*1 Three. Mar. Dist., Div. 1952.] No. 18732. Second [Civ. v. CLAIRE Respondent, BARATTI, ROBERT ANTHONY Appellant. BARATTI, MARIE *3 George A. Pickering for Appellant. Respondent.
Walter C. Harbert for Appeal by VALLEE, from deny defendant an order J. to vacate a default and an interlocutory motion her decree based thereon. of divorce complaint 16, was filed November 1950. The sum-
The complaint were served on and on mons defendant November of default defendant was 19, 1950. entered Decem- Plaintiff was awarded an 4, interlocutory ber 1950. decree 26, May 1950. On 21, 1951, on December defendant filed motion vacate to the default her notice and decree “mistake, ground on the and ex- defendant,” part on the cusable and an affidavit support in thereof. of defendant preg-
The affidavit stated: defendant is expected in nant; July, 1951; plaintiff child is and de- engaged in sexual until fendant intercourse the end Oe- tober, 1950; parties; is that' of the neither the child interlocutory child; decree mentions the complaint nor the pregnant until know she was December did not 26, 1950; fact, known that she would not have had she permitted taken; when she first her default to learned it; promised pregnant plaintiff about he she was she told help expense of the child’s birth and to her with the with plaintiff her, has avoided support; its since then and now he denies father. plaintiff sued her
The affidavit also stated: when she was do; confused did know what to she her and not consulted present attorney February 21, 1951; on she has stated the her to him and he has advised she has a facts meritorious cross-complaint; plaintiff defense and a valid cause for support child, able her and the and she is not. presented pro- With her notice of motion defendant posed proposed cross-complaint. answer and.a opposition in
Plaintiff filed an affidavit to the in motion 1950, he saw defendant on 19, which he stated: November complaint, after she served with the summons and going not action; to contest the she said she she did inform pregnant January 1951, him she was until 27, not 26, her although January he saw on December on 1951; engage in he did not sexual intercourse with separated they August 15, 1950 he is not (cid:127) child; promise he did not of the defendant he would father expense of birth of the help with the child or with support. deny stated: she does not counteraffidavit, in a Defendant, says being for divorce sued “but she knew she inexperienced, and did what confused, not know she was confusion arose out of consideration it”; “her about do to follow order to reach a result course best concerned; best interests all accordance with answer”; know the she is interested she still does a reconciliation. possibilities of denying motion reads: “Motion defendant’s The order renewal of motion for prejudice to leave denied without *4 interlocutory judgment and file answer default set aside any there is or will be issue of the of whether raising marriage.” deny- abused its claims the court discretion (1) it denied the motion and at
ing motion because (2) imposed it imposed terms, terms which tend same time
921 merits, fair trial on a full and deny defendant Defend- on the facts. abuse discretion (3) it is an unintended be relieved from the she should ant also claims any barring from re- trial court’s order effect of the file at least an answer permitted lief, and should herein. a motion a de granting
The
or denial of
to vacate
judgment
ground mistake,
and a
based thereon
fault
neglect,
excusable
rests
the sound
or
court;
discretion of the trial
and the order will not be dis
clearly
appears
turbed on
unless it
the trial
that
guilty
pre
court was
of an
discretion.
abuse of
All
sumptions
indulged
will be
in favor of the correctness of
appellant
and the burden is on
to show
(Estate
the court’s
McCarthy,
discretion was abused.
23
398,
914].)
400
P.2d
No such show
[73
is made
case.
A mistake of fact
person
is when a
the facts to be other
understands
than
they are; a mistake of
is when a person
law
knows the
they really
facts as
are
a
but has mistaken belief as to
legal consequences
(People
those facts.
Kelly,
v.
35
Cal.App.2d 571, 574
372].)
P.2d
Inadvertence
de
[96
fined as lack of hcedfulness
attentiveness, inattention,
or
fault
from negligence.
(Webster’s
Dict.,
ed.;
New Inter.
