As to the motion of respondent to dismiss the appeal, I concur with the order made by this court for the reasons set forth in the opinion of Judge Conley. I cannot, however, concur with the order of the majority of this court affirming the trial court’s order on the appeal.

Whether or not there was an abuse of discretion on the part of the trial court depends upon the evidentiary support found in the declarations presented by the respondent herein to be relieved of the default entered against him.

“Further, as in any other case, the trial court’s determination of the facts as found from the affidavits of the parties will be conclusive upon the appellate court (Nomellini Construction Co. v. Deane, 160 Cal.App.2d 57, 59 [ 324 P.2d 654 ]), but if the facts as stated in the moving party’s affidavit do not constitute valid grounds for the relief sought, the trial court’s action in setting aside the default will be reversed (Benjamin v. Dalmo Mfg. Co., 31 Cal.2d 523 [ 190 P.2d 593 ] ; Yarbrough v. Yarbrough, 144 Cal.App.2d 610 [ 301 P.2d 426 ]). Hence the question narrows to whether or not the facts stated in the affidavit of defendant’s counsel show reasonable grounds for setting aside the default judgment.” Romer, O’Connor & Co. v. Huffman, 171 Cal.App.2d 342 at p. 347 [ 341 P.2d 62 ].

Such evidence and the inferences which properly might be drawn therefrom of course must be viewed by this court in light of the provisions of section 473 of the Code of Civil Procedure and the many eases decided by our higher courts in the interpretation and application of that statute. This court, as well as the trial court, must act within such boundaries prescribed; and although this court has no right to substitute its discretion for that of the trial court, this court *868 is charged with the examination of the record before it to determine if there was an “abuse of discretion” as that phrase also has been defined by the appellate courts of this state. We need not repeat such guideposts as have been prescribed by our courts. They are too well known and have been restated with reasonable consistency from the ease of Bailey v. Taaffe (1866), 29 Cal. 422 to Luz v. Lopes (1960), * (Cal.App.) 6 Cal.Rptr. 412 .

There is no contention that the declarations filed by respondent reflect “surprise” or “inadvertence” as grounds for relief. Was there then any “mistake” or “excusable neglect” shown by such declarations?

Both of these terms have been explored and passed on by this court in Gilio v. Campbell, 114 Cal.App.2d Supp. 853 [ 250 P.2d 373 ], wherein the court, speaking through the Honorable George M. DeWolf, states at page 857: “Passing to the question of “excusable neglect,” that term has been held to mean that neglect which might have been the act of a reasonably prudent person under the same circumstances. (Elms v. Elms, 72 Cal.App.2d 508, 512 [ 164 P.2d 936 ]).”

By a diligent review of the record in this case, I am not persuaded that either “mistake” or “excusable neglect” is shown, applying to those terms the interpretation placed thereon by our appellate courts.

There is no intimation that the plaintiff at any time acted unfairly, or in any way misled the defendant in taking his default. At no time did defendant communicate with the plaintiff or the plaintiff’s attorney, either before or after this action was filed. He did nothing with the process served upon him, except (we must assume) wilfully disregard it. Had defendant delivered the process to the representative of the Richfield Oil Company, whose assurance he apparently accepted some four or five months previous thereto in regard to the claim upon which said action was predicated, or to the Industrial Indemnity Insurance Company, with which company he states he had an insurance policy, there would have been at least one solid circumstance upon which he could rest his conduct.

This case does not fall within that limited field where one has been justified in relying upon the assurance of a third party such as an assurance made by a codefendant employer. *869 The eases cited and relied upon by the respondent are distinguishable.

Justice Peters has set forth clearly the rule of law, which I feel is applicable in this ease, in the case of Yarbrough v. Yarbrough, supra, 144 Cal.App.2d at p. 615 : The cases are clear to the effect that where the defendant, with full knowledge of the proceedings, and without being misled by the opposing party or counsel, fails to take action to protect his interests until after the default, it is an abuse of discretion to set the default aside. (Elms v. Elms, 72 Cal.App.2d 508 [ 164 P.2d 936 ] ; Essig v. Seaman, 89 Cal.App. 295 [ 264 P. 552 ] ; Bailey v. Taaffe, 29 Cal. 422 ; Fink & Schindler Co. v. Gavros, 72 Cal.App. 688 [ 237 P. 1083 ] ; Weinberger v. Manning, 50 Cal.App.2d 494 [ 123 P.2d 531 ] ; Dunn v. Standard Acc. Ins. Co., 114 Cal.App. 208 [ 299 P. 575 ].) Nor does the trial court have the legal power to set aside the default simply because the defendant did not realize the legal effect of failing to file an answer. ’ ’

And at page 616: “There can be no doubt that a trial court may find excusable neglect or surprise where settlement negotiations are being had between counsel, and where there is an oral or implied understanding that no default will be taken without notice, and counsel takes such a default without notice. [Cases cited.] But those eases are predicated upon the fact that opposing counsel acted so as to deceive or mislead the defaulting counsel.”

As disclosed by the declarations filed by respondent, the conduct of the defendant does not measure up to “the act of a reasonably prudent person under the same circumstances.” I would, therefore, reverse the order of the trial court.

A hearing was granted by the Supreme Court on September 7, 1960. The final opinion of that court is reported in 55 Cal.2d 54 [ 10 Cal.Rptr. 161 , 358 P.2d 289 ].