Defendant Juan Viguri appeals a default judgment favoring plaintiffs Jade K. and his mother Elizabeth Billick (together K.). Viguri also appeals a prejudgment order denying his motion to vacate default. Viguri further appeals a postjudgment order denying his motion to reconsider the order denying his motion to vacate default. We find Viguri's appeal from the default judgment and the order denying his motion to vacate default must be dismissed as untimely. To the extent the order denying reconsideration may be independently appealable, we affirm such order.
Intervener Truck Insurance Exchange (Truck) appeals an order denying its motion to vacate the default judgment entered against Viguri. We find that appeal to be timely and we reverse the order denying Truck's motion to vacate.
On May 1, 1987, K. sued Viguri for negligence, intentional infliction of emotional distress and professional negligence. K.'s complaint sought damages allegedly resulting from sexual molestation by Viguri.
On May 1, 1987, Viguri was personally served in the San Diego County jail with K.'s complaint.
On July 28, 1987, K. served Viguri with a statement of damages.
On September 4, 1987, at K.'s request, the clerk entered Viguri's default.
On September 30, 1987, through his attorney-in-fact Yolanda Diaz, Viguri in pro. per. filed an answer to K.'s complaint.
On October 23, 1987, Viguri filed a substitution of attorney designating George Ronis as his counsel instead of himself in pro. per.
On November 19, 1987, Truck tendered legal defense to Viguri under a business premises policy with reservation of rights.
On November 20, 1987, the court heard Viguri's motion to vacate default and took the matter under submission. On November 23, 1987, the court issued a minute order denying Viguri's motion.
On November 30, 1987, Viguri filed notice associating as counsel the law firm of Chapin & Brewer provided by Truck. The same day Viguri through Chapin & Brewer noticed a motion to reconsider denial of his motion to vacate default.
On December 1, 1987, the court signed and filed default judgment against Viguri. On December 2, 1987, the clerk entered the default judgment. The default judgment awarded K. $450,000 general damages and $275,000 punitive damages. The default judgment awarded Billick $150,000 general damages.
On December 2, 1987, intervener Truck filed a motion to vacate the default judgment entered against Viguri.
On December 7, 1987, K. served Viguri and Truck with notice of entry of judgment. (§ 664.5, subd. (a).)
On December 22, 1987, the court heard and took under submission Viguri's motion for reconsideration and Truck's motion to vacate the default judgment.
On January 7, 1988, by minute order the court denied Truck's motion. The same day the clerk mailed the minute order to Truck.
On January 14, 1988, the court issued a written order denying Viguri's motion for reconsideration and denying Truck's motion to vacate the default judgment.
On February 29, 1988, Viguri filed notice of appeal.
K.'S MOTION TO DISMISS VIGURI'S APPEAL
Viguri's notice of appeal states he "appeals from the Order denying defendant's Motion for Reconsideration and Motion to set aside and vacate Default Judgment and granting Default Judgment against him entered herein on December 22 [sic], 1987...."
K. contends Viguri's appeal is untimely whether deemed an appeal from the minute order denying his motion to vacate default, the default judgment, or the minute order and written order denying his motion for reconsideration. We agree. Viguri's appeal of the default judgment and the order denying his motion to vacate default must be dismissed as untimely under relevant provisions of California Rules of Court, rules 2 and 3.
ORDER DENYING MOTION TO VACATE DEFAULT IS NOT APPEALABLE
APPEAL FROM DEFAULT JUDGMENT IS UNTIMELY
MOTION TO RECONSIDER
Truck has appealed denial of its motion to vacate the default judgment against Viguri. K. contends Truck's appeal should be dismissed, asserting Truck's attempt to intervene did not comply with section 387's procedural requirements and Truck's notice of appeal is untimely. We deny K.'s motion to dismiss Truck's appeal. Further, we find the superior court should have granted Truck's section 473 motion to vacate.
K.'S MOTION TO DISMISS TRUCK'S APPEAL
K.'s reliance on Kuperstein v. Superior Court (1988) 204 Cal.App.3d 598 [251 Cal.Rptr. 385] is misplaced. In Kuperstein we granted a writ directing the superior court to deny an insurer leave to intervene. In Kuperstein the insurer sought to enlarge the issues raised by the original parties by requesting leave to file a complaint in intervention for a declaration it had no duty to defend or indemnify. Further, the insurer and its insured wanted factual issues resolved in opposite ways. The problems we identified in Kuperstein are not present here. Intervention by Truck was proper under Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 884-886 [151 Cal.Rptr. 285, 587 P.2d 1098].
