Shields v. Siegel

Defendant appeals from an order denying his motion to set aside his default and the ensuing default judgment (money damages for personal injuries) upon the equitable grounds of extrinsic accident and mistake; a motion for relief under section 473, Code of Civil Procedure, had previously been denied, but no appeal is prosecuted from such latter order. It is contended that the court under all the circumstances abused its discretion in rendering the order now challenged.

The sequence of relevant events follows: On March 16, 1962, plaintiff, then employed by the City of Los Angeles, was riding on the right rear platform of a truck engaged in collecting rubbish. The truck was being driven west in an alley about 18 feet in width; defendant was driving east on the north side of the same alley. Plaintiff’s foot was crushed when the vehicles collided. Defendant at the time of the above happening was insured with Allstate Insurance Company under a policy with a $10,000 limit for bodily injury to any one .person. Six weeks later, on April 26, 1962, one Santoorgian, a claims examiner employed by Allstate, wrote plaintiff’s attorney, Mr. Tepper, denying plaintiff’s claim against their insured.

Suit was commenced on November 16, 1962, and defendant served with process on November 21 of that year. No appearance having been made by him, defendant’s default was entered on January 7,1964; after a hearing on the default, the court entered judgment against defendant in the sum of $60,000 plus costs. Against this judgment plaintiff’s employer has a lien for $17,000 representing medical expenses already incurred.

Nine months later, on October 6, 1964, plaintiff’s attorney, Sidney Tepper, telephoned defendant, advising him that “a large judgment” had been taken against him by default. Defendant told Tepper that he had delivered the summons and complaint to Allstate and was advised by the company that it

Defendant’s contentions must be viewed in the light of the above rules and other legal principles formalized over the years for the guidance of trial courts. Emphasized by defendant is the truism that the law favors the adjudication of actions on the merits; but a moving party (such as defendant here) must make a satisfactory showing that he is entitled to such an adjudication. As was said in Benjamin v. Dalmo Mfg. Co., 31 Cal.2d 523 , 529 [ 190 P.2d 593 ], “Courts do not relieve litigants from the effects of mere carelessness.” If an adequate explanation is not made for relief from the burdens of a default judgment, the trial court is under a duty to deny motions of the type here in suit. “The court must be made acquainted with the reasons for the [accident and mistake] and, if satisfactory, will act upon them and relieve from burdens caused by them; but, if the [accident and mistake are] wholly inexcusable, as if [they arise] from gross negligence, the court will not look upon [them] kindly, and will have none of [them].” (Shearman v. Jorgensen, 106 Cal. 483 , 485 [ 39 P. 863 ].)

At the time of the denial of defendant’s motion, however, the case of Weitz v. Yankosky was pending in the Supreme Court after decision by another division of this court ([Cal. App.] 44 Cal.Rptr. 53 ). The opinion was filed on January 19, 1966 ( 63 Cal.2d 849 [ 48 Cal.Rptr. 620 , 409 P.2d 700 ]) and involves a factual situation similar to that at bar. There, as here, the motion was directed to the inherent equity power of the court, more than six months after the entry of the default, to grant relief from a default judgment assertedly resulting from “extrinsic mistake.” There, as here, the defendant carried insurance and relied on his insurer to take all necessary steps on his behalf after service of the summons and complaint (June 4, 1961) which were mailed (on the date of such service) by defendant to the carrier’s home office in Texas —defendant, it appears, was not aware that the company had a local claims office in Los Angeles. The papers apparently

There can be but little doubt that the ministerial acts of defendant’s carrier belong in the same category as those discussed in Weitz-, defendant accordingly had the right to, and did, assume that the company would defend or otherwise protect his interests. The question remains whether defendant has brought himself within the remaining determinations upon which the Weitz case is rested. It was there concluded (1) that a delay of one month (after discovery of possible liability in the premises) in moving to set aside the judgment did not constitute a lack of diligence in the nature of laches because plaintiff was unable to show any prejudice resulting from the granting of the motion, and (2) under all the circumstances defendant Yankosky did not act unreasonably in failing to file the motion sooner, With respect to (1) supra, in our case no counterafSdavit was filed by plaintiff that he had suffered any prejudice or that any injustice would be done by the granting of the motion. As pointed out in Weitz, when such counteraffidavit is not filed in opposition to a motion under section 473, very slight evidence will be required to justify the granting of the motion; however, as there further noted, the power to grant relief under section 473 is wider than it is in a proceeding of this kind and, as still further noted, lack of prejudice is only one of the factors to be considered in determining whether the moving party acted diligently. What is said with respect to (1) must be read, it seems to us, with the court’s treatment of (2) respecting the timeliness of the motion in the light of the conceded circumstances at bar. According to the Supreme Court, the same considerations apply in determining the timeliness of such motion as are applicable in deciding whether the moving party’s conduct was excusable in relying upon the other interested party, in our case, Allstate, to assert a defense to the action. In this connection it is significant that Benjamin v. Dalmo Mfg. Co., supra ( 31 Cal.2d 523 ) was distinguished: “There the delay in seeking relief from the default was apparently attributable to the defendant’s private attorney, and with regard to motions to set aside default judgments, eases involving reliance upon attorneys have been treated differently from those involving reliance upon other third parties. [Citation.] ” (Pp. 858-859.)

An overall appraisal of the merits of this appeal requires that this case likewise be treated differently. Although Weitz

The above determination remains unaffected by plaintiff’s claim, since we deem it without merit, that defendant’s proposed answer does not indicate a substantial probability of success at a trial on the merits. While Smith v. Busniewski, 115 Cal.App.2d 124 [ 251 P.2d 697 ] (relied on by plaintiff) makes mention of the rule that the moving party must plead and prove that a different result will be had in any such trial, the statements in defendant’s declaration coupled with the proposed pleading which contains denials and affirmative defenses tend to constitute a sufficient defense to the complaint on file—the law, it would seem, does not require defendant to guarantee success in the adversary proceeding he seeks. In support of the contention that defendant under the facts of the case cannot prevail in any such proceeding, it is argued that he violated the law, and was therefore prima facie negligent, in driving on the wrong side of the alley. However, in Alarid v. Vanier, 50 Cal.2d 617 , 624 [ 327 P.2d 897 ], the court has furnished the correct test to be applied in such an eventuality: Did the person who has violated a statute sustain the burden of showing that he did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law? Mani

The order is reversed.

Wood, P. J., and Pourt, J., concurred.