Huff v. Mendoza

Opinion

WENKE, J.

*

Appellant Larry S. Huff (hereinafter referred to as Huff) has appealed from a judgment of the trial court dismissing his first amended complaint after sustaining a general demurrer without leave to amend.

In 1975 a default judgment was rendered against Huff and in favor of respondents Ruben Mendoza and Rose Mendoza (hereinafter referred to as Mendoza) in the Superior Court of the State of Arizona. Ruben Mendoza had been injured while a spectator at a motorcycle race in August of 1974. In that action it was alleged that Huff had an agency or partnership relationship with one Ballah who conducted the race. Huff was served in January of 1975. Thereafter the default judgment was entered on June 5, 1975.

On December 1, 1975, Huff filed a motion to set aside the default judgment. Incident to this he contended that he had forgotten about the papers that were served on him until early in March 1975, when he gave them to his business manager, one Coultas, for handling. Coultas misplaced the papers and forgot about them until September 1975. At that time an amended complaint was left with Huff’s estranged wife. The leaving of this document apparently prompted Huff, through Coultas, to seek legal assistance. As a result, a motion to set aside the default was filed on December 1, 1975. The motion was granted. Thereafter the Arizona Court of Appeals vacated the order setting aside the default and reinstated the judgment. The appellate court stated that there was nothing in the facts presented on behalf of the motion to support a finding of excusable neglect in seeking relief from the default on the part of Huff, albeit there may have been a meritorious defense. The Arizona Supreme Court denied review on March 22, 1977.

In his California complaint, the original of which was filed on June 13, 1978, Huff makes no reference to Coultas’ conduct; instead, he now alleges that Ballah, the operator of the race, promised to undertake the

[680]

defense of the Mendoza action and to assume all responsibilities in connection with same. Later he learned that Ballah had not done so. The California action to enjoin enforcement of the default judgment is predicated entirely on the misfeasance of Ballah; the Arizona motion to set aside the same default judgment was based entirely on the misfeasance of Coultas.