Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BC320869 Judith Chirlin, Judge.
Marvin L. Darden, in pro. per., for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
ALDRICH, J.
I.
INTRODUCTION
Plaintiff and appellant Marvin Darden appeals from an order of dismissal. We affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
On August 31, 2004, Darden filed a complaint alleging a cause of action for intentional bodily injury. The complaint named Cameron Hunt as the sole defendant.
On February 25, 2005, Darden amended his complaint. In his first amended complaint, Darden alleged that on August 8, 2002, there was a hate crime when he was physically assaulted and injured by Hunt and an accomplice, “because of his perceived (Sexual Orientation) -- violating Penal Code section 51.7 The [state’s] Ralph Act[;] Penal Codes 422.75(a)[;] 422.6(b)[; and] 1170.85” “under Civil Code section 52.” Darden alleged that he suffered property damage, and “physical/personal injury.”
There is no Penal Code section 51.7.
The complaint’s prayer for relief is in paragraph 14. In that paragraph, Darden did not check off the box which would have indicated that he was seeking compensatory damages. On the next line, Darden checked off a box indicating he was seeking punitive damages. However, he did not write in any amount which would have indicated the amount he was seeking for punitive damages. The next line of the prayer read, “The amount of damages (you must check (1) in cases for personal injury or wrongful death):
“(1) [ ] according to proof
“(2) [ ] in the amount of $150,000.00 25,000.00”
On May 22, 2006, default was entered against Hunt. After many failed attempts at procuring a default judgment, Darden appeared on April 20, 2007, submitted additional documents, and requested a default judgment be entered against Hunt.
On June 1, 2007, the trial court entered a minute order denying Darden’s request for default judgment and dismissing the case, concluding that the statute of limitations had expired and that Darden had not brought forth sufficient facts to toll the statute of limitations. The court subsequently entered a minute order which was signed by the trial court. (Code Civ. Proc., § 581d.)
On June 5, 2007, Darden appealed. He appears on appeal in propria persona. There is no appearance by Hunt. We affirm.
III.
DISCUSSION
Darden never provided Hunt with sufficient notice of the damages sought. Thus, Darden is precluded from obtaining a default judgment.
The trial court dismissed Darden’s case based upon the statute of limitations. Even if the statute of limitations had not expired, Darden failed to put Hunt on notice of the amount of damages sought.
The statute of limitations is an affirmative defense that is waived if not raised by a defendant. Since Hunt defaulted and did not answer, he waived the statute of limitations and the case was not subject to dismissal on that ground.
Pursuant to Government Code section 68081, we provided Darden with an opportunity to present his views on this issue through supplemental briefing. We additionally provided Darden with an opportunity to address the issue at oral argument.
Due process requires that a default judgment cannot be entered against a defendant unless the defendant has been provided with notice of the damages being sought. (Code Civ. Proc., §§ 580, 585, subd. (b); Greenup v. Rodman (1986) 42 Cal.3d 822, 826 [“due process requires formal notice of potential liability”]; In re Marriage of Lippel (1990) 51 Cal.3d 1160, 1166 [“It is fundamental to the concept of due process that a defendant be given notice of the existence of a lawsuit and notice of the specific relief which is sought in the complaint served upon him.”].) In order to obtain a default judgment, the complaint must have provided notice to the defendant of the type and amount of the relief sought. (Finney v. Gomez (2003) 111 Cal.App.4th 527, 539; Heidary v. Yadollahi (2002)99 Cal.App.4th 857, 867; Wiley v. Rhodes (1990) 223 Cal.App.3d 1470, 1474.)
In personal injury cases, this notice is to be provided in a statement of damages, rather than in the complaint. (Code Civ. Proc., §§ 425.10, 425.11.) Similarly, when seeking punitive damages, the amount sought is not to be specified in the complaint. (Civ. Code, § 3295, subd. (e).) If, however, a defendant is served with a complaint that includes allegations or other statements that put the defendant on notice of the damages that are being sought, a court may enter a default judgment against the defendant for an amount not to exceed that specified in the complaint. (Greenup v. Rodman, supra, 42 Cal.3d at p. 829 ; Schwab v. Rondel Homes, Inc. (1991) 53 Cal.3d 428, 435; Cummings Medical Corp. v. Occupational Medical Corp. (1992) 10 Cal.App.4th 1291, 1297-1298 [due process concerns satisfied when complaint’s allegations put defendant on notice of damages sought].)
Here, Darden did not serve a statement of damages. Thus, in order for him to receive an award of damages against Hunt in a default prove-up, Darden must have explicitly detailed the damages he sought. (Code Civ. Proc., §§ 580, 585, subd. (b); Greenup v. Rodman, supra, 42 Cal.3d at p. 826; In re Marriage of Lippel, supra, 51 Cal.3d at p. 1166; Heidary v. Yadollahi, supra, 99 Cal.App.4th at p. 864; Cummings Medical Corp. v. Occupational Medical Corp., supra, 10 Cal.App.4th at pp. 1297-1298.) Darden did not do so.
Darden did not request compensatory damages. In the complaint’s prayer in paragraph 14, Darden did not check off the box which would have indicated that he was seeking compensatory damages. Thus, he could not have sought compensatory damages for his personal injuries in a default judgment. The last line in paragraph 14 of the prayer does not cure this defect, even though it might be viewed as addressing personal injuries. Here, Darden did not clearly specify the amount of damages sought. Rather, he requested: “$150,000.00 25,000.00.” This statement of damages makes no sense, rendering it meaningless. These pleadings are too ambiguous to have put Hunt on notice that a specified sum was being sought for compensatory damages for personal injuries.
