Slusher v. Durrer

Decision Date13 May 1977
Citation69 Cal.App.3d 747,138 Cal.Rptr. 265
CourtCalifornia Court of Appeals Court of Appeals
PartiesLorene SLUSHER, Plaintiff and Appellant, v. Tony DURR, also known as Tony Durrer and as Antone Durrer, Defendant and Respondent. Civ. 16113.
Carr, Kennedy, Peterson & Frost, Redding, for plaintiff and appellant

Rawlins Coffman, Red Bluff, for defendant and respondent.

EVANS, Associate Justice.

Plaintiff appeals from an order vacating a default and default judgment. A civil action was brought against defendant by plaintiff Lorene Slusher seeking both general and exemplary damages for injuries resulting from an assault and battery committed by defendant on plaintiff at a Fall River Mills bar on August 5, 1973.

Defendant was also criminally charged with assault and battery and disturbing the peace; he was acquitted of the assault and battery charge, found guilty of disturbing the peace and fined $24. On October 17, 1973, while in court defending himself on the misdemeanor charges, he was served with summons and complaint in the civil proceeding. He failed to answer or otherwise appear within the statutory time, and on March 14, 1974, request to enter default was filed. The declaration of mailing required by Code of Civil Procedure section 587 indicated that the address of defendant was unknown to plaintiff and her attorney. The declaration did, however, state that defendant was not in the military service and that statement was signed by plaintiff's counsel.

Two years later, on April 8, 1976, default judgment was taken, awarding plaintiff $5,000 general and $5,000 exemplary damages. Notice of entry of judgment was issued April 19, 1976, and was served by mail on the defendant on April 21, 1976.

Defendant filed a motion to set aside the default and the default judgment on May 10, 1976. That motion was granted on June 23, 1976, and plaintiff appeals, asserting the trial court abused its discretion in setting aside the default and default judgment.

In support of the motion to set aside the default judgment, defendant's declaration as well as those of his wife Linda, attorney Rawlins Coffman, and statements from seven acquaintances were filed. The substance of the declarations is summarized in attorney Coffman's statement as follows: 'The facts as reported to me by ANTONE H. DURRER, the Defendant, and . . . his wife LINDA DURRER, go roughly as follows:

'On or about the evening of August 5, 1973, while driving through Fall River Mills . . . they decided to stop for some food in a restaurant and bar, . . . operated by the Plaintiff LORENE SLUSHER and her husband. Mrs. Slusher was asked if they could buy . . . food to take out . . .. She said no, it could not be done. Within a few minutes . . . an altercation took place involving Mr. and Mrs. Slusher and the Defendant.

'Following the altercation, a criminal complaint was filed in the Justice Court of Fall River Valley Judicial District. A trial was held on October 17, 1973, before the Honorable Judge William H. Phelps, at the conclusion of which the Defendant was found guilty of disturbing the peace and was fined $19.00 plus penalty assessment of $5.00. As to Count Two, Assault and Battery, he was found not guilty. . . .

'. . . The Summons and Complaint (civil proceeding) were served in the Justice Court October 17, 1973. ANTONE H. DURRER was not represented by counsel during these criminal proceedings. He appeared pro per. After the trial and payment of the fine, Judge Phelps is said to have indicated to the Defendant . . . and his wife . . . that all proceedings had terminated and there was nothing more to be done. Mr. and Mrs. Durrer discussed the Summons and Complaint on their way home and made the mistake of believing that the criminal proceedings and the civil proceedings were one and the same. They did not consult counsel. They forgot all about it.

'The Judgment was taken against them by reason of their mistake, inadvertence 'The Defendant . . . has stated the facts of the case to me as he recalls them and it appears . . . that he has a good and substantial defense on the merits. He and his wife . . . indicated . . . that the injuries suffered by LORENE SLUSHER (plaintiff) were incurred while pursuing the Defendant and his wife out the front door of the bar . . . with a blunt instrument in her hand; that in the course of the altercation, she stumbled and fell off the porch and injured herself.'

and excusable neglect . . . and their belief that all legal proceedings had terminated upon payment of the $24.00 fine and assessment. They were further lulled into complacency by the fact that nothing was done to bring the civil action to a head until the Plaintiff learned that the Defendant might inherit some property from his grandmother.

