Isherwood v. Hyrosen Properties, Inc.

194 Cal.App.3d 33 (1987) 240 Cal. Rptr. 157 EVELYN ISHERWOOD, Plaintiff and Respondent,

v.

HYROSEN PROPERTIES, INC., Defendant and Appellant.

Docket No. 17221. Court of Appeals of California, Appellate Department, Superior Court, Los Angeles.

July 15, 1987. [34] COUNSEL

Darling, Medof & Miller, Jaxon E. Miller, Van Hulle & Prevost and Lucien Van Hulle for Defendant and Appellant.

Zeutzius & LaBran and Ronald M. LaBran for Plaintiff and Respondent.

[Opinion certified for partial publication.[*]]

[35] OPINION

REESE, J.

Defendant Hyrosen Properties, Inc., appeals from the order denying its motion to set aside the default and the judgment by default. The record on appeal is a clerk's transcript. On October 19, 1984, plaintiff Evelyn Isherwood filed a complaint against defendant. On March 4, 1985, defendant answered the complaint. On January 8, 1986, notice of trial, for January 30, 1986, was mailed by the court clerk to defendant's attorneys. Defendant did not appear at the trial and $17,500 was awarded to plaintiff after testimony was taken and exhibits were admitted into evidence. On March 13, 1986, defendant moved to set aside the judgment alleging it did not receive actual notice of the trial date. The motion for relief from default was denied.

(1) A motion to vacate a default and set aside the default judgment is addressed to the sound discretion of the trial court, and will not be set aside in the absence of a clear showing of abuse of that discretion. (Lint v. Chisholm (1981) 121 Cal. App.3d 615, 619 [177 Cal. Rptr. 314].) All presumptions are made in favor of the trial court's order and the appellant's burden is to show abuse of discretion. (Id., at p. 620.) (2a) We reject defendant's argument that the order denying defendant relief from default should be reversed because the court clerk did not comply with Code of Civil Procedure section 1013[1] in giving defendant notice of the trial date.