Citations
- 31 Cal. App. 4th 1481
Full opinion text
Opinion
VOGEL (C. S.), J.
Defendants and appellants Casa de Palms, Ltd., Tumanjan Development Corporation, Michael Tumanjan, and George Tumanjan appeal from a default judgment in favor of plaintiff and respondent Metropolitan Service Corporation and from an order denying defendants’ motion pursuant to Code of Civil Procedure section 473 to set aside the default.
Factual and Procedural Background
Plaintiff Metropolitan Service Corporation secured a stipulated judgment in 1989 against defendants Casa de Palms, Ltd., and Tumanjan Development Corporation for $32,000.
On February 4, 1992, Metropolitan filed its complaint in the instant case to amend the stipulated judgment to include defendants Michael Tumanjan and George Tumanjan as judgment debtors on the ground they operated defendant Tumanjan Development Corporation as their alter ego.
Defendants’ attorney James H. Sloey agreed to accept service of the complaint. On February 5, 1992, plaintiff’s attorney Robert Burk sent Sloey the summons, complaint, notice and acknowledgement of service. Sloey executed acknowledgement of service on March 5, 1992, and mailed the acknowledgement to Burk on March 6, 1992. In his cover letter, Sloey stated: “Please find enclosed our Acknowledgement of Receipt. I am sorry that it has taken so long, I have been extremely busy and am in the middle of two (2) fast track lawsuits at the present time. In the event I need some extra time, I would certainly appreciate if I could give you a call and you could extend me some additional time. In any event, I anticipate having an answer to you no later than April 6, 1992.”
Sloey did not file an answer on defendants’ behalf by April 6, 1992, nor did he contact Burk to request an extension. Plaintiff immediately requested entry of defendants’ default, on April 7, 1992.
On April 9, 1992, Sloey telephoned Burk to request that the default be set aside, which Burk refused.
On June 10, 1992, the court entered judgment on the default. On the same date, defendants filed their motion to set aside default pursuant to section 473, setting the hearing for July 16, 1992.
In the memorandum in support of the motion, defendants cited the first sentence of the third paragraph of section 473 (discretionary relief), which provided, “The court may, upon such terms as may be just, relieve a party or his or her legal representative from a judgment, order or other proceeding taken against him or her through his or her mistake, inadvertence, surprise or excusable neglect.” In support of the motion, defendants submitted the declaration of Attorney Sloey, under penalty of perjury, executed June 8, 1992, stating: “I have been engaged in a pre-trial civil proceeding during the past six (6) weeks. This matter has virtually taken every minute of time. Knowing this, in my letter of March 6, 1992, addressed to Plaintiff’s counsel, a copy of which is attached as Exhibit ‘A’, I clearly indicated that I may need additional time to answer Plaintiff’s Complaint, [fj . . . Notwithstanding same, Plaintiff’s counsel immediately filed his Request for Entry of Default without ever telephoning my office once in an attempt to ascertain if I was going to file an Answer or if I did in fact need some additional time. Based upon same, I respectfully requested Plaintiff’s counsel to set aside the defaults entered against Defendants herein. My request was absolutely and flatly refused by Plaintiff’s counsel. [