Wax v. Infante

Opinion

KINGSLEY, Acting P. J.

Defendants appeal from an order denying their motion to vacate a judgment by confession. We reverse the order.

Plaintiff and defendant Joseph Infante had a dispute over monies allegedly due from Joseph to plaintiff. They agreed on a settlement of that dispute, which included the execution by Joseph and his wife of a promissory note and of a confession of judgment. The parties then went to a lawyer who had, in the past, represented both plaintiff and the defendants, with a request that he draw the necessary papers, which he did. Defendants having fallen in default under the note, the confession of judgment was filed, accompanied by a certificate from the lawyer, and judgment was entered thereon. Shortly thereafter defendants moved to vacate that judgment. The motion was denied and this appeal followed. We reverse.

After the decision in

Isbell

v.

County of Sonoma

(1978) 21 Cal.3d 61 [145 Cal.Rptr. 368, 577 P.2d 188], the Legislature amended section 1132 of the Code of Civil Procedure. Subdivision (b) of that section, as so amended, reads as follows:

“A judgment by confession shall be entered

only

if an attorney independently representing the defendant signs a certificate that the attorney has examined the proposed judgment and has advised the defendant with respect to the waiver of rights and defenses under the confession of judgment procedure and has advised the defendant to utilize the confession of judgment procedure. The certificate shall be filed with the filing of the statement required by Section 1133. ” (Italics added.) The certificate, purporting to follow that section, reads, in pertinent part, as follows:

[140]

“That Joseph Infante and Vivian Infante, whose confession of judgment in favor of Matthew Wax has been executed and filed with the Superior Court of the State of California for the County of Los Angeles, requested, together with Mr. Wax, that I prepare for them said confession of judgment on their behalf.