luckhardt, Center & Hall and Marshall S. Hall, San Jose, for respondent.

PETERS, Presiding Justice.

The Security Truck Line is a corporation licensed as a highway carrier by the Public Utilities Commission. During the winter fish packing season it hauls fish by its own trucks and by subcontracts with subhaulers into Monterey from outside the county, and delivers the fish to several canneries there located. The city, ¹ by ordinance, and by an amendment thereto specifically covering seasonal fish haulers, has imposed upon the plaintiff a business license tax based upon the weight of each of its trucks and upon each truck of the subhaulers employed or used by plaintiff in such hauling. The plaintiff's principal place of business is in San Jose, located in a county different from the city of Monterey, and the sole acts performed by plaintiff in Monterey are the deliveries of such fish. The ordinance recites that it was passed solely as a revenue measure.

The plaintiff brought this action against the city and its officers to have the ordinance declared unconstitutional and to have its enforcement enjoined. Upon posting a bond, plaintiff then secured a temporary restraining order, and, after a hearing, secured a preliminary injunction, prohibiting the defendants from enforcing the ordinance during the pendency of the action. Defendants have appealed from that order--appeal No. 15,230.

Thereafter, the defendants failed to file an answer or demurrer, and, after a warning from plaintiff's counsel, the default of defendants was entered. Defendants moved to set aside the default under section 473 of the Code of Civil Procedure. The motion was denied. Defendants have appealed from the order denying their motion to set aside their default--appeal No. 15,367.

As a result of these proceedings a default judgment was entered against defendants. An appeal has been taken from that default judgment--appeal No. 15,704. The three appeals have been consolidated.

But two basic questions are presented on these appeals. First, we must decide whether or not the trial court properly denied the motion for relief from default. Second, we must decide, at least if the order denying the motion for relief from default is affirmed, whether the conclusion that the ordinance as amended is discriminatory and unconstitutional is supported.

It is our opinion that the order of the trial court refusing to set aside defendants' default must be affirmed. The complaint was filed on October 11, 1951. The defendants were properly served within the county on that day or immediately thereafter. A temporary restraining order was issued, and a hearing had on the application for the preliminary injunction on October 22, 1951. The preliminary injunction issued October 25, 1951, and defendants appealed therefrom on November 14, 1951. On November 16, 1951, some five weeks after the filing of the complaint and proper service on defendants, plaintiff's counsel requested entry of defendants' default and it was entered. On November 20, 1951, defendants gave notice of a motion to be heard on November 26, 1951, to set aside their default under section 473 of the Code of Civil Procedure, claiming mistake, inadvertence, surprise and excusable neglect. On this same day counsel for defendants appeared at the hearing at which the court was considering whether to enter judgment based on the default, and objected to the entry of the judgment. Various affidavits were introduced, some testimony taken, and the evidence taken upon the hearing at which the preliminary injunction was granted was introduced. The court thereupon ordered judgment to be entered, and a permanent injunction issued.

By a minute order dated December 17, 1951, and filed on December 24, 1951, the court denied the motion to set aside the default. This order also recites that by oral stipulation that motion was expanded to include a request to set aside the judgment, and this portion of the expanded motion was also denied.

The affidavits of the defendants in support of their motion to be relieved of default admit that on November 1, 1951, counsel for plaintiff wrote to the city attorney reminding him that no appearances had as yet been made by defendants and asking his intention in this regard, and then they aver press of business in various respects as an excuse for failing to file such appearance. This excuse has been abandoned on this appeal. The sole ground now relied upon to secure a reversal of the order refusing to set aside the default is to be found in the averments contained in the affidavits that the city attorney honestly but erroneously believed that the appeal from the order granting the preliminary injunction operated as a stay of all proceedings in the main action. It is contended that this honest mistake of law, as a matter of law, compelled the granting of the motion for relief from default.

This contention cannot be sustained. The determination as to whether such a motion should or should not be granted is within the discretion of the trial court. In the absence of an abuse of such discretion its determination will not be set aside.

