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

BENJAMIN et al. v. DALMO MFG. CO. et al.

Civ. 13337.

Decided: June 30, 1947

Wolff & Wolff and Norman Sanford Wolff, all of San Francisco, for appellants. Hilary H. Crawford and Walter Slack, both of San Francisco, for respondents.

The trial court set aside a default and a default judgment taken against defendant corporation. Plaintiffs appealed.

In an action on certain common counts, defendant corporation was served with summons and complaint by the delivery on December 10, 1945, to its president and secretary respectively, of copies in the County of San Mateo, the county of the corporation's residence. The action was brought in the City and County of San Francisco, hence the defendant had thirty days to appear. On the 36th day, January 15, 1946, defendant having failed to appear in the action, plaintiffs caused its default, and default judgment against defendant in the sum of $9,537.13 plus costs to be entered. On May 1, 1946–103 days from the entry of the default judgment, defendant served and filed notice of motion to set aside the default. This motion was heard on May 9th and forthwith granted by the court.

The motion was made on the grounds that the default and default judgment were entered through the ‘mistake, inadvertence, surprise and excusable neglect of defendant and its officers, to-wit, its Secretary and its President.’ It was based on the affidavits of these two officers. The affidavit of the president set forth as the reason for the failure of the defendant to appear in the action, that upon receipt of the copies of summons and complaint by him and by the secretary, he directed the secretary, who besides being the secretary of the corporation was also his private secretary, to immediately forward the copies of summons and complaint to the corporation's attorney. On his information and belief the president stated that the secretary ‘misunderstood said directions so given to her by the affiant and understood affiant to say that she, [the secretary] * * * was to file said papers in the office files; that as a result of such misunderstanding the said * * * [secretary] failed to forward said summons and complaint’ to the corporation's attorney; that the president knew nothing of the default until on or about January 16th when he received a letter from the corporation's attorney to the effect that the attorney had noticed that the preceding day a judgment had been taken against defendant. Then follows the usual affidavit of merits. The affidavit of the secretary was almost identical with that of the president, except that she stated positively rather than on information and belief, as did the president, that she misunderstood his directions and ‘understood him to say that affiant was to file said papers in the office files; that as a result of such misunderstanding the affiant failed to forward said summons and complaint’ to the attorney. She, too, learned for the first time of the default on January 16th from the attorney's letter, and on January 17th forwarded the papers to him.

It will be noted that the default was known to the president and secretary of the defendant corporation the day after it was taken, and on the 2d day the copies of summons and complaint were forwarded to the corporation's attorney. No explanation, by affidavit or testimony, was made in the trial court of the failure to take any proceedings whatsoever to set aside the default until 101 days had elapsed from the time the papers were forwarded to to the attorney.

As the court granted the motion to vacate, this court cannot interfere ‘Unless the order of the trial court, and the record, indicate a clear abuse of discretion.’ Bonfilio v. Ganger, 60 Cal.App.2d 405, 410, 140 P.2d 861, 864. ‘The appellate court will therefore be less inclined to reverse an order granting, than one refusing, an application to open a default.’ Jergins v. Schenck, 162 Cal. 747, 748, 124 P. 426.

Section 473, Code Civ.Proc., the section under which the motion to vacate was brought ‘is remedial and should be liberally construed and applied to the end that one who has a meritorious defense may be given an opportunity to present it. Nicoll v. Weldon, 130 Cal. 666, 667, 63 P. 63.’ ‘In California, following the general common law rule, to modify or vacate judgments during the term, the power of courts to control their judgments is regulated by statute specifying a time limit and leaving the matter to the discretion of the court in the interest of substantial justice to set aside its judgments. Code Civ.Proc., sec. 473; Olivera v. Grace, 19 Cal.2d 570, 122 P.2d 564, 140 A.L.R. 1328; Bodin v. Webb, 17 Cal.App.2d 422, 62 P.2d 155.’ Bonfilio v. Ganger, supra, 60 Cal.App.2d at page 410, 140 P.2d at page 864. ‘The discretion intended, however, is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. In a plain case this discretion has no office to perform, and its exercise is limited to doubtful cases, where an impartial mind hesitates. If it be doubted whether the excuse offered is sufficient or not, or whether the defense set up is with or without merit in foro legis, when examined under those rules of law by which Judges are guided to a conclusion, the judgment of the Court below will not be disturbed. If, on the contrary, we are satisfied beyond a reasonable doubt that the Court below has come to an erroneous conclusion, the party complaining of the error is as much entitled to a reversal in a case like the present as in any other.’ Bailey v. Taaffe, 29 Cal. 422, 424.

