STONE, Acting P.J.
Defendants appeal from an order denying their motion, made pursuant to section 473 of the Code of Civil Procedure, for an order vacating entry of default, and to set aside a default judgment. They also noticed a late appeal from the default judgment, which is hereby dismissed.
The record consists of a settled statement and exhibits certified by the trial judge to be true, in lieu of a reporter's transcript and a clerk's transcript. The complaint, seeking $27,758.96 alleged to be the reasonable value of work, labor and services performed by plaintiffs for defendants, was filed in Yolo County on February 8, 1966. Defendants were served with a copy of summons and complaint in Monterey County, their place of residence, on February 14. When they failed to appear in the action within 30 days thereafter, a default was taken and a default judgment was entered on March 18, 1966. A motion to set aside the default and the default judgment was filed September 15, 1966, three days short of the maximum six months' period allowed for the filing of such a motion under section 473.
Defendants assert that in denying their motion, the trial court abused its discretion.
Thus the moving party seeking relief from default under section 473 faces two hurdles, and we turn to the first, whether defendants demonstrated that their failure to appear within 30 days after service of summons and complaint was due to "mistake, inadvertence, surprise or excusable neglect."
On March 2, 1966, defendants consulted their attorney, Robert W. Tuttle, who requested them to obtain additional information with a view to filing a counterclaim. Tuttle did not contact either of the plaintiffs or their attorneys, or in any manner let them know he was acting on behalf of defendants. It is significant that he did not seek an extension of time for defendants to appear in the action, from either plaintiff's counsel or the court.
Plaintiffs, not hearing from defendants and unaware that
Defendants contend that their failure to appear comes within the term "excusable neglect and mistake" in that plaintiffs' letter of February 16, concluding: "We will await word from you, or if you prefer, your attorneys should contact the offices of Rowland, Paras, and Clowdus, who are handling this for us," misled them to believe that plaintiffs would allow them a reasonable period of time to straighten out the matter, and that there was no urgency. The letter is defendants' only excuse for not communicating with the plaintiffs or, in accordance with the alternative suggestion in the letter, having their attorney communicate with plaintiffs' named attorney.
Defendants' contention that the letter implied they should have time to communicate with plaintiffs or have their attorney communicate, must be viewed in the light of circumstances existing when the letter was written. There had been a prior demand for payment; plaintiffs, after waiting approximately a month without receiving an answer, filed an action to enforce the demand. The response was tender of a lesser amount, which plaintiffs returned in the above-mentioned letter. When no reply was received by plaintiffs or their attorney for over 30 days after the letter was written, the default was entered. In the face of the demand letter, followed by the filing of a complaint seeking a large amount of money from defendants, it is difficult to say that the delay of defendants and their attorney in not appearing in the action within the time allowed by law was excusable under any of the grounds mentioned in section 473.
However, assuming, without deciding, that the trial court erred in not ruling that the failure to appear in the action within 30 days was justifiable within the purview of section 473, nonetheless defendants had a second hurdle to clear: the burden of showing that their delay in instituting proceedings to set aside the default judgment was excusable.
The chronology of events following Mr. Tuttle's learning by telephone on March 30 that a default judgment had been entered, is as follows: April 12, Mr. Tuttle addressed a letter to Mr. Paras, advising that he had written defendants recommending
"Upon complete reflection, in fairness to my clients, I cannot stipulate to setting aside the default and then allowing you more time to file answers and the like. It is beginning to look as though Mr. Taylor is simply taking an undue advantage of a situation which he himself brought about. And I really have serious doubts as to whether the Court would grant a motion to set aside the default under the circumstances under which it was taken.
"I cannot, therefore, give up a valuable right which my clients have, at least without a fight.
"I suggest therefore that since Mr. Taylor wishes to pursue this course that you file a formal motion."
July 6, nearly two months later, Mr. Tuttle wrote to Mr. Paras stating that Mr. Taylor denied any liability for expense over the original amount of $24,958.96, that defendants had a counterclaim for alleged damages resulting from lack of full performance amounting to approximately $4,500, and that he, Tuttle, would recommend that defendants pay $20,500, the remainder to be resolved by negotiation or litigation, and if that arrangement was not acceptable, defendants would proceed with a motion to set aside the default.
Mr. Paras replied on July 13, pointing out that at one time
Another two months went by before plaintiffs were served with notice of motion filed September 15, to set aside the default. As noted, this motion was filed just three days before the six months' period expired. It was accompanied by a single declaration, that of Mr. Tuttle, in which his principal reason for the delay in both failure to answer the complaint within 30 days and failure to move to set aside the default for nearly six months was that his law partner was vacationing in Europe, "which caused the inevitable backlog of clientele appointments to arise, all to defendants detriment as it now appears, this being one of the major reasons for delay in the various conferences above noted taking place."
The reason "press of business" is not usually accepted as a ground for relief under section 473 is found in Willett v. Schmeister Mfg. Co., 80 Cal.App. 337, at page 340 [251 P. 932]: "Nor is unusual press of business a legal excuse. To accept this as a legal justification for the failure to comply with the statute would be to discourage diligence in the prosecution of appeals and establish a precedent that might lead to vexatious delays."
The trial judge incorporated the following memorandum in his order denying the motion to set aside the default: "The case of Benjamin v. Dalmo Mfg. Co., 31 Cal.2d 523 [190 P.2d 593] is clear authority for the court's decision. In fact, it is so much in point that the Court cannot feel free to do other than deny the motion. Defendants not only slumbered on their rights, but actually appear to have purposely ignored them, if such they ever had. The grounds for setting aside a default judgment do not appear. It would appear that even defendants' attorney could not succeed in getting them to move. At any rate, the affidavits show that there would be little, if any, rights to be asserted. To allow defendants to now litigate a minimal part of the judgment would be unjust to plaintiffs at this time."
The reasoning of the trial judge is supported by the record and we cannot say that the order denying relief constitutes an abuse of discretion.
The order is affirmed.
Gargano, J., concurred.