Bellm v. Bellia

150 Cal. App. 3d 1036, 198 Cal. Rptr. 389, 1984 Cal. App. LEXIS 1514

• Court: California Court of Appeal
• Decided: January 19, 1984
• Docket: AO18561
• Status: Published

Opinions

Opinion

KING, J.

Charles Bellia and C.B.A., Inc. (Bellia) appeal from a default judgment in favor of Colleen Bellm and an order denying Bellia’s motion to set aside the default judgment. We affirm the judgment and order.

On October 30, 1981, Bellm filed a complaint against Bellia, seeking to recover commissions allegedly due her as a salesperson. The summons and complaint were served on November 13, 1981. Bellia filed no answer. Counsel for Bellm represented another person who had sued Bellia, and had periodic communications with counsel for Bellia concerning discovery matters in that case, but did not notify counsel of the present action against Bellia or the impending default. Bellia’s default was entered on December 28, 1981. On January 18, 1982, Bellia moved to set aside the default. The court denied the motion. A default hearing was held and judgment for Bellm was entered in the amount of $35,134.52 plus costs of $12,750 and interest.

Bellia contends that the trial court abused its discretion when it denied his motion to set aside the default, because he made a showing of excusable neglect justifying relief from the default under Code of Civil Procedure section 473. Bellia alleged in declarations in support of the motion that after he was served with the summons and complaint he forgot about the matter because of the business pressures of the Christmas season (“I was ‘buried over my head’ in sales orders”) and because of the serious illness of his father (who died on Mar. 9, 1982) and recent death of his mother after a long illness on July 29, 1980.

The only allegations that Bellia made regarding the effect of these factors, however, were that his parents’ illnesses and deaths “were very trying to me” and that business pressures “caused me to forget about being served with Bellm’s complaint. ” It was not an abuse of discretion for the trial court to reject these claims as insufficient to justify setting aside the default. The press of business is not a sufficient excuse for failing to respond to service of a summons and complaint. (Davis v. Thayer (1980) 113 Cal.App.3d 892, 909 [170 Cal.Rptr. 328]; Andrews v. Jacoby (1919) 39 Cal.App. 382, 383-384 [178 P. 969].) Bellia did not allege that his parents’ illnesses occupied any amount of his time or that he was too distraught to think about Bellm’s complaint. (Davis v. Thayer, supra, 113 Cal.App.3d at p. 909.) Denial of relief from the default was perhaps a harsh measure, but Bellia’s showing of excuse was not strong enough to require relief as a matter of law.

Bellia also contends that counsel for Bellm should have given notice of the impending default to the attorney who represented Bellia in the other case in which the two attorneys were adversaries. While as a matter of professional courtesy counsel should have given notice of the impending default, and we decry this lack of professional courtesy (cf. Nicholson v. Rose (1980) 106 Cal.App.3d 457, 463 [165 Cal.Rptr. 156]), counsel was under no legal obligation to do so. (Turner v. Allen (1961) 189 Cal.App.2d 753, 758 [11 Cal.Rptr. 630]; Taliaferro v. Bekin Realty Co. (1959) 176 Cal.App.2d 240, 242 [1 Cal.Rptr. 385].) By taking a default without giving notice, counsel took the risk that the trial court would grant relief from the default (Pearson v. Continental Airlines (1970) 11 Cal.App.3d 613, 619 [89 Cal.Rptr. 853]), but the failure to notify did not require the court to grant relief. No abuse of discretion is evident.

The judgment and the order denying the motion to set aside the default judgment are affirmed.

Low, P. J., concurred.