Stevenson v. Turner

• Decision Date: 21 June 1979
• Citation: 94 Cal.App.3d 315,156 Cal.Rptr. 499
• Court: California Court of Appeals Court of Appeals
• Parties: Barbara STEVENSON, Plaintiff and Respondent, v. Teresa TURNER, Defendant and Appellant. Civ. 42619.

Page 499

156 Cal.Rptr. 499

94 Cal.App.3d 315

Barbara STEVENSON, Plaintiff and Respondent, v. Teresa TURNER, Defendant and Appellant.

Civ. 42619.

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

June 21, 1979.

Jerome Berg, San Francisco, for defendant and appellant.

Howard J. De Nike, San Francisco, for plaintiff and respondent.

ROUSE, Associate Justice.

Teresa Turner appeals from the default judgment entered against her, awarding damages to plaintiff in the amount of $20,000. She contends the default was improperly entered and that the subsequent judgment is void. For reasons hereinafter set forth, we conclude that Turner is correct in her contentions.

A brief summary of the facts is required. On April 12, 1976, plaintiff-respondent Barbara Stevenson filed a complaint in negligence for damages against Turner, doing business as Teresa's Complete Coiffures in San Francisco. The complaint alleged that plaintiff's scalp and hair had been damaged by Turner's negligent application of a permanent wave or hair-straightening substance. Turner admitted receiving a copy of the summons and complaint, but stated that she did not believe Stevenson to have been seriously injured. She therefore did not retain counsel and the matter slipped her mind. Turner heard no more of the matter until July 14, 1977, when she received a copy of a minute order giving judgment to Stevenson in the amount of $20,000. At this point, Turner retained counsel who moved for relief from default pursuant to Code of Civil Procedure section 473. The motion was denied; defendant appealed from the judgment.

An order denying relief from default is not appealable, although the propriety of the order may be reviewed on appeal from the judgment. (Sanford v. Smith (1970) 11 Cal.App.3d 991, 997, 90 Cal.Rptr. 256.)

Code of Civil Procedure section 473 provides:

"The court may, upon such terms as may be just, Relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect. Application For such relief must be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and Must be made within a reasonable time, in no case exceeding six months, after such judgment, order or proceeding was taken ; provided, however, that, in the case of a judgment, order or other proceeding determining the ownership or right to possession of real or personal property, without extending said six months period, when a notice in writing is personally served within the State of California both upon the party against whom the judgment, order or other proceeding has been taken, and upon his attorney of record, if any, notifying said party and his attorney of record, if any, that such order, judgment or other proceeding was taken against him and that any rights said party has to apply for relief under the provisions of Section 473 of the Code of Civil Procedure shall expire 90 days after service of said notice, then such application must be made within 90 days after service of such notice upon the defaulting party or his attorney of record, if any, whichever service shall be later." (Emphases added.)

The six-month outside time limit for granting relief is jurisdictional and the court may not consider any motion made after that period has elapsed. (Smith v. Pelton Water Wheel Co. (1907) 151 Cal. 394, 397, 90 P. 934; Schwartz v. Smookler (1962) 202 Cal.App.2d 76, 81, 20 Cal.Rptr. 507.) The sole exception arises where it is clear from the face of the appellate record that the default should not have been entered. In such case, the subsequent judgment is void and relief from the default on which it rests may be sought at any time. (Nagel v. P & M Distributors, Inc. (1969) 273 Cal.App.2d 176, 179, 180, 78 Cal.Rptr. 65; Batte v. Bandy (1958) 165 Cal.App.2d 527, 537, 332 P.2d 439.)

Appellant contends that the default was improperly entered in that the request to enter default did not show the date on which it was mailed to defendant. Since defendant, apparently due to an error by the postal service, did not receive her copy of the request to enter default at all, it is difficult to see how she was prejudiced by the omission of a date. In any event, since the date appears at five other locations on the request to enter default, as well as on the postmark of the envelope, we believe there was substantial compliance with the requirements of Code of Civil Procedure section 587 "An application by a plaintiff for entry of default under subdivision (1) or (2) of Section 585 or Section 586 or an application for judgment under subdivision (3) of Section 585 Shall include an affidavit stating that a copy of such application has been mailed to the defendant's attorney of record or, if none, to the defendant at his last known address and the date on which such copy was mailed. If no such address of the defendant is known to the plaintiff or plaintiff's attorney the affidavit shall state such fact. (Emphases added.)

"No application for judgment under the provisions of subdivision (3) of Section 585 shall be heard, and no default under the provisions of subdivision (1) or (2) of Section 585 or Section 586 shall be entered, unless such affidavit is filed. The nonreceipt of such notice shall not invalidate or constitute ground for setting aside any judgment." (Emphasis added.)

(Cf. Douglas v. Janis (1974) 43 Cal.App.3d 931, 936-937, 118 Cal.Rptr. 280 (discussing the requirements of Code Civ.Proc., § 1013 (proof of service by mail) and equating "strict" with "substantial" rather than with "literal" compliance).)

There is, however, a defect in the...