TRUCK'S APPEAL IS TIMELY
On December 2, 1987, under authority of Clemmer v. Hartford Insurance Co., supra, 22 Cal.3d at pages 884-886, Truck filed its motion to vacate the default judgment entered against Viguri. On January 7, 1988, by minute order the court denied Truck's motion to vacate. The same day the clerk mailed the minute order to Truck. On January 14, 1988, the court signed and filed a written order denying Viguri's motion for reconsideration and denying Truck's motion to vacate. The record contains no proof such written order was served on Truck. On March 8, 1988, Truck filed its notice of appeal. Truck's notice of appeal was timely.
DENIAL OF TRUCK'S MOTION TO VACATE WAS IMPROPER
Viguri was insured under a Fire Insurance Exchange (Fire) homeowner policy and a Truck business premises liability policy. Fire and Truck are among several insurers in the Farmers Reciprocal Inter-Insurance Exchange. Fire, Truck and Farmers Insurance Exchange each has a separate annual financial statement and employer identification number. Fire and Truck have San Diego South branch claims offices at the same address as Farmers Insurance Group's (Farmers) San Diego South branch claims office.
On July 21, 1987, Attorney Ronis sent a copy of K.'s complaint to Jim Williams of Farmers' South San Diego branch office. In his cover letter Ronis wrote: "Pursuant to the coverage my client has with your company, contained in his homeowners policy, it appears there exist coverage for at least two of the three causes of action contained in the complaint. [¶] Please be advised that I have been in contact with the plaintiff's attorney ... and he has graciously granted an extension of time within which to answer pending
On July 27, 1987, Williams as Fire's branch claims manager wrote Ronis: "[W]e are opening a file on this matter to review the coverage and defense aspects of the claim at this time. [¶] When the file has been reviewed by the appropriate people, we will advise you of our position." Williams's letter referred to the Fire policy number.
On July 30, 1987, Don McCurley as Fire's claims representative wrote Ronis acknowledging Ronis's representation of Viguri and requesting all further correspondence be addressed to McCurley.
On August 11, 1987, McCurley as Fire's senior claims representative replied to Ronis's July 21 request for a "defense for your client, Dr. Viguri." McCurley wrote: "Based upon what I can see initially, the type of coverage that would apply to this type of incident appears to fall under business liability coverage. I have not been able to contact Dr. Viguri as I understand he is not in town, and I would appreciate hearing from you whether or not his Malpractice Insurer has been placed on notice referencing the aforementioned claim. [¶] Lastly, if you have knowledge that his Homeowners Policy would specifically cover some act or negligence associated with this particular claim, please advise me immediately." McCurley's letter referred to the Fire policy number.
On September 4, 1987, the clerk entered Viguri's default.
On September 15, 1987, Ronis sent McCurley a copy of Viguri's homeowner policy. In his cover letter Ronis wrote: "Dr. Viguri does not have a malpractice policy. We currently are checking to see if there is a business liability policy other than the policy with Truck Insurance Exchange, policy number 99 1482 38 93." With his letter Ronis enclosed a "copy of the Answer to the complaint."
On October 29, 1987, Ronis's associate Teague told McCurley the prove-up hearing was scheduled for the next day, Viguri required a defense, and an attorney from Farmers was needed to request a continuance. Teague cited to McCurley the case of Clemmer v. Hartford Insurance Co., supra, 22 Cal.3d 865.
On October 30, 1987, Viguri through Attorney Ronis noticed a motion to vacate default. The court continued K.'s default prove-up hearing until
On November 9, 1987, McCurley as Fire's senior claims representative wrote Teague: "As you are aware, this office has submitted the request for coverage to our company for review. It is doubtful that a decision will be rendered prior to November 11, 1987, the apparent date of the hearing to set aside the default. [¶] Based upon your letter of September 15, 1987, we acknowledge that you have filed an answer on behalf of Dr. Viguri, and your office will continue to do what is necessary to protect his interests. [¶] In the meantime, I will follow up with the coverage decision and advise you as soon as I am informed."
On November 18, 1987, Teague notified McCurley the hearing on Viguri's motion to set aside default was scheduled for November 20, 1987. Teague wrote: "Please extend coverage and/or a defense in this case."
On November 19, 1987, Truck extended legal defense to Viguri under reservation of rights.
