40 Cal. App. 3d 752

[Civ. No. 44140.

Second Dist., Div. One.

July 19, 1974.]

THOMAS P. BURLEY, Plaintiff and Respondent, v. HOWARD M. STEIN, Defendant and Appellant.

*753Counsel

Brown & Altshuler and Leo Altshuler for Defendant and Appellant.

Thomas P. Burley, in pro. per., for Plaintiff and Respondent.

John H. Larson, County Counsel, and Dwight V. Nelsen, Deputy County Counsel, as Amici Curiae.

*754Opinion

HANSON, J.

This is an appeal from an action originally filed in the small claims court.

The Case

Thomas P. Burley (hereinafter plaintiff) filed a small claims action against one Dr. Howard M. Stein (hereinafter defendant), a dentist, in the Los Cerritos Judicial District in 1973. The plaintiff was a patient of the defendant and sued for $499 in damages allegedly resulting from the defendant’s incompetence in performing his duties. Dr. Stein was served with the claim of the plaintiff, but failed to appear in court. The small claims court gave judgment to the plaintiff in the sum of $499 with costs and also allowed the defendant a 20-day stay of execution. The record does not reflect whether or not the small claims court required the plaintiff to put on evidence to prove up his prima facie case.1 Because of defendant’s failure to appear, a default and default judgment was entered in the docket against the defendant.2

The defendant was served a copy of the order of the small claims court, and he (the defendant) subsequently filed a notice of appeal from the default judgment in the superior court.

At the trial court de novo before the superior court both parties, ready for trial, appeared in propria persona. The superior court held that since the defendant had made no attempt to vacate the default in the court below, he (the defendant) had no standing to appeal to the superior court, and affirmed the default judgment of the small claims court.

*755The defendant thereafter retained counsel to move for a new trial in the superior court. The defendant in a declaration attached to his motion for new trial admitted that he received the notice of the claim, but by reason of his own busy schedule he had simply overlooked the hearing until the hour had passed. He (the defendant) asserts that he called the clerk of the small claims court and was advised that he could appeal the decision if he were dissatisfied with it. The superior court denied the motion and by a written opinion gave its reasons for the denial of the motion.3

This court granted certification to hear the appeal from the judgment of the superior court pursuant to Code of Civil Procedure section 911 and rule 63 of California Rules of Court.

Issue

The question, as certified before this court, is whether or not a defendant in a small claims case who has had a default judgment rendered against him for failure to appear may, nevertheless, have the right of appeal directly to the superior court for a trial de novo as a dissatisfied litigant under section 117j of the Code of Civil Procedure.

Discussion

The procedure for handling of small claims actions, in general, and the issue before us, in particular, has been a matter of some concern to those in both the bench and bar dedicated to the efficient administration of justice. The comments in the opinion of the trial judge in the superior court relative to the general need for reform (see fn. 3) is apparently shared by *756others in the judiciary.4 In addition, there is a school of thought of some outside, the judiciary that reform in the small claims area is needed to handle the ever-increasing disputes of consumers.5

*757However, it is not our function nor do we have the authority to implement sweeping procedural reforms in this area by appellate decision. We direct our attention to the case at bench and limit our ruling to the ambit *758of the single issue posed; namely, can a defaulting defendant in a small claims action appeal directly to the superior court.6

*759The general rule of law is that unless the defaulting party takes steps in the trial court to set aside the entry of default, any further action would be futile. (A & B Metal Products v. MacArthur Properties, Inc., 11 Cal.App.3d 642 [89 Cal.Rptr. 873]; Jones v. Moers, 91 Cal.App. 65, 69-70 [266 P. 821].)

Moreover, very early cases arising, of course, under different code sections and practices permitting appeal from a justice court judgment in the form of a trial de novo in the superior court, clearly prohibited the appeal after a default. (People ex rel. Jones v. Co. Court of El Dorado, 10 Cal. 19.) It appears it is reasonable that this rule should certainly be applicable in the instant case and is compatible with the general legislative intent.

In addition, the rules of procedure, as set out in the Code of Civil Procedure, apply to all courts, including small claims. (See Code Civ. Proc., § 34.) Code of Civil Procedure section 473 allows a trial court to set aside a default when such default has been taken against an individual because of the individual’s mistake, inadvertence, surprise or excusable neglect.

Also, since the defendant failed to make a motion to set aside the default in the lower court, he is estopped from appealing the default in any higher court. (See J. M. Wildman, Inc. v. Stults, 176 Cal.App.2d 670 [1 Cal.Rptr. 651].)

However, there is an additional factor here which militates against the application of the above rules of procedure in the case at bench. The record reflects that after the defendant had defaulted by nonappearance, the small claims court entered judgment on a court form entitled “Claim of Plaintiff and Order.” The form encompasses the subpoena, the claim and the eventual order. A similar form was delivered/served on the defendant *760prior to the hearing. On the back of this form is printed, “Information for Defendants in Small Claims Actions.”7 Paragraph lb. of the information states that if the defendant makes “no appearance at the trial, . . . the plaintiff may be given a judgment by default for the amount claimed, plus costs.” Paragraph 6 of the information states that if the defendant is “dissatisfied with the judgment,” the defendant may, “within 20 days after the date of entry of the judgment, appeal the court’s decision. See the clerk for forms and procedure on appeal.”

The printed matter referred to above makes no distinction between a judgment by contest (on its merits at trial) and judgment by default. It does not advise the unwary lay litigant that if he does not appear at the original hearing he must first make a motion to set aside the default and *761default judgment,8 and show good cause for his failure to appear in accordance with Code of Civil Procedure section 473.

Thus, the printed information supplied the defendant in the instant case did not clearly reflect usual court procedure and was misleading or subject to misinterpretation. In addition, as previously noted, the defendant stated that he called the clerk of the small claims court and was advised that if he were dissatisfied he could appeal. The defendant could therefore reasonably assume that he was complying with the law and the correct procedure by appealing directly to the superior court without first moving in the small claims court to have the default and default judgment set aside and first having his trial on the merits in the small claims court, if his motion were granted.9

Conclusion

Accordingly, we hold that the general law that a defaulting defendant must take steps in the trial court to set aside the entry of default before further legal action can be taken also applies to small claims court actions. Therefore, we affirm the superior court holding that the defendant has no standing to appeal to the superior court from the default judgment having made no attempt to vacate the default in the small claims court.

However, in the instant case, the defendant, unschooled in the law, may have been inadvertently misled by either the printed matter on the back of the form as hereinbefore discussed or by the advice from the clerk of the small claims court that he could appeal if he were dissatisfied. Therefore, on the record presented to us, he (the defendant) has established his right to relief from the default as a matter of law and he is entitled to be placed back into the position he was upon receipt of the notice of the default judgment from the small claims court.

Accordingly, we reverse the order of the superior court affirming judgment for the plaintiff. This case is remanded back to the superior court for the purpose of modifying the superior court judgment by deleting the affirmance of the default judgment and with instructions to refer the matter back to the small claims court for further handling, and granting the defendant 20 days from the receipt of the superior court order to move the small claims court, with proper notice to plaintiff, to set aside the default *762and the default judgment pursuant to section 473 of the Code of Civil Procedure.10

The judgment as modified is affirmed.

Wood, P. J., and Thompson, J., concurred.

Burley v. Stein
40 Cal. App. 3d 752

Case Details

Name
Burley v. Stein
Decision Date
Jul 19, 1974
Citations

40 Cal. App. 3d 752

Jurisdiction
California

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