Martin v. Cinelli

TOBRINER, J.

When a trial court refuses to set aside a default judgment upon a motion under Code of Civil Procedure, section 473, this court reviews the record to determine if the court has abused its discretion. We have found no abuse of discretion in the record before us.

The case arose from this background: Respondent brought an action for breach of contract against appellant and three other persons, whose identity were then unknown and who were accordingly designated as First, Second and Third Doe, individually and as “co-partners transacting business under the firm name and style of Cinelli & Co., Inc.”; and “Cinelli & Co., Incorporated, a corporation.” The complaint alleged appellant to be sole oivner of the stock in Cinelli & Co., Inc., with whom respondent had contracted, stating that the corporation was but a “mere shell and naked corporate framework” which appellant and the other individual defendants below “fraudulently used” to avoid their alleged obligations.

Appellant and Cinelli & Co., Inc., having been served with a copy of the complaint and summons, failed to appear and plead to the complaint; accordingly, on September 19, 1958, the court entered a judgment against both of them. On December 24,1958, appellant moved to set aside that judgment, supporting it by his “Declaration.” On December 30, 1958, appellant filed a verified answer to respondent’s complaint. On January 2, 1959, respondent filed his “Declaration” in opposition to appellant’s motion. Judge Raymond G. Callaghan, of the Superior Court, in and for the County of Santa Clara, denied appellant’s motion on January 9, 1959. On February 9, 1959, appellant obtained an order from Judge Callaghan permitting him to renew his motion to set aside the default judgment. Appellant’s second motion to set aside the judgment, filed on the same day, supported by another

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“Declaration” by appellant, was denied by Judge John D. Foley of the above superior court. It is from this order of Judge Foley that appellant appeals to this court.

The factual crux of this ease involves a certain telephone conversation between appellant and respondent’s attorney, the accounts of which differ.

Appellant claims that in the course of that conversation, he made, among others, the following statements: Appellant was President of the corporation, one Meyerstein, Vice-President, and one Reid, Secretary-Treasurer; appellant “was a member of the Board of Directors . . . along with” Milani and Rustid, “the other two stockholders, who each owned 50 shares, like” appellant, Meyerstein and Reid; appellant “acted only as agent of the aforesaid corporation” and respondent “knew this”; “the $1,000 advance” paid to respondent “under that contract was paid by the corporation.” Appellant further alleges that, at the close of the conversation, respondent’s attorney “asked me to give him the names of the other officers and directors . . . and I spelled them for him.” Respondent’s attorney then allegedly stated, “ ‘I’ll take care of it,’ or words to a similar effect. ’ ’