Lynch v. Betts

DRAPER, P. J.

The trial court once denied defendants’ motion for relief from default and thereafter entered default judgment. Later it granted a motion to vacate the earlier order and set aside the default and judgment. Plaintiff appeals from the latter order, and defendants counter with an appeal from the order denying relief from default and from the judgment first entered.

Attorney Berman first entered the case November 2, when he secured an order extending time for defendants to plead to the complaint. On the same day he wrote plaintiff’s attorney, advising of his representation of defendants, forwarding copy of the order extending time, and suggesting discussion of settlement. The two attorneys had a telephone conversation November 4.

No pleading was filed by defendants and on Friday, December 4, the day after expiration of the time granted defendants by the above order, plaintiff secured entry of defendants’ default. On Monday, December 7, defendants served and filed their motion to set aside the default under Code of Civil Procedure section 473, together with a proposed answer and cross-complaint. The motion was supported by Berman’s affidavit stating that he had been engaged in an extended criminal trial which concluded December 2; that he attempted unsuccessfully to reach plaintiff’s attorney, Fitzsimmons, by telephone at about 3:30 p. m., December 3 and again on the following day. The motion was noticed for December 21. On that day Fitzsimmons filed a lengthy counteraffidavit in which he alleged that he told Berman “to have his answer in by December 3, 1959, for sure as affiant was interested in imme

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diately taking the depositions” of defendants, and that he intended to take these depositions ‘‘ immediately after Berman filed an answer.” At hearing on the motion, Berman twice asked leave to file counteraffidavits, but his requests were denied. The court then denied defendants’ motion. Later on the same day, in the absence of defense counsel, evidence was taken and default judgment entered.

On December 24 defendants filed their motion to vacate the order of December 21, and to set aside the default and judgment thereon. This motion was supported by the affidavit of Berman denying that Fitzsimmons said anything to him to lead Berman to believe that Fitzsimmons would insist upon filing of an answer within the time allowed by the order extending time, would refuse to consider further extension of time, or would fail to follow what Berman alleged to be the established practice of attorneys in Marin, San Francisco and San Mateo Counties of giving notice to opposing counsel of an intention to enter default. In their previous professional dealings, Fitzsimmons had given Berman no reason-to believe that he would not follow this custom, existence of which was also asserted by affidavits of two practicing attorneys. Berman’s affidavit further alleged that the affidavits supporting his initial motion were hastily prepared in an effort to act promptly to cure the default. He also recited his unsuccessful attempt to file counteraffidavits at the first hearing. Affidavits in opposition were filed, the matter was fully argued January 4, and the court vacated its prior order, set aside the default and judgment thereon, and permitted filing of the answer and cross-complaint offered by defendants. Written order was signed and filed January 5, 1960.