Davi v. Belfiore

California Court of Appeal Aug 19, 1957 No. Civ. 17331Published

Before: Peters

AI Brief

AI-generated · verify before citing

Holding. The court held that the default judgment was properly set aside because it was procured by extrinsic fraud, as the plaintiff induced the defendant not to contest the action by repeatedly representing that he would not seek a judgment against him.

Issues

Whether the default judgment was secured by extrinsic fraud sufficient to justify setting it aside.
Whether the defendant's failure to answer the complaint was due to excusable neglect induced by the plaintiff's representations.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The essential characteristic of extrinsic fraud is that it has the effect of preventing a fair adversary hearing, the aggrieved party being improperly induced not to present his defense.”

“One of the commonest forms of extrinsic fraud is where the aggrieved party in reliance on representations made by the adverse party that his interests will not be adversely affected, is induced not to appear.”

PETERS, P. J.

On October 22, 1954, at the request of John Belfiore, the municipal court entered a default judgment against Frank D. Davi. On July 15, 1955, in the superior court, Davi brought an action against Belfiore to set aside the default judgment. The superior court set the default aside. Belfiore appeals.

The complaint to set aside the default judgment was founded on two theories: that the default was void for the reason that the municipal court was without jurisdiction to render it, and that the default was procured by the extrinsic fraud of Belfiore practiced upon Davi. The superior court, in addition to finding that Davi had a meritorious defense to the municipal court action, found that Davi had established both theories.

The municipal court action was filed in November, 1952, by Belfiore. It named “Alfonso La Rocco, John Doe and Richard

[326]

Roe” as defendants. La Rocco answered. In November of 1953 the complaint was personally served on Davi, as a Doe defendant. Davi failed to answer, and his default was entered. In January of 1954, after the entry of the default, Belfiore filed an amended complaint in the municipal court action. The caption of this amended complaint was identical with the caption of the original complaint, but in the body of the amended complaint Davi, for the first time, is named as a defendant. The amended complaint effected a substantial change in the cause of action alleged in the original complaint.

A copy of the amended complaint was served on Davi by mail, but the “affidavit” of service was defective in that it was not sworn to. La Rocco answered the amended complaint, but Davi failed to respond. No default was entered, however, on the amended complaint. In October of 1954 the municipal court entered its default judgment against Davi for $1074, with accrued interest and costs. In December of 1954 Belfiore dismissed the action, with prejudice, against La Rocco. In May of 1955 the municipal court issued a writ of execution on the default judgment, and on June 10, 1955, Davi was served with an order for examination. This was the date that Davi first learned that a judgment had been taken against him. On July 15, 1955, this action to set aside the default was commenced.

Davi v. Belfiore

AI Brief

PETERS, P. J.

More from California Court of Appeal

Related research

AI Brief