Lint v. Chisholm

Citations: 121 Cal. App. 3d 615; 177 Cal. Rptr. 314; 1981 Cal. App. LEXIS 1965Docket: Civ. 22764

Court: California Court of Appeal; June 17, 1981; California; State Appellate Court

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C. Chisholm appeals the denial of his motion to vacate a default judgment entered against him in favor of Sandy Lint. He raises several arguments: surprise, excusable neglect, lack of authority by the temporary judge to enter the judgment, discrepancies between the judgment and minute order, and omissions regarding his cross-complaint. Chisholm, who represented himself, also contests the denial of his summary judgment motion.

The background reveals that Lint filed a complaint in 1976 alleging conversion, breach of contract, and fraud. After an unsuccessful motion for summary judgment by Chisholm, Lint amended her complaint, to which Chisholm responded and cross-complained. He removed the case to superior court but failed to pay required transfer fees for over two years, leading Lint, initially an indigent plaintiff, to pay them herself. The case was transferred in 1979, and after Lint filed a memorandum, trial was scheduled for March 14, 1980, with notifications sent to both parties. Chisholm claims he did not receive notice due to personal issues but did not update his address with the court. He did not attend the trial, which proceeded with a temporary judge, resulting in a judgment entered on April 1, 1980.

The court noted that a motion to vacate a judgment under Code Civ. Proc. § 473 is at the trial court's discretion, and the appellant bears the burden of proving an abuse of that discretion. Chisholm's claims of surprise and excusable neglect were dismissed, as the court found that his circumstances did not meet the legal definitions of these terms. The court emphasized that surprise involves an unexpected situation causing injury without fault, while excusable neglect refers to neglect that a reasonably prudent person would exhibit under similar conditions.

Chisholm failed to demonstrate that his failure to notify the court of his address change was reasonable or that the nonreceipt of notice was without fault on his part. As a law school graduate licensed in two jurisdictions and a member of the U.S. Supreme Court Bar, he was aware of his obligation to inform the court of any address changes. His participation in multiple lawsuits during the notice period indicated that he could not claim lack of notice. The court found no abuse of discretion in proceeding with the trial given proper notice was served.

Chisholm contested the authority of the temporary judge to act without his stipulation, arguing he was a "party litigant" despite not appearing for trial. However, the court distinguished his case from Rooney v. Vermont Investment Corp., where lack of notice prevented a judgment from being entered without an opportunity to be heard. In Chisholm's case, proper notice was given, and he forfeited his status as a party litigant by not appearing. The court supported its decision with precedent, noting that parties who willfully abscond from trial cannot claim rights to object to a judge's appointment. Additionally, the Supreme Court in Sarracino v. Superior Court affirmed that the stipulation required for a temporary judge can be made by the present party alone if the other defaults.

Chisholm also raised objections regarding discrepancies between the judgment and the minute order, claiming the relief granted exceeded what was requested and that his cross-complaint was not addressed. However, he failed to provide supporting authority or adequately discuss these contentions.

Variance between a complaint's prayer and the relief granted is acceptable if supported by evidence and an answer has been filed. Any discrepancies between the judgment and the minute order were rectified through Lint's motion to correct clerical errors, which also resolved Chisholm's cross-complaint. Chisholm's motion for summary judgment was denied correctly, as summary judgment is only appropriate when no factual disputes exist. Affidavits submitted must be strictly construed against the moving party and liberally in favor of the opposing party, with doubts resolved in favor of the latter. Despite the absence of Lint's declaration in the appeal record, a review revealed several triable issues of fact without any abuse of discretion noted.

Chisholm sought to challenge the damage award for loss of use of converted property, claiming it was not permitted under Civil Code section 3336, but he failed to raise this issue at the trial or in his appeal briefs, only mentioning it during oral arguments. His conduct suggested a deliberate attempt to delay the proceedings, leading the court to consider the argument waived. However, the court addressed the matter to expedite the litigation's conclusion, affirming that damages for conversion typically equate to the fair market value of the property plus interest. If damages for loss of use exceed the legal interest rate, only the greater amount should be awarded. The judgment was modified to eliminate a $644 interest award from the property value due to the aforementioned principles, and as modified, the judgment was affirmed. A concurrence noted differing views on the implications of a party's absence at trial, emphasizing the right of a litigant to avoid court costs even after filing an answer.

In Sarracino v. Superior Court, the case pertains to a defaulting party rather than an appearing one, which limits its applicability. Bill Benson Motors, Inc. v. Macmorris Sales Corp. does not establish binding precedent on forfeiture, as it was decided under unique facts by the appellate department of the superior court and based on alternative grounds. In Benson, the appellate court indicated that the term 'parties litigant or their attorneys of record' excludes those who willfully absent themselves from trial, which the appellants did. Although this is a civil case and the parties cannot be held in contempt, their willful absence leads to a waiver of their rights regarding the appointment of a Commissioner as a judge pro tempore. The term "willful" implies a lack of justification for their absence.

Chisholm, who paid his appearance fee to file an answer in the municipal court, failed to take any action in the superior court and did not pay the required fees for transferring the case despite several requests. Consequently, he never became a party litigant in the superior court. His stipulation regarding a temporary judge was unnecessary, aligning with the majority's conclusion. The notice for the trial date was properly mailed to Chisholm's business address as per the Code of Civil Procedure, completing service upon deposit.

Additionally, the excerpt details a prayer for judgment related to claims of conversion and breach of employment contract, outlining specific damages sought by the plaintiff, including possession of property and costs of the action.

The plaintiff alleges fraud, claiming special damages that include transportation costs between San Francisco and San Diego. The damages sought include compensation for the value of converted personal property, loss of use, interest on the converted property, transportation expenses related to an employment agreement, lost wages, and litigation costs. Judgment is ordered against defendant John Chisholm for converting the personal property and breaching an oral employment agreement. Specific amounts awarded include $2,402 for the value of the converted property (or possession of the property as an alternative), $2,770 for loss of use from May 24, 1976, to the judgment date, $644 for interest on the value of the converted property, $300 for transportation expenses, and $600 for lost wages. The court also corrects the prayer amount relating to the property and dismisses the cross-complaint with prejudice. Additionally, it is noted that Chisholm's failure to include a declaration in the appeal renders the record incomplete, but the court presumes it would support the lower court's order. The detriment from wrongful conversion is defined as the property value at the time of conversion plus interest or an amount to indemnify the injured party for losses that could not have been averted, along with compensation for expenses incurred in pursuing the property, as per California Civil Code Section 3336.