SUNRU CHANG v. CARSON ESTATE COMPANY (1958)

This is an appeal by defendant from an order made under section 473, Code of Civil Procedure, setting aside a judgment of dismissal and permitting plaintiff to file a third amended complaint.¹

On September 18, 1957, the court sustained defendant's demurrer to plaintiff's second amended complaint and gave ten days in which to file an amended complaint. On that same date a substitution of attorneys was executed by which plaintiff undertook to represent herself. No amended complaint having been filed in the time allowed, counsel for defendant served notice (together with an affidavit and points and authorities) that on November 7, 1957, he would make a motion to dismiss the action. Plaintiff thereupon employed Ven O. Fahrney, Esq., to represent her, and delivered to him the notice of motion and papers in relation thereto. According to Fahrney's affidavit, he immediately called defendant's attorney and arranged for a continuance of one week for the reason that he would be out of the county on November 7, the date set for the hearing on the motion. He further states in his affidavit that it was agreed that he (Fahrney) would prepare a stipulation for the continuance; that it would not be necessary for him to be present; and that defendant's counsel would present the stipulation to the court. Fahrney informed defendant's attorney at that time that he would ‘attempt to amend the complaint.’ He prepared the stipulation continuing the matter to November 13 and forwarded it to defendant's attorney. Fahrney relied on this arrangement and was not present on November 7 for the hearing. Upon returning to his office on November 12 Fahrney had a letter from defendant's attorney to the effect that due to the court's refusal to continue the matter unless it was to a date early in December, the matter was submitted and that an opportunity would be afforded him to take action prior to decision. No time was fixed within which he was to take such action. The court, however, on Friday, November 15, granted defendant's motion to dismiss. On Monday, November 18, Fahrney apparently without any knowledge of the court's action, filed plaintiff's third amended complaint, points and authorities, and affidavit in opposition to defendant's motion to dismiss.

Thereafter, on November 27, plaintiff filed notice of motion, pursuant to section 473, Code of Civil Procedure, which was accompanied by an affidavit and points and authorities, to set aside the order of November 15 dismissing the action. She also sought permission to file the pleading theretofore submitted, viz., the third amended complaint. The motion was not only based on the attached affidavit and points and authorities but also on the records and files in the case. On December 3 plaintiff filed an amended notice of motion. Counsel for defendant filed an affidavit in opposition to plaintiff's motion. On December 9 the court granted plaintiff's motion and allowed defendant ten days to plead. It is from the order granting plaintiff's motion that defendant appeals.

Defendant argues that plaintiff's original and amended notice of motion to vacate the order of dismissal was insufficient under the provisions of sections 473 and 1010 of the Code of Civil Procedure. Section 473 provides, inter alia, that ‘[a]pplication for such relief must be accompanied by a copy of the answer or other pleading proposed to be filed therein * * *.’ Although it does not appear whether a copy of the proposed third amended complaint was physically attached to the notice of motion, it was specifically referred to and identified so that the substantive requirements of section 473 were satisfied.

Section 1010 states in part that a ‘notice of a motion * * * must state * * * the grounds upon which it will be made * * *.’ Assuming, without deciding, that plaintiff's notice of motion was deficient in this respect, as defendant did not raise this issue below and in fact filed an affidavit in opposition to plaintiff's motion, he is deemed to have waived any objections in this regard which he may have had. Hecq v. Conner, 203 Cal. 504, 505–506, 265 P. 180; Perez v. Perez, 111 Cal.App.2d 827, 828, 245 P.2d 344. In the Hecq case, supra, the court stated at page 506 of 203 Cal., at page 181 of 265 P., that ‘[s]ection 1010 of the Code of Civil Procedure, requiring a notice of motion to state ‘the grounds upon which it will be made,’ is for the benefit of the party upon whom the notice is served. Being for his benefit he can, of course, waive its requirement. By failing to object to the hearing of the motion at the time it was noticed to be heard, the appellants impliedly waived this defect in the notice itself. (Citations.)'