2d
Greene
v.
Brewing
Montana
Co.,
693,
922 good acted sur- mistake, faith that his prise neglect of his excusable actual cause failure to appear. affidavits, tried on in which an is
In a matter favoring affidavits the con that those is the rule on only party the facts prevailing establish not of the tentions reasonably may be all which also facts but stated therein Haddan, v. 105 (Wolfson inferred therefrom. 145].) When there a sub 147, 149 P.2d affidavits, the de presented by facts in the stantial conflict by the court facts trial- controverted termination (Deyl Deyl, 88 appeal. Cal. disturbed on will not be 424].) 543 P.2d App.2d 536, prejudice to denied The motion was argues purpose. Defendant that be a limited renewal for imposed and there so it terms the order was made cause authority on court conferred of the fore was excess abuse of discretion. Sec by 473 constitutes an section says may granted “upon be such terms as tion 473 may relief argument predicated on the just.” be Defendant’s denied motion and at view the court erroneous that imposed. No imposed time terms. terms were the same deny the re empowered motion without The court to complain because the left may not order Defendant serve. same but for lim open her seek the relief a to door purpose. ited excuse showing
No was made to defendant’s failure May 21, relief to file her motion for until con attorney February 21, 1951. In sulting with Mfg. Co., said, Cal.2d the court Benjamin v. Dalmo cited, p. : nor has “Defendant has P.2d 593] disclosed, in which a independent research case court making therefor, where, application a has aside default set delay anything unexplained approach there has. been an entry ing knowledge after full of the of the three months litigants from default.” do not relieve the effects Courts of mere carelessness.
It was not shown defendant understood the they were; -be other thus there was show facts to ing than no claim of a mistake of fact. Defendant did not she had legal consequences facts; a mistaken belief to the as showing thus there was law. no of a mistake of No show was made. It cannot said inadvertence neglect reasonably pru- was the a defendant’s act circumstances; it be said person under the thus cannot dent neglect. showing of excusable that there against proceeding nature of the knew and understood the appear mistake, failure inadver- her. Her was not due tence, surprise solely or excusable but was due to change (Mills Mills, Cal.App. mind. 248 [281 P. 707].)
Patently ample support there is evidence to *6 and was no of in denying there abuse discretion mo- the prejudice tion without with leave renew it for pur- the pose stated. given privilege renewing of the
motion
the purpose
raising
question
for
of
“whether
’’
there
will be
marriage.
issue of the
Counsel
advise us that defendant did
priv
not avail herself of the
ilege.
rights
-The
prejudiced
the child are not
however.
may
Defendant
imacy
secure a
legit
determination
the child’s
paternity
and obtain
custody
an
for
order
(Civ.
support.
Code,
196a, 231; Samp
Superior
sell
§§
Court,
32 Cal.2d
780-781
Wong
P.2d 739];
Young,
391, 395
P.2d 741]; Southern
Cal. Edison Co. v. Industrial Acc. Com.,
Determination of the motion for court. trial as Holding, do, we the court did not abuse its dis denying cretion in motion, this court is power consider “in of an application nature for relief under Section the Code of Civil Procedure, or in the nature of a motion to pro vacate and enter nunc tunc a corrected or in the nature of an action for equitable relief.”
Affirmed. (Parker),
Wood J., concurred. P. should SHINN, J. I dissent. motion have been upon ground granted. was not denied It promptly. granted leave have had not moved She paternity only. judgment vacated for trial of the procedure. per I understand do this She should be not may defenses and mitted to whatever claims she have on behalf herself the child. The courts have invariably policy in allowing almost followed liberal divorce tried on their merits. better cases to be What could reason discovery pregnancy granting there for relief than the Upon show- entered ? judgment had been default and called made relief from default was such as defendant judicial and therefore discretion for in the exercise of sound been right, grace; it should not have was a matter of inadequate my opinion In doses. meted out in small order should be reversed.