Serlis v. Serlis

HERNDON, J.

Plaintiff, Shirlee Serlis, brought this action for divorce against defendant, Benjamin P. Serlis, alleging extreme cruelty and desertion. Defendant failed to answer. After entry of default, an interlocutory judgment of divorce in favor of plaintiff was entered on October 6, 1960.

On March 17, 1961, defendant noticed a motion under section 473 of the Code of Civil Procedure to set aside the entry of default and the judgment and for leave to file an answer and cross-complaint

“on

the ground that said default was entered and said interlocutory judgment was taken against defendant through his mistake, inadvertence, surprise, or excusable neglect. ’ ’ The matter was determined on the conflicting evidence contained in the declarations of the parties and the testimony introduced at the hearing on the motion. The trial court denied the

motion;

defendant appeals from the order.

As stated in

Elms

v. Elms, 72 Cal.App.2d 508, 513 [164 P.2d 936] : “It is the duty of every party desiring to resist an action or to participate in a judicial proceeding to take timely and adequate steps to retain counsel or to act in his own person to avoid an undesirable judgment. Unless in arranging for his defense he shows that he has exercised such reasonable diligence as a man of ordinary prudence usually bestows upon important business his motion for relief under section 473 will be denied. . . . Courts neither act as guardians for incompetent parties nor for those who are grossly careless of their own affairs. ...” (See also

Osborn

v. Osborn, 131 Cal.App.2d 191, 195-196 [280 P.2d 60].)

And, as recently stated in

Luz

v.

Lopes,

55 Cal.2d 54, 62 [10 Cal.Rptr. 161, 358 P.2d 289] : “The burden of proof on such a motion is on the moving party who must establish his position by a preponderance of the evidence. [Citations.] It is for the trial court to determine all conflicts in the testimony or affidavits [citations] and if there is a conflict the determination of the trial court is conclusive on appeal [citations],”