A & S Air Conditioning v. John J. Moore Co.

SHOEMAKER, J.

This is an appeal by the defendants from an order denying their motion to set aside a default and default judgment entered against them in favor of plaintiff.

The facts are undisputed. Plaintiff filed suit on March 12, 1959, for money and interest due on two promissory notes in the principal sums of $10,000 and $18,000, and as part of their prayer asked for attorneys’ fees of $2,500 and $4,500 respectively. On March 18, 1959, defendants were served with summons and complaint. Thereafter defendants’ attorney, Mr. Rolston, discussed the action with plaintiff’s attorney, Mr. Golden. During the conversation Rolston stated that there was no defense as to the monies due under the promissory notes, but that he felt the attorneys’ fees prayed for were unreasonable; Golden replied these represented the amount for a contested case and that, in the event of default, the attorneys’ fees as normally allowed would be nominal. On June 23, 1959, plaintiff requested entry of default, which was done. On July 24, 1959, plaintiff, after a hearing by the court, was granted a judgment in the sum of $28,000 together with interest, and $6,000 as attorneys’ fees. In September, defendants’ attorney became aware of the amount allowed

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as attorneys’ fees and called plaintiff’s counsel. He again stated his clients had no defense to the notes themselves and that in his former conversation with Golden he had in mind the schedule of fees that was in effect in the Superior Court of Los Angeles County; that he believed this schedule likewise applied to the courts of Alameda County; that under such schedule the attorneys’ fees would be much lower than those awarded; that he had been mistaken to his clients’ detriment and would have to move to vacate the default and default judgment so as to give the defendants a right to contest the matter of attorneys’ fees. On October 16, 1959, defendants filed their motion to vacate, which was heard on November 6, 1959, and denied.

Defendants contend that they should have been relieved of their default and default judgment because of their mistake, inadvertence, surprise and excusable neglect in accordance with section 473 of the Code of Civil Procedure. They seek this relief solely to be able to contest the allowance of attorneys’ fees and they assert: (1) that the statement made by plaintiff’s counsel respecting the allowance of attorneys’ fees in a default matter lulled them into a sense of false security with the result that the judgment was taken and (2) that their attorneys’ mistake of law as to the rules governing the awarding of attorneys’ fees in Alameda County led them not to appear and contest the matter.