Plaintiff Transit Ads, Incorporated, a California corporation, appeals from an order setting aside an entry of default and a default judgment which plaintiff obtained against the defendant Tanner Motor Livery, Ltd., for $11,275 and $23.55 costs, in an action for breach of contract.
Upon reviewing the record and applicable rules of law, we have concluded that the order was granted in abuse of discretion and that it should be reversed.
"`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
It was held in Kalmus v. Kalmus (1951) 103 Cal.App.2d 405, 414 [230 P.2d 57], where a party asked for a continuance of trial upon her representation that she was too ill to travel across country to appear for trial, that "[i]llness of a party does not ipso facto require the granting of the motion.... Because of the necessity for orderly, prompt and effective disposition of litigation and the loss and hardship to the
The policy that the law favors trying all cases and controversies upon their merits should not be prostituted to permit the slovenly practice of law or to relieve courts of the duty of scrutinizing carefully the affidavits or declarations filed in support of motions for relief to ascertain whether they set forth, with adequate particularity, grounds for relief.
The undisputed facts as established by the record on appeal, by the declaration of attorney Richard L. Crail (hereafter "Crail") accompanying his notice of motion for relief from default and default judgment, filed April 25, 1966, by the declaration of plaintiff's counsel, Gordon and Weinberg by Donald M. Lasser (hereafter merely "Lasser") in opposition to the grant of the motion, filed April 29, 1966, and by
Plaintiff Transit Ads, Incorporated, filed this action against the defendant Tanner Motor Livery, Ltd. (hereafter "Tanner") on August 4, 1965, alleging a breach of contract granting plaintiff the exclusive right to place advertising within Tanner's buses for a period of three years from March 10, 1964, in that, unknown to the plaintiff, Tanner had granted such rights previously thereto to an Evelyn McKenzie covering a period which would carry through to December 31, 1964, and in that such contract prevented plaintiff from enjoying the benefits of its contract with defendant Tanner.
Tanner was served with summons and complaint on August 6, 1965.
On or about August 16, 1965, Crail called Lasser informing Lasser that he (Crail) was representing Tanner and that he desired an extension of time within which to answer the complaint. Lasser granted an extension, requesting Crail to confirm the arrangement by letter. Crail did not write, so Lasser wrote Crail on September 7, 1965, giving Crail another extension to September 20, 1965. A further extension to September 27, 1965, was granted. On October 19, 1965, Lasser wrote to Crail advising him that unless defendant's answer were filed within one week from the date Crail received the letter, a default would be entered against Tanner. Crail received the letter October 21, 1965, by certified mail.
No answer having been filed by November 15, 1965, Lasser on that date filed his request to the clerk for an entry of default. A default was entered on November 17, 1965.
About a month thereafter (on December 13, 1965) Crail called Lasser's office. Since Lasser was out of the office, Crail left a message asking Lasser to call him. Lasser returned the call on December 14, 1965. This time, Crail was not in his office. Later the same day (December 14, 1965) Crail called Lasser and informed him that he (Crail) had been very ill and that he had requested another attorney, Faucett, to prepare the answer, that he would make every effort to have the answer in Lasser's office that day or the next, and asked Lasser to agree to the entry of default being vacated. Lasser agreed to vacate the entry of default if defendant's answer were filed that date, with service of a copy upon Lasser.
Crail states, without assigning the reason therefor, that he
Faucett took the file to his office, which is some distance from Crail's, and read all of the documents and papers therein. Faucett prepared a longhand draft of the answer setting up general denials to the averments of plaintiff's complaint, but he could not ascertain facts necessary to set up that which he characterizes as a proper affirmative defense.
Crail and Faucett made an appointment to get together between Christmas and New Year's to complete the drafting of the answer. Crail did not keep the appointment, advising Faucett that he was unable to honor the appointment due to his physical condition.
Another appointment was set up for a Saturday morning early in January 1966, but Crail again was unable to keep it due to the condition of his health.
Because of the pressures of his own practice, Faucett inadvertently laid aside the file until February when Faucett and Crail met to finalize the answer. It was at this meeting that Faucett was first apprised of the urgency of the matter.
Not having heard from Crail, who did not contact Lasser after the December 14, 1965, conversation until the following March 15, 1966, Lasser proved up his default on February 1, 1966. Judgment was rendered against the defendant for $11,275 and $23.55 costs on February 15, 1966, and was entered in the judgment book the following day, February 16, 1966.
Uninformed that a default judgment had already been obtained and entered, Faucett completed the answer on March 16, 1966, and then telephoned Lasser's office. Attorney Stephen M. Lachs answered and stated that Lasser was in Europe at the time. Faucett asked if they (plaintiff's counsel) would stipulate to a vacation of the entry of default and consent to the answer being filed at that time. Lachs informed Faucett that a default judgment had already been entered, but that Lasser was attempting to have the judgment modified because Lasser thought the sum awarded was insufficient, and that Lasser had filed points and authorities with the court for that purpose. Lachs informed Faucett that a note on the file
On March 30, 1966, Lasser contacted both Crail and Faucett, both of whom asked Lasser to agree to a vacation of the default and the default judgment. Lasser indicated that he could not do so without his client's consent, but would check with his client.
