Westport Oil Co. v. Garrison

Opinion

AULT, J.

Defendants Jack E. Garrison, Michael J. McGann and Carlyle M. Ingles appeal from an order setting aside a default and a default judg

[976]

ment taken against plaintiff Westport Oil Company on a cross-complaint and denying their motion for summary judgment and to dismiss the complaint.

Facts

On September 12, 1969, Westport filed a complaint against the defendants entitled “Complaint For Unlawful Detainer,” seeking restitution of leased premises, the sum of $2,490 in back rent, $1,000 attorney’s fees, and $2,274 for the costs of restoring the leased premises. The 55-page original lease together with the defendants’ assumption of its obligations were attached to the complaint as an exhibit. On September 19, 1969, defendants filed a pleading captioned “Answer To Complaint For Unlawful Detainer — Cross-Complaint, Counter-Claim.” In the middle of this pleading, sandwiched between two affirmative defenses to the complaint, were 5 paragraphs preceded by the heading: “By Way of CounterClaim and Cross-Complaint, Defendants Allege As Follows:

“That under the terms of the written lease of the parties hereto, plaintiffs were required to provide adequate parking space for the customers of defendants; that the said plaintiffs violated the covenant or [sic] their part . . . .”

The pleading then alleges plaintiffs [plural] permitted customers of its cocktail bar adjoining the leased premises to interfere with defendants’ business and breached express covenants of quiet enjoyment and possession; that because of plaintiffs’ breach of these covenants defendants were required to and did vacate the leased premises in January 1969, all to their damage in the sum of $25,000.'At the end of the entire pleading defendants prayed for damages against plaintiff in the amount of $25,000.

The plaintiff considered the portion of the pleading we have referred to a counterclaim and filed no answer. However, at defendants’ request the clerk of the court entered plaintiff’s default on October 10, 1969, and, on November 20, 1969, a superior court judge signed a judgment awarding defendants the sum of $3,602.97 against Westport. Plaintiff, unaware of the entry of either the default or the judgment, filed an at issue memorandum in February 1970, and in March served defendants with a notice of trial and a notice of deposition. During all of this time defendants remained silent, waiting for 6 months to pass quietly by. Plaintiff, immediately after learning what had transpired, on April 21, 1970, 6 months and 11 days after entry of the default, gave notice of motion under Code of Civil Procedure section 473 to set aside the default and the judgment on two grounds: (1) that plaintiff’s attorney made a mistake of law or fact in interpreting defendants’ claim to be a counterclaim; and (2) that defendants’