Marianos v. Tutunjian

Opinion

ASHBY, J.

This is an appeal from an order of the municipal court setting aside a default judgment. The matter is before us on certification from the appellate, department of the superior court. (Cal. Rules of Court, rules 62, 63.)

[63]

Facts

On February 27, 1975, defendant was served with summons and complaint which he did not answer. His default was entered April 21, 1975. The default judgment was entered June 17, 1975. Defendant moved to set aside the judgment on January 14, 1976, approximately seven months after the judgment was entered. Defendant’s motion to vacate sought relief pursuant to section 473 of the Code of Civil Procedure.

In his declaration in support of the motion, defendant averred that at the time he was served with the summons and complaint he delivered them to an attorney named Schlessinger whom he retained for the purpose of filing a responsive pleading. He relied on his said attorney and understood that the matter was being attended to. He did not receive notice of default at his residence, his place of employment or any other address. In his declaration he states that he learned of the judgment in November 1975. Subsequently he states that he did not learn of it until December 1975, when his vehicle was seized pursuant to a writ of execution.

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The declaration goes on to state that because of the holidays and the lack of a vehicle he had difficulty finding an attorney to represent him until January 7, 1976, when he hired his present counsel who had prior knowledge of the transaction between himself and plaintiff which gave rise to the lawsuit. The declaration further states that defendant has a meritorious defense to the complaint.

The minute order setting aside the default states: “Court finds good cause to set aside and vacate the default as to Garo Tutunjian in that said defendant did not learn of the default until November, 1975, although defendant employed an attorney to represent him in this case in April, 1975. The court finds the foregoing constitutes excusable neglect by defendant within the meaning of CCP 89(b)3.”