(May 2020) - In Pacific Pioneer Ins. Co. v. Superior Court, 44 Cal.App.5th 890 (January 30, 2020), the California Fourth District Court of Appeal, in a case of first impression, granted Pacific Pioneer Insurance Company's ("Pacific Pioneer") petition for writ of mandate compelling the trial court to reinstate its notice of appeal of an underlying default judgment entered against its insured in small claims court in the amount of $10,000. Pacific Pioneer's insured had failed to appear at a small claims court hearing and the trial court entered the default judgment against the insured. Thereafter, Pacific Pioneer filed a notice of appeal of the judgment and the trial court struck the notice.
The trial court reasoned that under California Code of Civil Procedure 116.710, because a non-appearing defendant cannot appeal a default judgment, the defendant's insurer was also barred from appealing the default judgment.
In issuing its order to the trial court to reinstate Pacific Pioneer's notice of appeal, the Court of Appeal reasoned as follows:
First, we examine the text of the statutory scheme: Section 116.710 governs the appeal of small claims actions. We quote the entirety of the statute in the margin. Subdivision (c) expressly gives "the insurer of the defendant" the right to appeal any small claims judgment over $2,500, while subdivision (d) precludes "[a] defendant" who did not appear at the hearing from appealing the judgment.
Gonzalez' theory is that subdivision (c) giveth a right to appeal, then subdivision (d) taketh it away by restricting that right to only those cases where the defendant appears. We believe this argument incorrectly conflates the words "insurer of the defendant" in subdivision (c) with the words "defendant who did not appear at the hearing" in subdivision (d).
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"Ordinarily, where the Legislature uses a different word or phrase in one part of a statute than it does in other sections or in a similar statute concerning a related subject, it must be presumed that the Legislature intended a different meaning. "(Campbell v. Zolin (1995) 33 Cal.App.4th 489, 497.) Here, the Legislature used two different sets of words: "insurer of the defendant" in subdivision (c) and "the defendant" in subdivision (d). We find no reason to believe the two sets of words should be equated. On their face they refer to two different kinds of persons involved in litigation: the actual defendant in a small claims action and that person's insurance company, who would not ordinarily be sued in small claims, but who still is on the hook for the judgment. The fact the defendant gives up the right to appeal by failing to appear says nothing about the insurer's right to appeal.
We note that subdivisions (c) and (d) are easily reconciled if we do not equate "the insurer" with the "the defendant." (See Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Ca1.3d 222, 230-231 [importance of reading statutes to be consistent with each other].) But to equate them requires the insertion of implied words into subdivision (d), contrary to the stricture set out in section 1858 that "the office of the Judge is . . . not to insert what has been omitted." If the Legislature had wanted subdivision (d) to read "If a defendant does not appear at the hearing, neither the defendant nor the defendant's insurer has a right to appeal the judgment . . ." it could have said so.
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