Gardner

Virginia M. Gardner petitions for writ of mandate to set aside the superior court order vacating her default judgment against real parties Arthur K. and Barbara L. Statt. The trial judge exercised no discretion but instead expressed the opinion he was compelled by this court and by the judicial system in general to vacate the default. We issue the writ of mandate and direct the trial court to exercise its discretion.

Gardner sued the Statts for the unpaid principal balance of about $13,926 on a promissory note, plus interest, attorney fees, and costs. The Statts answered but failed to appear for their depositions, giving two days’ notice to Gardner’s counsel. Then they substituted themselves into the action in pro se in place of their attorney. Gardner sought sanctions for wilful failure to appear for depositions. The Statts responded that Arthur Statt had an upper respiratory infection and “may not have felt like traveling” and Barbara Statt had to take care of her children and had minimal knowledge of the transaction. Sanctions were not granted.

The Statts failed, without notice, to appear at the trial setting conference set for September 6, 1985. The case was set for…