Next defendant argues that the notice of motion was not accompanied by an affidavit of merits and that the plaintiff's complaints, including her proposed third amended complaint, fail to state a cause of action. An affidavit of merits is not required where a verified amended complaint is filed prior to or with the filing of the notice of motion. As stated in Waybright v. Anderson, 200 Cal. 374, 380, 253 P. 148, 150, ‘It is true that affidavits of merits were not filed herein, but under the doctrine of Sampanes v. Chazes, supra, [54 Cal.App. 612, 202 P. 462], the service and filing of verified amended complaints rendered unnecessary the presentation and filing of affidavits of merits.’ As to whether the verified amended complaint states a cause of action, this is a question to be decided by the trial court and not by this court in the present proceeding. Waybright v. Anderson, supra; Sheehan v. Pioneer Lucky Strike Gold Min. Co., 11 Cal.App.2d 530, 531–532, 54 P.2d 72.

Defendant further argues that plaintiff has failed to make a sufficient showing of mistake, inadvertence, surprise, or excusable neglect. It is well settled that a motion to set aside a default judgment or dismissal rests with the sound discretion of the trial court and an appellate court will not disturb the trial court's determination in the absence of a clear showing that the trial court abused its discretion. Waybright v. Anderson, supra; In re Estate of McCrae, 133 Cal.App.2d 634, 636–638, 284 P.2d 914; Fickeisen v. Peebler, 77 Cal.App.2d 148, 151, 174 P.2d 883. Furthermore, whenever possible, the law favors a hearing on the merits. Bollinger v. National Fire Ins. Co., 25 Cal.2d 399, 407, 154 P.2d 399; Reid v. Koeslag, 106 Cal.App.2d 729, 734, 236 P.2d 192. Therefore, an appellate court listens more readily to an appeal from an order denying relief than to one granting relief. Buck v. Buck, 126 Cal.App.2d 137, 142, 271 P.2d 628; Garcia v. Garcia, 105 Cal.App.2d 289, 291, 233 P.2d 23; Hambrick v. Hambrick, 77 Cal.App.2d 372, 377, 175 P.2d 269. In this regard, the court in the Waybright case, supra, 200 Cal. at page 377, 253 P. at page 149, stated that ‘appellate courts are ‘much more disposed to affirm an order when the result is to compel a trial upon the merits than it is when the judgment by default is allowed to stand, and it appears that a substantial defense could be made.’ (Citations.)'

The affidavits in support of plaintiff's motion, noted in the statement of facts, make a sufficient showing within the purview of section 473 so that it can not be said that the trial court abused its discretion. Plaintiff's counsel, relying on the stipulation for a continuance, was not present in court when the matter was submitted and therefore did not then have an opportunity to argue the matter. Furthermore, within a reasonable time under the circumstances, as no time had been fixed within which he was to file his points and authorities and any opposing affidavits, and without apparent knowledge that defendant's motion had been granted, Fahrney filed points and authorities, an affidavit in opposition to the motion and a proposed amended complaint. Under these circumstances, it was not an abuse of discretion for the trial court to find that the dismissal was taken against plaintiff as a result of mistake, inadvertence, surprise or excusable neglect.

Lastly, defendant argues that as plaintiff did not file her amended complaint within the time allowed, she was in default, and should have requested not only to have the dismissal set aside but also to be relieved of default. Defendant overlooks the distinction between a dismissal under section 581 subd. 3, and a default judgment under 585 of the Code of Civil Procedure. In the former no technical default is entered while in the latter the code provides for the entry of both a default and then a judgment. Therefore, in the instant case, there was no default entered from which plaintiff should or could have requested relief and it was sufficient for her to move to have the dismissal set aside.

The order setting aside the judgment of dismissal is affirmed.

FOOTNOTES

1.  The order inadvertently allows plaintiff to file her ‘Answer.’ This was due to the error of plaintiff's then counsel in referring in his notice of motion to the proposed pleading as an answer rather than as the third amended complaint, which designation it bore. No one was misled.

FOX, Presiding Justice.

HERNDON, J., concurs. ASHBURN, J., dissents.