In view of the foregoing rules, did the court here abuse its discretion in vacating the default? Had the defendant moved promptly upon the discovery of the default, while its excuse—that the copies of summons and complaint were inadvertently placed in the office files instead of forwarded to the attorney for action—is a bit on the weak side (see Slater v. Selover, 25 Cal.App. 525, 144 P. 298, where a partner served gave the papers to another partner with instructions to have the action defended, and the latter placed the papers in a pigeonhole in his desk and forgot them, the court holding that this excuse was not sufficient), still it is doubtful whether this court would be justified in holding that in setting aside the default there had been an abuse of discretion. But what of the 101 days of unexplained delay? Section 473, Code Civ.Proc., provides that application for relief ‘must be made within a reasonable time,’ in no case exceeding six months after the judgment was taken. (Italics added.) No case has been cited by respondent, and our research has failed to disclose any, in which a court has set aside a default where there has been an unexplained delay of any length of time, let alone a delay of over three months. In all the cases we have found there has been some explanation, by affidavit or testimony, of the delay, and the court has determined whether such explanation was sufficient to justify the setting aside of the default. A somewhat similar delay in bringing the proceeding to vacate the default to that in this case occurred in Smith v. Pelton Water Wheel Co., 151 Cal. 394, 90 P. 934. In that case two months elapsed after the attorney learned of the default. The court there said, 151 Cal. at page 397, 90 P. at page 935: ‘The only excuse given for the delay in instituting proceedings to vacate the default and judgment was that given by the senior member of the San Francisco firm, to the effect that for over two months after learning of the default and judgment he was suffering from ill health, and was not in regular attendance at his office, and could only attend to his business occasionally; that thereafter he was engaged to the utmost of his capacity in court work and other business that needed prompt attention; that his partner was not familiar with the facts, and was not in the habit of handling litigation of this character; and that ever since the entry of default and judgment he had been in frequent correspondence with his associate in Los Angeles, and from time to time had explained to him that the papers for the motion were in course of preparation, and why they were delayed.’ In holding that this was not a sufficient excuse for the delay (it will be noticed that, contrary to the situation in our case, an excuse was offered for the delay), the court discussed the time limitation set forth in sec. 473, Code Civ.Proc., saying, 151 Cal. at pages 397, 398, 90 P. at page 935: ‘The six months' limitation there provided is simply a limitation upon the power of the court to grant any relief, regardless of any question either as to the merits of the application, or as to whether or not the application was made within what might be held to be a reasonable time under the circumstances. Under this statute, in addition to being made within the six months' period, the application must be made within ‘a reasonable time,’ and what is a reasonable time in any case depends upon the circumstances of that particular case.' ‘The delay of nearly four months in the matter of making the application, after full knowledge of the facts, accompanied by the failure to give any intimation to the opposing party of an intention to so apply, certainly required some satisfactory explanation to warrant a conclusion that the application was made within a reasonable time.’

Respondent relies upon John A. Vaughan Corp. v. Title Ins. etc. Co., 123 Cal.App. 709, 12 P.2d 117, to the effect that slight evidence only will be required to justify a court in setting aside a default where there is no showing that the other party has suffered any prejudice, or that injustice will result from a trial of the case upon its merits. However, in that case an explanation of the failure to appear was made which the court held to be sufficient to justify the setting aside of the default. The application to vacate the judgment was made and the judgment vacated by the court the very day upon which the defendants first learned of the rendition of the default judgment against them. In laying down the rule above mentioned, the court says (123 Cal.App. at page 711, 12 P.2d at page 117) that it applies ‘Where a party in default makes seasonable application to be relieved therefrom.’ (Italics added.)