On November 20, 1987, the court heard and took under submission Viguri's motion to vacate default.
On November 23, 1987, the court issued a minute order denying Viguri's motion to vacate.
On November 24, 1987, Williams notified Teague in writing that Truck had decided to provide Viguri a defense under reservation of rights. Williams also stated Fire denied Viguri coverage and defense.
On November 30, 1987, counsel provided by Truck filed a motion on Viguri's behalf to reconsider denial of the motion to vacate.
On December 1, 1987, the court signed and filed default judgment against Viguri.
On December 2, 1987, the clerk entered the default judgment.
On December 2, 1987, Truck as intervener filed its own motion to vacate the default judgment against Viguri.
"Where, as here, the trial court denies the motion for relief from default, the strong policy in favor of trial on the merits conflicts with the general rule of deference to the trial court's exercise of discretion. [Citation.] Unless inexcusable neglect is clear, the policy favoring trial on the merits prevails. [Citation.] Doubts are resolved in favor of the application for relief from default [citation], and reversal of an order denying relief results [citation]." (Elston v. City of Turlock (1985) 38 Cal.3d 227, 235 [211 Cal.Rptr. 416, 695 P.2d 713].)
On September 4, 1987, Viguri's default was entered. The record contains no evidence Truck was notified or otherwise actually knew before September 15, 1987, Viguri was requesting defense or coverage under Truck's business premises liability policy. The mere fact McCurley and Williams as agents of entities related to Truck knew in July 1987 of K.'s lawsuit and Viguri's request for defense under the Fire policy does not show they actually knew of the existence of Viguri's Truck policy. Neither does the fact they handled Viguri's tender of defense under the Fire policy show they should have known a policy issued by Truck might provide coverage for Viguri. The evidence does not support a conclusion McCurley and Williams actually knew or had reason to know of any claim by Viguri under the Truck policy before September 15, 1987. Nothing in the record would impute to Truck before such date notice of any claim by Viguri under its policy. Moreover, K. has cited no statutory or decisional authority imposing on an insurer under such circumstances any duty to investigate or discover the existence of a policy possibly providing coverage. We note the insurance
Further, the record contains no evidence Truck was notified or otherwise knew before October 29, 1987, default had been entered on K.'s complaint against Viguri. Ronis's September 15, 1987, letter to McCurley gave no inkling default had already been entered, enclosed a copy of an answer to K.'s complaint, and suggested Ronis was acting to protect Viguri's interests. On October 30, 1987, Ronis on Viguri's behalf filed a motion to vacate default. On November 23, 1987, that motion was denied. On November 30, 1987, counsel provided by Truck filed a motion on Viguri's behalf to reconsider denial of the motion to vacate. On December 2, 1987, little more than a month after learning of entry of default, Truck as intervener filed its own motion to vacate.
The evidence necessitates a finding Truck made a case compelling relief and filed its motion under section 473 within a reasonable time. (Clemmer v. Hartford Insurance Co., supra, 22 Cal.3d at p. 886.) On this record the court acted beyond its discretion in denying Truck relief under section 473. The court should have granted Truck's motion to vacate.
K. IS ENTITLED TO COSTS AND ATTORNEY FEES
Viguri's appeal from the default judgment and the order denying his motion to vacate default is dismissed as untimely. The order denying Viguri's motion to reconsider is affirmed.
Respondents to have costs on appeal.
Wiener, J., and Huffman, J., concurred.
A petition for a rehearing was denied June 29, 1989, and respondents' petition for review by the Supreme Court was denied August 30, 1989.
Rule 2(b) provides in relevant part: "(2) The date of entry of an appealable order which is entered in the minutes shall be the date of its entry in the permanent minutes, unless such minute order as entered expressly directs that a written order be prepared, signed and filed, in which case the date of entry shall be the date of filing of the signed order. (3) The date of entry of an appealable order which is not entered in the minutes shall be the date of filing of the order signed by the court."
Rule 3(b) provides: "When a valid notice of intention to move to vacate a judgment or to vacate a judgment and enter another and different judgment is served and filed by any party on any ground within the time in which, under rule 2, a notice of appeal may be filed, or such shorter time as may be prescribed by statute, the time for filing the notice of appeal from the judgment is extended for all parties until the earliest of 30 days after entry of the order denying the motion to vacate; or 90 days after filing the first notice of intention to move to vacate the judgment; or 180 days after entry of the judgment."
All rule references are to the California Rules of Court.