Vartanian v. Croll

Decision Date06 May 1953
Citation256 P.2d 1022,117 Cal.App.2d 639
CourtCalifornia Court of Appeals Court of Appeals
PartiesVARTANIAN v. CROLL. Civ. 15429.

Richards & Rankin, Oakland, for appellant.

Robert H. Kroninger, Oakland, for respondent.

PETERS, Presiding Justice.

This is an appeal from an order made under section 473 of the Code of Civil Procedure vacating and setting aside a judgment in favor of defendant on the ground that such judgment had been entered out of mistake, inadvertence and excusable neglect of the plaintiff and by reason of fraud perpetrated upon the court by the defendant. The same order permitted plaintiff to file an amended complaint. The original trial on the merits was before the court without a jury, and before the same judge who granted the motion. Defendant appeals, contending that, in granting this relief, the trial court abused its discretion as a matter of law.

The complaint upon which the cause proceeded to trial was for an accounting for secret profits allegedly secured by appellant, who is a real estate broker, while acting as the agent of respondent. The complaint alleges that respondent employed appellant to purchase a motel in Calistoga; that appellant represented that the property could not be purchased for less than $65,000; that appellant concealed the fact that the motel could be purchased for $40,000, and appellant did in fact purchase it for that sum but sold it to respondent for $65,000; that in reliance on these representations respondent delivered to appellant a deed to certain Oakland property worth $25,000 and was induced, by false representations, to make this deed to appellant. The prayer requests that appellant either account for the Oakland property or pay to respondent the $25,000 secret profit.

The appellant filed a general denial, and the cause proceeded to trial. The trial record was not introduced in this proceeding, only the judgment roll in that action now being before us. The findings in that case are to the effect that respondent did not employ appellant as his agent to buy the motel; that appellant made no representations that the property could not be obtained for less than $65,000; that the Oakland property was not delivered to appellant to be used as part of the purchase price of the motel; that the Oakland property was not worth more than $7,500; that respondent and appellant in fact agreed to exchange properties; that appellant then had an option to buy the motel; that the parties dealt with each other as principals and at arm's length; that respondent knew that appellant was not his agent in the deal; that the motel could not then have been secured for $40,000. Judgment denying respondent any relief was entered July 18, 1951, and a motion for a new trial was in due course denied. Respondent then changed lawyers. On January 7, 1952, eleven days before the six-month period prescribed by section 473 of the Code of Civil Procedure would have expired, respondent, through his new counsel, filed his notice of motion to vacate the judgment, and to permit the filing of an amended complaint. Respondent predicated his claim for such relief on his own inadvertence and excusable neglect, and on the further ground that appellant had perpetrated a fraud upon the court. Several affidavits were filed in support of these claims. In his own affidavit he averred that his first lawyer turned him over to his son who was not a lawyer, but that affiant thought that he was dealing with a lawyer; that he told the son the facts and showed him documents which, had they been introduced into evidence, would have resulted in a judgment in his favor; that such facts and documents were not introduced because the lawyer who tried the case was unfamiliar with the facts and did not fairly, properly or adequately represent respondent that as a result the court was not fully apprised of the true facts. Respondent further averred that he can now definitely prove that appellant was his agent, had no valid option on the motel, and made a secret profit of $25,000, the value of the Oakland property. In support of these allegations that appellant was his agent, defrauded him, and made a secret profit, several other affidavits were filed. Helen Long, the former owner of the motel property, averred that at no time did she give appellant an option on the property; that she and her attorney negotiated with appellant as respondent's agent; that as a result of those negotiations the motel property was conveyed to respondent for $40,000; that appellant represented himself as respondent's agent; that she had no knowledge at all that the Oakland property was involved in the deal. The lawyer for Mrs. Long averred that appellant had no option on the motel property, and that appellant told him he was respondent's agent. This affiant incorporated a letter executed by the affiant and Mrs. Long and addressed to appellant, stating that they agreed to the sale of the property to respondent.

In support of the charge of fraud on the part of appellant the affidavit of Helen Dusio, secretary and property manager for Helen Long, was filed. It avers that her office adjoins that of appellant in Oakland; that in October of 1949, at the direction of Joe Long, deceased husband of Helen Long, a listing of the motel directed to appellant 'as real estate broker' was prepared by her and delivered to appellant; that about this time appellant became respondent's agent for the purpose of purchasing the motel; that she notarized the deed from respondent to appellant of the Oakland property; that from respondent's then demeanor it was her belief that he did not understand the true nature and consequences of the transaction; that in April, 1950, the month the main action was filed, defendant stated to her 'If anybody asks you about the Calistoga deal, you don't know anything,' to which affiant replied 'Well, that would be true, because I don't know anything about it except that you were Mr. Vartanian's agent.' The affidavit continues: 'Walter Croll then stated, in a loud and threatening manner, 'That's exactly what I don't want you to say. And if you know what's good for you, you'll keep your mouth shut.'' The affidavit then concludes: 'That by reason of said threat, affiant desired and continues to desire to avoid being a witness in, or to give evidence in any dispute which has arisen or which might arise as a result of said transaction.'