On page 4 of its brief respondent states: ‘Delay in commencing a proceeding to vacate a default will not prevent it being set aside, unless the plaintiff shows that he has been prejudiced by the delay. (Bonfilio v. Ganger, 60 Cal.App.2d 405, 407, 140 P.2d 861.)’ However, the Bonfilio case does not go to the extent respondent claims for it. It does not hold that an unexplained delay in commencing a proceeding to vacate a default will be excused even though there is nothing to show that the plaintiff has been prejudiced by the delay. In the Bonfilio case the delay of almost six months was fully explained. The decision even holds (60 Cal.App.2d at page 408, 140 P.2d at page 863) that ‘From the facts and circumstances presented, the court was justified in concluding that there was an agreement to delay the prosecution of the action’; also (60 Cal.App.2d at page 409, 140 P.2d at page 864) that ‘the neglect was excusable by reason of a change in the attorney's office personnel, as averred in affidavits.’ The court uses this language, 60 Cal.App.2d at page 410, 140 P.2d at page 865: ‘There is no claim that appellant has been prejudiced as a result of the order vacating the judgment, or injured as a result of delay in the application therefor,’ but nowhere does it hold that the fact that it has not been shown that prejudice would result to the plaintiff, is sufficient basis for setting aside a default where the delay in bringing the proceeding to vacate is unexplained, or the excuse insufficient.

In Gorman v. California Transit Co., 199 Cal. 246, 248 P. 923, cited by respondent, the summons was served on the secretary of the defendant corporation who at once delivered it, with the file relating to the subject matter of the suit, to the manager of the traffic department with instructions to deliver them to the president of the corporation on his return to his office, which was expected within a few days. An employee, seeing the file on the traffic manager's desk, inadvertently took it from the desk and returned it to the compartment in which such files were kept. Default was taken at the end of the thirty days. Three days thereafter the company was notified of the default. Immediately the matter was referred to the attorney for the company who promptly brought a motion to vacate the default. Although the court held that the facts justified the setting aside of the judgment, it uses this language, 199 Cal. at page 248, 248 P. at page 924: ‘It is true that the discretion thus to be exercised by the trial court is not capricious or arbitrary, but is an impartial discretion which must be guided and controlled in its exercise by fixed legal principles, and it should, therefore, appear that something more than mere inadvertence or neglect without reasonable excuse or justification existed, and that the inadvertence or neglect in question was not the result of mere forgetfulness on the part of the person or official charged with the duty of responding to the legal process in due time, but that such inadvertence or neglect was based upon other circumstances which would suffice to render the same excusable.’ (Italics added.)

In Downing v. Klondike Min. etc. Co., 165 Cal. 786, 134 P. 970, a clerk in the attorney's office mistakenly placed the copy of the second amended complaint in the files of another action. At the time there were five actions pending between the same parties, and the mistake was understandable and excusable. While the decision does not give the length of time elapsing between the discovery of the default and the application for relief, its failure to state it would indicate that the time was short.

In Morgan v. Brothers of Christian Schools, 34 Cal.App.2d 14, 92 P.2d 925, the attorney for the defendant believed that the school, which was close to the county line, was in a different county from the one in which the suit was brought, and even wrote to the plaintiff's attorney to that effect. On this mistaken assumption he believed that defendant had thirty days in which to appear. Default was taken at the end of ten days. Again here, the exact date when application for relief was made is not given, but it is obvious from a reading of the case that it was done before the expiration of the thirty day period which counsel mistakenly believed he had within which to appear. This language from that case (34 Cal.App.2d at page 18, 92 P.2d at page 928) is significant: ‘As shown by the numerous cases cited in respondent's brief, in the determination of motions to set aside defaults, mistakes of attorneys and those of parties to the action are measured by the same ‘rules.’ If it be claimed that the 101 days' delay herein was the mistake of the attorney, the rule above mentioned requires that some explanation of the delay be given. The delay of the client up to the point where it forwarded the papers has been explained, but from that point on there is deep silence. In respondent's brief (p. 21) the following appears: ‘If there was a time lag, between the time the papers were forwarded to the attorneys and the time when the proceeding was commenced, it was no fault of the defendant. The Court must be well aware of the extraordinary burdens placed on lawyers during the war years, when so many of the members of the bar were away in war service. Few lawyers were not greatly pressed by the extra demands placed upon them in those trying times.’ True, the court is aware of the burdens placed on lawyers during the war years, yet there is not one word in this case that the failure to act within the 101 days was due to this cause. The above statement is merely a general one, and does not purport to claim that the delay here was caused by that situation. Moreover, the explanation for the delay should have been made at the hearing of the motion. If such were the situation, no reason is given why an application to either court or counsel for an extension of time was not made. While no counter affidavit was filed by appellants showing that any prejudice would have resulted to them from the setting aside of the judgment, none was required until defendant had at least made some excuse for the delay.