The attorney in his declaration further stated that, 'I, RAWLINS COFFMAN, telephoned DANIEL S. FROST, counsel for the Plaintiff on about April 26, 1976, and asked him what had happened. He indicated that my client ANTONE H. DURRER had been involved in an altercation in Fall River Mills in 1973, and that a civil suit had been filed at the time and service made. . . . he indicated that nothing was done with the case until it was learned that ANTONE H. DURRER was to inherit some property through his grandmother's estate; he then reported that he had the matter heard before the Honorable Richard W. Abbe and that judgment was awarded for $5,000 general damages and $5,000 punitive damages.'

Defendant's declaration indicated that he had resided in Northern California all of his 33 years and was well known among cattle people as his father and grandfather had been before him. That his permanent address was 425 South Jackson Street, Red Bluff, which address he had had since January of 1973. It is the address carried on his driver's license, and he receives mail there at this time. The statement further declared that upon his arrest, he secured a bail bond in Redding and gave his address as well as the address of various relatives. He also indicated the District Attorney's Office in Shasta County who prosecuted the misdemeanor complaint had his address, the sheriff's office who served him with process had his address, and the docket in Judge Phelps' court reveals his address as Route 3, Box 370, Red Bluff. The affidavit of defendant's wife Linda had attached to it the statements of seven residents of the area, each acquainted with plaintiff who knew defendant's address at all pertinent times.

In opposition to the motion, Dorothea M. Heath, secretary to plaintiff's attorney Daniel Frost, stated in her declaration that she inquired of the office of the Shasta County District Attorney for defendant's whereabouts. She was advised they had nothing in their file other than the criminal complaint. She called the Fall River Mills Justice Court and was told by the secretary to Judge Phelps that they did not have an address for defendant. She stated that with the exception of the above action, she made no other inquiry nor received any other information concerning defendant's address. Plaintiff's counsel stated in his declaration that he contacted the telephone company on more than one occasion and requested a telephone number for defendant in Cottonwood. He was not successful in procuring that number. He indicated that 'The first time that I became aware of any mailing address for the defendant, Tony Durrer, was on April 16, 1976, when I received copies of various papers filed in the Estate of Leora Durrer, Tehama County Superior Court Action No. 8505, which listed Mr. Durrer's address as P.O. Box 692, Williams, California . . ..'

The matter was argued and submitted to the court on June 21, 1976. On June 23, 1976, the court made its order vacating the default and setting aside the default judgment and directed the clerk to permit the defendant to answer or appear in the proceeding.


On appeal, plaintiff attacks the declaration of defense counsel as inadmissible hearsay and asserts that at the hearing on the motion to set aside the default and default judgment he made that objection. Any person is qualified to make an affidavit in support of a motion, and his declaration is competent evidence unless the objection is raised that the affiant had no personal knowledge of the matters set forth in the affidavit, or a motion to strike is made. The evidence otherwise is to be regarded as competent evidence in support of an order or judgment. (Flood v. Simpson (1975) 45 Cal.App.3d 644, 649, 119 Cal.Rptr. 675.) The record presented reveals a challenge in the trial court to the declaration of attorney Coffman. However, the trial court did not rule on the objection and counsel for plaintiff did not lodge a motion to strike. When viewed as a whole, the declarations submitted by defendant do contain some hearsay. However, that evidence is corroborated by other nonobjectionable declarations. Any error committed by the court in not sustaining the objection to counsel Coffman's declaration was harmless. (Globe Indem. Co. v. State of California (1974) 43 Cal.App.3d 745, 118 Cal.Rptr. 75.)


A motion for relief from a default judgment is addressed to the sound discretion of the trial court, and its ruling granting the motion will not be reversed on appeal in the absence of a showing of a manifest abuse of discretion. (Ford v. Herndon (1976) 62 Cal.App.3d 492, 494, 133 Cal.Rptr. 111.) The policy of the law favors, wherever possible, a hearing on the merits; appellate courts are more disposed to affirm an order where the result compels a trial on the merits than they are when the default judgment is permitted to stand, and it appears that a meritorious defense may be available. (Weitz v. Yankosky (1966) 63 Cal.2d 849, 854, 48 Cal.Rptr. 620, 409 P.2d 700.) Phrased...

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    ...that a copy of the application has been mailed to the defendant's attorney of record...." As explained in Slusher v. Durrer (1977) 69 Cal.App.3d 747, 755, 138 Cal.Rptr. 265, the statute was enacted "to prevent the taking of a default against an unwary litigant." Furthermore, a party applyin......
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