An honest mistake of law is, of course, a valid ground for granting relief, Douglass v. Todd, 96 Cal. 655, 31 P. 623; Beard v. Beard, 16 Cal.2d 645, 107 P.2d 385; Fickeisen v. Peebler, 77 Cal.App.2d 148, 174 P.2d 883; Svistunoff v. Svistunoff, 108 Cal.App.2d 638, 239 P.2d 650, and, in a proper case, where the mistake is an honest one, where the problem involved is complex and debatable, and where there are no elements of negligence, laxness or indifference, may compel the granting of such relief. Waite v. Southern Pacific Co., 192 Cal. 467, 221 P. 204; Roehl v. Texas Co., 107 Cal.App. 708, 291 P. 262; Brill v. Fox, 211 Cal. 739, 297 P. 25. Ignorance of the law, at least where coupled with negligence in failing to look it up, will not justify a trial court in granting relief, Shearman v. Jorgensen, 106 Cal. 483, 39 P. 863; Penryn Land Co. v. Akahori, 37 Cal.App. 14, 173 P. 612, and such facts will certainly sustain a finding denying relief. Garroway v. Jennings, 189 Cal. 97, 207 P. 554; Miller v. Lee, 52 Cal.App.2d 10, 125 P.2d 627; Salazar v. Steelman, 22 Cal.App.2d 402, 71 P.2d 79; Ingrim v. Epperson, 137 Cal. 370, 70 P. 165; Willett v. Schmeister Mfg. Co., 80 Cal.App. 337, 251 P. 932; Mahana v. Alexander, 88 Cal.App. 111, 263 P. 260; Dineen v. San Francisco, 38 Cal.App.2d 486, 101 P.2d 736.

There is a somewhat tenuous line between a mistake of law and ignorance of law. The difference is probably only one of degree. In such cases all factors involved must be considered to determine whether relief should be granted or denied. While there is a strong public policy in favor of permitting a trial of a case on its merits, the determination as to whether a particular mistake of law warrants the granting of relief reposes largely in the discretion of the trial court. Beard v. Beard, 16 Cal.2d 645, 107 P.2d 385. In the instant case we are not interested in the question as to whether the trial court could have granted relief based on the claimed mistake of law, but, since the trial court denied relief, only in whether such holding was within its discretion. The assertion that counsel for the defendants believed that the appeal for the preliminary injunction acted as a stay and made it unnecessary for appearances to be made in the main action is not sufficient to compel a reversal of the order denying relief. The problem of law involved is a simple one. Its solution is readily ascertainable. When this is coupled with the fact that counsel for plaintiff warned counsel for defendants that appearances were necessary and did not take the default until over two weeks had elapsed after the warning, it is clear that the trial court was justified in believing that the failure to look up the law indicated at least indifference. Under the authorities above cited it must be held that the order denying relief is supported by the record and was well within the discretion of the trial court. That being so, this order must be affirmed.

This brings us to the question of the constitutionality of the ordinance as amended. Inasmuch as this is an appeal from a default judgment holding the ordinance as amended unconstitutional, this question must be determined from the facts alleged in the complaint, considering that pleading as an affidavit, and from the affidavits and evidence produced at the hearing of the motion for a preliminary injunction.

The complaint, so far as pertinent here, alleges that plaintiff hauls fish into Monterey pursuant to permits from the Public Utilities Commission designating it as a radial highway common carrier and as a highway contract carrier. It is averred that the principal place of business of plaintiff is in San Jose, and that its principal activities are in hauling fruit and vegetables in Santa Clara County; that its only activity in Monterey is to deliver bulk commodities in that city, and that it has no place of business, no agents and no terminus in Monterey. It is then averred that the canneries of Monterey formerly relied on sardines caught in Monterey Bay or nearby, but that in recent years the species has been depleted so that the only alternative to closing the canneries has been to bring in sardines from Hueneme, Ventura County, and Avila, San Luis Obispo County; that the only reasonable means of transport is highway transport; that the sardines are highly perishable, and that the canning of such fish is a seasonal industry carried on in the fall and winter months.

It is then averred that plaintiff has sixty trucks; that its...