In the following cases it was held to be an abuse of discretion for the trial court to set aside the default.

In Bailey v. Taaffe, supra, the attorney claimed delay in answering was due to the fact that because of the complicated condition of defendants' title more time was required to prepare the answer than is required in ordinary cases, and also that the attorney was compelled during a portion of the time to be absent from town.

In Shearman v. Jorgensen, 106 Cal. 483, 39 P. 863, the attorney thought he had filed the answer but inadvertently did not file it. The court there said, 106 Cal. at page 485, 39 P. at page 864: ‘The reasons and the causes and the excuses for the inadvertence are the matters which concern the court, and these are not stated.’ (Emphasis added.)

In Redding etc. Min. Co. v. National Surety Co., 18 Cal.App. 488, 123 P. 544, the attorney for defendant had been liberal and courteous in his treatment of plaintiffs' counsel and assumed default would not be taken against him.

Salter v. Selover, supra (the facts are heretofore set forth).

In Dunn v. Standard Acc. Ins. Co., 114 Cal.App. 208, 299 P. 575, the attorney for defendant made practically no showing at all for his failure to file answer after notice of overruling demurrer.

In Weinberger v. Manning, 50 Cal.App.2d 494, at page 498, 123 P.2d 531, at page 534, the defendant's failure to pay attention to the summons was ‘more reprehensible than that of one who is guilty of gross negligence only.’ This, of course, does not apply to the situation here, but the case is included in those in which it was held that the court abused its discretion in setting aside the default.

In Durbrow v. Chesley, 24 Cal.App. 416, 141 P. 631, defendant's attorney failed to file an appearance due to his claim that he had understood that this action was to be consolidated with other actions and to be tried as one action. There the notice of motion to set aside the default was filed the same day that the default was entered.

In Gill v. Peppin, 41 Cal.App. 487, 182 P. 815, the court held that no reasons were given for the alleged inadvertence in permitting the default to be taken.

In Ross v. San Diego Glazed Cement Pipe Co., 50 Cal.App. 170, 194 P. 1059, the attorney received service of the cross-complaint and instructed his stenographer to place it in the office files in the action. Nothing further was done. The attorney died the day the default judgment was taken. The court said, 50 Cal.App. at page 173, 194 P. at page 1060: ‘The fact that by reason of the attorney's death it became impossible to obtain his explanation of his apparent negligence cannot be accepted as raising a presumption that such negligence was in fact excusable.’

In the following cases the facts were held to show inexcusable neglect.

In Shay v. Chicago Clock, Co., 111 Cal., 549, 44 P. 237, summons was served on the secretary of the defendant corporation on May 18th. He delivered it to the president of the corporation on May 2d. The following appears, 111 Cal. at page 551, 44 P. at page 237: ‘The president read the papers that day, and observed their date, but, without making any inquiry as to the time when they were served, kept them in his possession until after the default had been entered. He stated, at the hearing of the motion, that he did not send for his attorney, or send the papers to him, but kept them, thinking that his attorney would be in every day, and therefore waited until he should come, and that, when he did see him, the default had been entered.’

In Coleman v. Rankin, 37 Cal. 247, defendant, upon receipt of copy of summons while in attendance as a witness in the district court, placed it in his hat and lost it.

In Williamson v. Cummings etc. Co., 95 Cal. 652, 30 P. 762, the attorney incorrectly marked on the copy of the summons the date of service as April 26, whereas the correct date was April 25th. Two days after default the motion to vacate the default was made.

In view of the fact that no explanation whatever has been made of the 101 days' delay, we have no alternative other than to hold that vacating the default on the showing, or rather lack of showing, here made, constituted an abuse of discretion.

The judgment is reversed.

BRAY, Justice.

PETERS, P. J., and WARD, J., concur.