Darden also stated in his complaint that he was seeking property damages. However, Darden failed to allege that he was seeking compensatory damages and no other allegation in the complaint specifies the damages sought for such loss. Darden’s allegation seeking “$150,000.00 25,000.00” is too ambiguous to specify the amount being sought, even if it could be connected to a prayer for property damages.
With regard to punitive damages, Darden never specified any amounts he was seeking for such losses.
Civil Code section 52 permits trial courts to award exemplary damages, a civil penalty, and attorney fees for violations of Civil Code section 51.7, such as discriminatory acts of violence. (Civ. Code, § 52, subd. (b)(1), (2) & (3).) Here, it is unclear as to whether or not Darden was bringing an action against Hunt based upon Civil Code section 51.7. Rather, the complaint identifies a number of Penal Code sections, including Penal Code section “51.7 The [state’s] Ralph Act . . . .”
Civil Code section 51.7, subdivision (a) states: “All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51 [including sexual orientation], or because another person perceives them to have one or more of those characteristics. The identification in this subdivision of particular bases of discrimination is illustrative rather than restrictive.”
Further, assuming the complaint was sufficient to put Hunt on notice that Darden was alleging a cause of action based upon Civil Code section 51.7, and thus seeking damages pursuant to Civil Code section 52, Darden’s complaint never specified the amount of damages sought for these statutory rights. While Darden checked off a box stating that he was seeking punitive damages, he never indicated a monetary value for the amount sought. Darden never alleged he was seeking an award for damages as provided for by statute. (Since he was in propria persona, he would not have been entitled to attorney fees.) Thus, Darden failed to provide Hunt with notice of the type and amount of the relief sought with regard to any claims he might have for statutory relief. (Finney v. Gomez, supra, 111 Cal.App.4th at p. 539; Heidary v. Yadollahi, supra, 99 Cal.App.4th at p. 867 [“if punitive damages are to be awarded in a default judgment, the defendant must be notified of the specific amount sought prior to entry of the default”]; Wiley v. Rhodes, supra, 223 Cal.App.3d at p. 1474 [“A general allegation of entitlement to punitive damages is not reasonably calculated to apprise the defendant of potential financial liability for punitive damages if judgment is taken by default.”].)
With regard to any possible statutory remedies, Darden’s demand for “$150,000.00 25,000.00” does not cure the pleading errors. First, this statement is too ambiguous to have put Hunt on notice of the amount sought. Second, it was not connected to a statutory right, but possibly to a claim for personal injuries or wrongful death. Any statutory rights Darden might have had were unlike those he would have been entitled to for compensatory damages for personal injuries and had to be specifically requested. The statutory claims for damages were different in nature and purpose from other possible remedies. (Cf. Gudarov v. Hadjieff (1952) 38 Cal.2d 412, 417 [Since compensatory damages and punitive damages are different remedies in both nature and purpose, a “demand or prayer for one is not a demand legally, or otherwise, for the other, or for both”].)
Additionally, Darden’s failure to indicate in the complaint’s prayer that he was seeking statutory damages precludes him from asking for such damages. (Feminist Women’s Health Center v. Blythe (1995) 32 Cal.App.4th 1641, 1675 [to recover statutory attorney fees on default the amount had to be demanded in the prayer].)
Feminist Women’s Health Center v. Blythe, supra, 32 Cal.App.4th at page 1675 was distinguished on other grounds in Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 492.
Lastly, without unambiguous notice of the amount of compensatory damages being sought, it would have been impossible for the trial court to ascertain an award of punitive damages. (Adams v. Murakami (1991) 54 Cal.3d 105, 111-112, 122 [punitive damages must bear a proportionate relationship to compensatory damages].)
Because Darden never provided notice to Hunt of the damages sought, Darden would not have been entitled to a default judgment. Thus, we affirm the trial court’s order dismissing the case even though the trial court ruled on different grounds. (People v. Zapien (1993) 4 Cal.4th 929, 976; D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 18-19 [appellate court reviews the judgment or order and not the rationale].)
IV.
DISPOSITION
The order is affirmed. Darden is to bear his own costs on appeal.
We concur: CROSKEY, Acting P. J., KITCHING, J.
Penal Code section 422.75, subdivision (a) provides for an enhanced penalty for hate crimes. Penal Code section 422.6 provides that no person shall “injure, intimidate, interfere with, oppress, or threaten [another person because] of one or more of the actual or perceived characteristics of the victim” and no person shall damage or destroy personal or real property based upon the “actual or perceived characteristics of the victim . . . .” A person violating Penal Code section 422.6 is subject to punishment and fines. Penal Code section 1170.85 provides, in part, that the fact that a crime was committed against a victim who was particularly vulnerable may be a circumstance in aggravation.
Civil Code section 52 reads in part: “(b) Whoever denies the right provided by Section 51.7 . . ., or aids, incites, or conspires in that denial, is liable for each and every offense for the actual damages suffered by any person denied that right and, in addition, the following: [¶] (1) An amount to be determined by a jury, or a court sitting without a jury, for exemplary damages. [¶] (2) A civil penalty of twenty-five thousand dollars ($25,000) to be awarded to the person denied the right provided by Section 51.7 in any action brought by the person denied the right . . . . An action for that penalty brought pursuant to Section 51.7 shall be commenced within three years of the alleged practice. [¶] (3) Attorney’s fees as may be determined by the court. [¶] . . . [¶] (e) Actions brought pursuant to this section are independent of any other actions, remedies, or procedures that may be available to an aggrieved party pursuant to any other law. [¶] . . . [¶] (h) For the purposes of this section, ‘actual damages’ means special and general damages. This subdivision is declaratory of existing law.”
The last line of Civil Code section 52, subdivision (b)(2) was added to the statute in 2005, becoming effective on January 1, 2006 (Stats. 2005, ch. 123, § 1).