Bellm v. Bellia

150 Cal.App.3d 1036 (1984) 198 Cal. Rptr. 389 COLLEEN BELLM, Plaintiff and Respondent,

v.

CHARLES BELLIA et al., Defendants and Appellants.

Docket No. AO18561. Court of Appeals of California, First District, Division Five.

January 19, 1984. [1037] COUNSEL

Curt J. Cooper and Beatrice Taines for Defendants and Appellants.

Allen Law Corporation and Gary H. Gale for Plaintiff and Respondent.

OPINION

KING, J.

Charles Bellia and C.B.A., Inc. (Bellia) appeal from a default judgment in favor of Colleen Bellm and an order denying Bellia's motion to set aside the default judgment. We affirm the judgment and order.

On October 30, 1981, Bellm filed a complaint against Bellia, seeking to recover commissions allegedly due her as a salesperson. The summons and complaint were served on November 13, 1981. Bellia filed no answer. Counsel for Bellm represented another person who had sued Bellia, and had periodic communications with counsel for Bellia concerning discovery matters in that case, but did not notify counsel of the present action against Bellia or the impending default. Bellia's default was entered on December 28, 1981. On January 18, 1982, Bellia moved to set aside the default. The court denied the motion. A default hearing was held and judgment for Bellm was entered in the amount of $35,134.52 plus costs of $12,750 and interest.

[1038] (1) Bellia contends that the trial court abused its discretion when it denied his motion to set aside the default, because he made a showing of excusable neglect justifying relief from the default under Code of Civil Procedure section 473. Bellia alleged in declarations in support of the motion that after he was served with the summons and complaint he forgot about the matter because of the business pressures of the Christmas season ("I was `buried over my head' in sales orders") and because of the serious illness of his father (who died on Mar. 9, 1982) and recent death of his mother after a long illness on July 29, 1980.