Iott

Plaintiff-appellant appeals from an order, made pursuant to California Code of Civil Procedure section 473, vacating a default and default judgment and permitting an answer to be filed.

The single issue we decide, involving section 473 “excusable neglect,” is this: May an attorney assume that opposing counsel has granted him extensions of time to file an answer because, in an effort to request such extensions, he has placed two phone calls to but not spoken with, written two letters to but not received answers from, opposing counsel? We think not.

Background

According to the complaint, in 1979 appellant began having a series of heart attacks so that in 1984 he decided to retire from his aerospace company employment. Around October 1984, he saw a local newspaper advertisement soliciting investment funds. Attracted by the ad’s description of an opportunity to earn a 25 percent to 50 percent short-term return, he responded and thereafter personally met with the authors of the ad, Joseph and Beatrice Franklin, respondents.

At this meeting appellant told the Franklins of his heart condition, that he had only $25,000, no investment experience, and needed a safe investment.…