Westinghouse Credit Corp. v. Wolfer

CourtCalifornia Court of Appeals
Writing for the CourtCOBEY
Citation88 Cal.Rptr. 654,10 Cal.App.3d 63
PartiesWESTINGHOUSE CREDIT CORPORATION, a Delaware Corporation, Plaintiff and Respondent, v. Roberta H. WOLFER, Defendant and Appellant. Civ. 35532.
Decision Date30 July 1970

Page 654

88 Cal.Rptr. 654
10 Cal.App.3d 63
WESTINGHOUSE CREDIT CORPORATION, a Delaware Corporation, Plaintiff and Respondent,
Roberta H. WOLFER, Defendant and Appellant.
Civ. 35532.
Court of Appeal, Second District, Division 3, California.
July 30, 1970.

Page 655

[10 Cal.App.3d 65] Aitken & Bradshaw and John G. Bradshaw, Santa Ana, for defendant and appellant.

Swerdlow, Glikbarg & Shimer, Allan Albala and Joel Behr, Beverly Hills, for plaintiff and respondent.

[10 Cal.App.3d 66] COBEY, Acting Presiding Justice.

Roberta H. Wolfer appeals from a minute order denying her motion to vacate her default 1 and the judgment entered thereon and for relief incidental thereto. The appeal lies (Code Civ.Proc. § 904.1(b)), but we affirm for reasons which we will now set forth.


In January 1966 Westinghouse acquired by written assignment for valuable consideration, all of the seller's interest under a written agreement covering the sale of certain restaurant equipment and related items to one Griffin. About six months later appellant assumed by a written assumption agreement all of Griffin's obligations to Westinghouse under the agreement

Page 656

of sale. A short time later one Savoy apparently took over the restaurant where the equipment and other items involved were in use, and assumed by written agreement with appellant and Griffin alone their debt to Westinghouse for these items. Shortly thereafter Westinghouse apparently learned of this assumption. The monthly payments to Westinghouse, however, almost immediately stopped.

On March 28, 1968, Westinghouse filed suit against Griffin, appellant and Savoy for the balance then due under the agreement of sale, namely, $13,081.18, and for other relief. About a month later the summons and the complaint in this action were duly served upon appellant and Savoy. Appellant thereupon delivered the summons and complaint she had received to an attorney, Endres, who apparently advised her that the matter would be taken care of. Endres, who was also Savoy's attorney, and Albala, Westinghouse's attorney, then negotiated a proposed settlement of the litigation under which, among other things, the monthly payments provided by the agreement of sale would be reduced to $175 and the period for the making of them thereby impliedly extended. Savoy accepted the settlement, executed a conditional stipulation for judgment, and made the payment of money to Westinghouse then required by the settlement.

Appellant, on the other hand, refused the settlement, which had been offered jointly to her and Savoy, and disclaimed any liability to Westinghouse. Westinghouse rejected the disclaimer and notified Endres orally and in writing that unless appellant appeared by July 5, 1968, Westinghouse [10 Cal.App.3d 67] would have her default entered. Appellant thereafter failed to appear in the action and her default was entered on August 19, 1968.

With the exception of one payment in June 1968, Westinghouse did not receive any of the reduced monthly payments. Consequently in February 1969 Westinghouse had the stipulated judgment against Savoy entered in the full principal amount for which suit had been brought, $13,081.18, and in May 1969 took judgment after default against appellant in the principal amount of $9,886.80. The following month a writ of execution issued on this judgment and a levy was made upon appellant's deposit of $1,344.06 and her safe deposit box at a certain bank. Appellant thereupon moved to set aside her default and the judgment taken thereon, and for incidental relief.


A motion to vacate a default judgment poses the fundamental issue of accommodation between the policy favoring the finality of judgments, on the one hand and the policy favoring judicial determinations by a hearing on the merits, on the other hand.

Appellant asks that the default judgment against her be set aside because she was deprived of the opportunity to present a meritorious defense to Westinghouse's suit against her through an extrinsic mistake on the part of her attorney, Endres. Specifically she claims that when Savoy promised her that he would pay the debt to Westinghouse for the restaurant equipment and related items, he became as...

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14 cases
  • ITT Diversified Credit Corp. v. Highlands Ins. Co.
    • United States
    • California Court of Appeals
    • April 23, 1987
    ...(Wexler v. McLucas (1975) 48 Cal.App.3d [191 Cal.App.3d 306] Supp. 9, 14, 121 Cal.Rptr. 453; Westinghouse Credit Corp. v. Wolfer (1970) 10 Cal.App.3d 63, 68, 88 Cal.Rptr. 654; Brock v. Western Nat. Indem. Co. (1955) 132 Cal.App.2d 10, 16, 281 P.2d 571.) As the court in Wise v. Clapper (1968......
  • Vallely Investments, L.P. v. Bacc, No. G026984.
    • United States
    • California Court of Appeals
    • April 26, 2001
    ...with both principal and surety but before that, he is not subject to the surety's defenses. (Westinghouse Credit Corp. v. Wolfer (1970) 10 Cal.App.3d 63, 68, 88 Cal.Rptr. 654; Rest.3d Suretyship and Guaranty, § 32, subd. (3)(a).) As the Restatement explains: "It would be unfair to an oblige......
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    • United States
    • Court of Appeals of Washington
    • July 31, 1989
    ...position of surety as to the party assuming the debt." (Emphasis added.) Smiley, at 212-13. Accord, Westinghouse Credit Corp. v. Wolfer, 10 Cal.App.3d 63, 66, 88 Cal.Rptr. 654 (1970); Twombley v. Wulf, 258 Or. 188, 482 P.2d 166 In Smiley, the plaintiff sold laundry equipment to the defendan......
  • Lopez v. Superior Court
    • United States
    • California Court of Appeals
    • February 26, 1986
    ...on the part of a party's attorney or the attorney's total failure to represent the client. (Westinghouse Credit Corp. v. Wolfer (1970) 10 Cal.App.3d 63, 69, 88 Cal.Rptr. 654.) If the attorney has not totally failed to represent the client, but has been guilty of inexcusable neglect, relief ......
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