Bellm

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.

*1038 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…

I respectfully dissent. The policy of the law is to favor a hearing on the merits, particularly where it appears a defense could be *1039 made. (Weitz v. Yankosky (1966) 63 Cal.2d 849, 854 [ 48 Cal.Rptr. 620 , 409 P.2d 700 ]; Baske v. Burke (1981) 125 Cal.App.3d 38, 43 [ 177 Cal.Rptr. 794 ].) “Rigid rule following is not always consistent with a court’s function to see that justice is done.” (Kapitanski v. Von’s Grocery Co. (1983) 146 Cal.App.3d 29, 32 [ 193 Cal.Rptr. 839 ].) There is no dispute that Mr. Bellia’s attorney acted promptly when notified his client had been served. While Mr. Bellia obviously did not act as promptly as he should have, his declaration shows that his father was dying of cancer at the time and this contributed to his neglect. It is true that he was also under the press of business, but he contends that his father’s illness (his father subsequently died) coming shortly after his mother’s death, was also a factor contributing to his failure to contact his attorney earlier. He was an only child, and his parents were dependent on him for support. His declaration shows he has a legitimate defense to offer. It appears the trial court emphasized the press of…

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.

(1) 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.…