On April 12, 1966, Faucett and Crail phoned Lasser to ascertain whether Lasser's client had reconsidered the matter. Lasser replied that the client would not permit a vacation of the judgment, but would be amenable to talking settlement.
Crail then filed his notice of motion for relief from default and default judgment on April 25, 1966. The declarations earlier referred to were filed by Crail, Lasser, and Faucett, respectively. On May 12, 1966, the trial court granted relief as prayed for and permitted the proposed answer to be filed and to be deemed served the same date. Plaintiff appealed from that order.
No affidavit of merits was filed. The verified answer is short, two and one-fourth pages (32-line legal paper). It contains only denials, except for an affirmative defense which admits the making of the contract with plaintiff, but alleges that defendant Tanner believed that it was not under an exclusive advertising contract with anyone else except upon a month-to-month basis, whereas in fact it was under an exclusive contract running until December 31, 1964, with Evelyn McKenzie. It avers, without setting forth any other facts, that this was a mutual mistake on the part of both parties.
The only valid basis for relief from default on grounds of excusable neglect is Crail's claim that he was physically disabled from compliance with the normal procedural requirements because of his illness. We, therefore, set forth his statements in this regard.
In his original declaration, Crail states: "that he was incapicatated [sic] intermittently during this period and was relying upon the statement that the plaintiff's counsel would set aside the default upon presentation of an answer and further relying upon the undersigned's belief that Mr. Faucett would file the answer being unaware at the time that he had insufficient facts to proceed therewith."
Crail's declaration does not state who the diet doctor was or whether he was confined to bed at home or in any hospital. A doctor's declaration was not presented. Crail's declaration does not state whether his condition was one which was developing gradually at the time he accepted responsibility for the case, or a supervening one which developed suddenly at the end of September. The facts stated show that even before going on the diet, Crail did not think enough of Lasser's favor of an extension of time to write the letter of confirmation requested.
Crail was able to go to his office at least intermittently. He made no effort to contact his client, Tanner Motor Livery, Ltd., to inform it of his condition and to explore possibilities of its obtaining another counsel to take over the responsibility for handling the case. No showing was made that Tanner, which runs the Gray Line in Southern California, was an entity so impecunious that its financial condition would not permit its retaining another counsel if Crail were incapacitated due to illness.
Crail's declarations also disclose that he had attorney Faucett available to assist him. He sets forth no impediment to his contacting Faucett by telephone. He apparently had the ability to pull files from his office. Why did he not contact Faucett earlier, and when he did, why did he not inform Faucett of the urgency of filing the answer? No reason is given for the time lapse in contacting Faucett between December 14 and just before Christmas. Would not a reasonably prudent attorney in Crail's position have contacted either or both Lasser and Faucett periodically after his conversation with Lasser on December 14, 1965? Had Crail advised Faucett of the emergency, Faucett could have filed an answer with just denials to prevent the default. Amendments to pleadings are liberally granted and therefore such an answer could have been amended after filing. Faucett's delict in not contacting Crail due to inadvertence engendered by the pressure of his own practice, while understandable, was not excusable neglect. (Fairfield v. Ahlstrom (1962) supra, 206 Cal.App.2d 590, 592.) Even by Crail's own words, Lasser was at all times "out of courtesy to counsel ... liberal in further extending time to answer" after the grant of the first extension. Why did he not check with Faucett and then contact Lasser to explain Faucett's predicament, if, in fact, he was in a predicament over an affirmative defense? There is no showing
As to the timeliness of Crail and Faucett in moving for relief from default, under the circumstances of this case the trial court's implied finding that an unreasonable period of time had not elapsed from discovery of the entry of the default judgment, did not constitute an abuse of discretion.
However, the fact that no affidavit of merits was filed with the moving papers is a glaring omission, absent a verified pleading that can be treated as a substitute therefor. This does not appear to have been specifically raised by Lasser in the trial court. It is further uncertain whether plaintiff's reference in its brief to the answer filed is to call our attention to the fact that it does not constitute a showing that defendant Tanner has a bona fide defense. However, appellate courts cannot avoid noticing pleadings which have no legal validity. (Sunru Chang v. Carson Estate Co. (1959) supra, 168 Cal.App.2d 110, 113.) The answer filed in this case with the motion is tantamount to an admission of liability, and that the denials, except as to the amount of damages, are sham and frivolous. We feel that insufficient facts are alleged in the affirmative defense to support the proposition that the mistake, if any, was mutual. Furthermore, to constitute a valid defense to a contract a mistake of fact must not have been caused by the neglect of a legal duty on the part of the person claiming mistake. (Civ. Code, § 1577, subd. 1;
Considering the foregoing circumstances and the incomplete showing made by the party seeking relief from default, the granting of the motion was an abuse of discretion.
The order vacating default judgment and entry of default is reversed.
Kaus, P.J., and Reppy, J., concurred.