Wilson v. Goldman

• Decision Date: 02 July 1969
• Citation: 79 Cal.Rptr. 309,274 Cal.App.2d 573
• Court: California Court of Appeals Court of Appeals
• Parties: Woodrow A. WILSON et al., Plaintiffs and Appellants, v. Allen GOLDMAN, Defendant and Respondent. Civ. 9184.

Page 309

79 Cal.Rptr. 309

274 Cal.App.2d 573

Woodrow A. WILSON et al., Plaintiffs and Appellants, v. Allen GOLDMAN, Defendant and Respondent.

Civ. 9184.

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

July 2, 1969.

[274 Cal.App.2d 574] McCray & McCray and Walter McGonigle, Jr., Santa Ana, for plaintiffs and appellants.

[274 Cal.App.2d 575] William C. Powers, Los Angeles, for defendant and respondent.

OPINION

AULT, ^* Associate Justice Pro Tem.

Plaintiffs Woodrow A. Wilson and Mary Jane Wilson appeal from an order setting aside an entry of default and a default judgment against the defendant, Allen Goldman, for $40,000 ($20,000 of each plaintiff), in a personal injury action. The motion to set aside the default was made pursuant to Code of Civil Procedure, section 473, and was principally based upon an affidavit filed by defendant's counsel in which he alleged he had been unable to appear at the trial because he was ill and hospitalized on the trial date and had under-gone major surgery only three days before. The motion, however, was also by its terms based upon 'all papers, records and documents on file * * *.'

The issue as presented by the briefs on appeal is the sufficiency of the affidavits to justify the court in setting aside the entry of default and the default judgment. Since the papers, records and documents on file, referred to in the motion and now in the record before us on appeal, conclusively demonstrate both the entry of the default and default judgment are void and in excess of the court's power and jurisdiction we are not disposed to examine into the sufficiency of the affidavit or to yield to appellants' urging that we reverse the trial court's order vacating and setting them aside.

These records reflect the defendant duly filed an answer to the complaint placing in issue both liability and the damages claimed. After several continuances, the case was finally set for trial on May 22, 1967. Defendant's counsel was properly served with notice of trial. On that date, the case was called and plaintiffs' attorney appeared with his clients ready for trial. Neither the defendant nor the attorney for defendant appeared. Plaintiffs' attorney left the courtroom and attempted to reach defendant's attorney by telephone. He was unable to do so or to obtain any satisfactory explanation for his failure to appear for trial.

When plaintiffs' attorney returned to the courtroom, he advised the court of his telephone conversations and moved the court to enter the defendant's default. The motion was granted. The minute order dated May 22, 1967, reads:

'This case came on regularly for trial. Plaintiff represented by Patrick McCray. No appearance by defendant. Defendant's default entered for failure to appear for trial.'

When asked by the court whether he wished 'to prove up damages', plaintiffs' attorney advised the court 'he would wait to prove up damages at some future date.' No evidence was taken, no trial was held and no continuance was granted. The case obviously was removed from the trial calendar.

Counsel for the plaintiffs waited until September 1, 1967, before he took steps to bring the matter on for hearing. He filed a document entitled 'Memorandum for Setting for Hearing (uncontested matter)' in which he described the nature of the hearing with the words 'Prove up Damages'. On that date the clerk set the hearing for October 16. No copy of the Memorandum for Hearing was served on the defendant or his attorney, nor was any notice of the hearing set for and held on October 16 given to either of them. That hearing, held in the absence of the defendant and his attorney, resulted in the $40,000 default judgment against the defendant. The judgment was signed by the court on October 18, 1967, and entered by the clerk the following day.

Neither the statutes nor the case law of this state permit the entry of a default or the taking of a default judgment under these circumstances.

'* * * a judgment of default can never be given unless the defendant fails to answer.' (2 Witkin, Calif.Proc., 1691.)

Section 585 of the Code of Civil Procedure does not authorize the entry of any default in cases where an answer is on file, Whether the defendant does or does not appear at the time the action is called for hearing. (Warden v. Lamb, 98 Cal.App. 738, 741, 277 P. 867; Code Civ.Proc. § 585; Barberia v. Independent Elevator Co., 133 Cal.App.2d 657, 659, 285 P.2d 91.) Where the defendant who has answered fails to appear for trial 'the plaintiff's sole remedy is to move the court to proceed with the trial and introduce whatever testimony there may be to sustain the plaintiff's cause of action.' (Warden v. Lamb, Supra, 98 Cal.App. 741, 277 P. 868.) In such case a plaintiff is entitled to proceed under the provisions of Code of Civil Procedure, section 594, subd. 1, and he may do so in the absence of the defendant provided the defendant has been given at least 5 days notice of the trial. Section 594 does not authorize the entry of the default in the event the defendant fails to appear, and a hearing held pursuant to that section under such circumstances is uncontested as distinguished from a default hearing. (See Ahmanson Bank & Trust Co., v. Tepper, 269 A.C.A. 394, 401, 74 Cal.Rptr. 774; Code Civ.Proc. §§ 485, 494; Warden v. Lamb, Supra, 98 Cal.App. 738, 741, 277 P. 867.) ¹

Where a defendant has filed an answer, neither the clerk nor the court has the power to enter a default based upon the defendant's failure to appear at trial, and a default entered after the answer has been filed is void (Warden v. Lamb, Supra, 741, 277 P. 867; Barbaria v. Independent Elevator Co., Supra, 133 Cal.App.2d 657, 659, 285 P.2d 91; Miller v. Cortese, 110 Cal.App.2d 101, 104--105, 242 P.2d 84), and is subject to expungement at any time either by motion made pursuant to Code of Civil Procedure, section 473 or by virtue of the court's inherent power to vacate a judgment or order void on its face. (Potts v. Whitson, 52 Cal.App.2d 199, 125 P.2d 947; Reher v. Reed, 166...