Davis v. Kay

Opinion

ROTH, P. J.

Appellant and plaintiff Allen V. C. Davis appeals from an order setting aside a summary judgment against respondents-defendants Jeff S. Kay, Evelyn N. Kay and David J. Kay.

On March 8, 1972, appellant sued respondents for money past due on a note. Respondents were served two days later. On April 26, 1972, no

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answer having been filed, a default judgment was entered. On May 23, 1972, respondents, on grounds of excusable neglect attributable to their attorneys’ secretary, moved for relief under Code of Civil Procedure section 473. Respondents’ motion was supported by a declaration of the secretary of respondents’ attorney in which she stated that she had mistakenly recorded the wrong date for the answer to be filed. Appellant resisted the motion but in the alternative consented on condition that respondents be required to post a bond as security for a judgment as a condition for relief from the default.

On June 1, 1972, the court granted the motion but did not require a bond. The next day appellant served notice to take deposition on all defendants on June 14, 1972. Respondents’ motion to continue was denied and depositions were taken and completed and on the 22d of June 1972, appellant served and filed a motion for summary judgment calendared to be heard on July 3, 1972.

The motion for summary judgment supported by points and authorities and declarations of appellant and his counsel respectively are replete with probative facts and, in addition, include exhibits A to Q, both inclusive, all of which are set forth in pages 56 to 97 of the clerk’s transcript and were served upon respondents’ lawyers on June 22, 1972. Respondents filed no opposition to the motion and did not appear on the date set for hearing, to wit: July 3, 1972. On that day the motion was granted by the trial court. Two days later appellant was served with a notice of ruling on the motion and on July 26, 1972, the court signed the proposed judgment.

On July 28, respondents served appellant with a notice of intent to vacate the judgment pursuant to Code of Civil Procedure section 473. The motion was once again based upon the neglect of respondents’ counsel’s secretary to calendar the July 3 hearing.