Appellant filed two counter-affidavits alleging that the facts averred by respondent were available to respondent at the time of trial; that Helen Long, Helen Dusio, and Mrs. Long's attorney were all present in Alameda County prior to and during the trial; that at some undisclosed date he secured an option on the property from Joe Long, now deceased. He denied the conversation set forth in Helen Dusio's affidavit.

The former attorney for respondent averred that, prior to trial, he talked the case over with respondent; that at the times here involved his son was a law student who investigated some of the facts of the case for him; that the son made a synopsis of such facts and delivered it to affiant before trial, plus all pertinent letters and documents; that in his opinion the case was competently handled; that he had delivered all pertinent papers and documents in his file to respondent's new counsel in October and December, 1951.

Respondent also filed a proposed amended complaint setting forth, in four causes of action, in considerable detail, the claimed fraud and misrepresentations.

On these affidavits, after argument, the trial court made its order vacating the judgment, finding that such judgment had been rendered against respondent 'by reason of his mistake, inadvertence and excusable neglect and by reason of fraud on the part of the defendant, [appellant] Walter Croll, perpetrated upon the court'; that respondent had a good cause of action on the merits, and that good cause appeared for the filing of the amended complaint, leave to file such pleading being granted.

It is appellant's main contention that the facts, as a matter of law, were insufficient to warrant the trial court in setting the judgment aside. In passing on this contention certain general principles must be kept in mind. A motion for relief under section 473 of the Code of Civil Procedure is addressed to the sound discretion of the trial court. Its determination will not be disturbed in the absence of a clear showing that this discretion has been abused. See for a good statement of the rule, Beard v. Beard, 16 Cal.2d 645, 107 P.2d 385. There are relatively few reversals in this field. Of course, where there has been the entry of a default and the trial court sets it aside the appellate courts seldom reverse because of the strong public policy favoring trials on their merits. That policy is not applicable here because in the instant case there has been a trial on the merits. Even in such cases, however, where the judgment is set aside by the same judge who tried the case, the appellate courts will affirm if there is any substantial showing of excusable neglect on the part of the moving party or some unconscionable conduct on the part of the adverse party.

In the instant case the respondent relies on the negligence of his first counsel in failing to produce available evidence as excusable neglect. Stated thus baldly, that alone is probably not sufficient to warrant relief under section 473. It is a general rule that a client is chargeable with the negligence of his attorney, and that his redress, if any, is against that attorney. The mere fact that an attorney does not make a skillful presentation of a client's case will not, standing alone, usually warrant relief under section 473. Smith v. Tunstead, 56 Cal. 175; Nicol v. City & County of San Francisco, 130 Cal. 288, 62 P. 513; Bonestell v. Western Automotive F. Corp., 69 Cal.App. 719, 232 P. 734; Dineen v. City & County of San Francisco...

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35 cases
  • Garcia v. Hejmadi
    • United States
    • California Court of Appeals Court of Appeals
    • 20 Octubre 1997 inform them of the trial date but also failed himself to appear at trial. Another variation appeared in Vartanian v. Croll (1953) 117 Cal.App.2d 639, 646-647, 256 P.2d 1022, where judgment was found properly vacated based upon the negligence of the plaintiff's attorney plus the fraud of ......
  • Guenter v. Lomas & Nettleton Co.
    • United States
    • California Court of Appeals Court of Appeals
    • 1 Marzo 1983
    ...of mistake of law that will entitle a party to relief under section 473 of the Code of Civil Procedure. (See Vartanian v. Croll (1953) 117 Cal.App.2d 639, 644, 256 P.2d 1022.) We also note that the fact that counsel for respondents did not object to the filing of the documents entitled "Ass......
  • Cope v. Cope
    • United States
    • California Court of Appeals Court of Appeals
    • 19 Octubre 1964
    ...(1941) 48 Cal.App.2d 780, 789, 120 P.2d 724; Fallon v. Fallon (1948) 86 Cal.App.2d 872, 874, 195 P.2d 878; Vartanian v. Croll (1953) 117 Cal.App.2d 639, 647-648, 256 P.2d 1022; Johns v. Curry (1961) 189 Cal.App.2d 94, 98-99, 10 Cal.Rptr. 882; Code Civ.Proc. § 2009; Witkin, Cal. Evidence, § ......
  • Spellens v. Spellens
    • United States
    • California Court of Appeals Court of Appeals
    • 28 Diciembre 1956
    ...inadvertence and mistake of fact. A party may have relief in equity from the consequences of his mistake of fact. Vartanian v. Croll, 117 Cal.App.2d 639, 646, 256 P.2d 1022; Soule v. Bacon, 150 Cal. 495, 497, 89 P. 324. And where he would be entitled to such relief in an independent suit in......
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