Opinion
A165332
05-12-2023
ALAN CLAIR, Plaintiff and Appellant, v. THOMAS MILLER, III, Defendant and Respondent.
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. CGC-19-572626
Fujisaki, J.
Under Code of Civil Procedure section 425.11, a plaintiff in a personal injury or wrongful death action must serve the defendant with a statement setting forth the nature and amount of damages being sought "before a default may be taken." (§ 425.11, subd. (c).) This statutory requirement protects the defendant's due process right to receive actual notice of his or her potential liability before deciding whether to permit a default to be taken.
Further unspecified section references are to the Code of Civil Procedure.
In this action for personal and other injuries, plaintiff Alan Clair obtained a default judgment against defendant Thomas Miller, III, but the trial court later vacated the judgment after finding that plaintiff did not serve defendant with the section 425.11 statement of damages prior to the court clerk's entry of default. On appeal, plaintiff concedes that an initial entry of default was defective but contends the error and any due process concerns were ameliorated by a subsequent entry of default, before which defendant had been served with the section 425.11 statement.
We conclude the trial court did not abuse its discretion in vacating the default judgment because the second entry of default did not operate to strike, set aside, or otherwise correct the defective entry of default. To the contrary, the defective entry of default remained on the judgment roll and was cited by both plaintiff and the trial court in the prove-up proceedings. Though belatedly served with the section 425.11 statement of damages, defendant was deprived of his right to make an informed decision whether to permit a clerk's default. Accordingly, we affirm the trial court's decision to vacate the default judgment.
Factual and Procedural Background
In January 2019, plaintiff filed a complaint against defendant for various causes of action including violations of a local rental ordinance; breach of the implied covenant of quiet enjoyment; nuisance; breach of the warranty of habitability; negligence; negligent and intentional infliction of emotional distress; and conversion. The complaint alleged that defendant, who was plaintiff's landlord, failed to provide habitable rental premises; entered the premises unlawfully; stole plaintiff's personal property; and wrongfully and forcibly evicted plaintiff. Plaintiff sought damages "in amounts to be determined at trial," civil penalties, relocation expenses, reasonable attorney fees, costs of suit, and punitive damages.
Defendant did not timely answer or respond to the complaint.
In March 2019, plaintiff filed a request for entry of default on Judicial Council Forms, form CIV-100 (form CIV-100). In his request, plaintiff left blank the spaces for the amounts demanded in the complaint and the section 425.11 statement of damages.
On March 11, 2019, the trial court clerk entered default as requested (hereafter the 3/11/19 entry of default).
In January 2020, plaintiff filed a second form CIV-100 requesting entry of default and a court judgment. This time, the form set forth the specific amounts that plaintiff was requesting in the complaint and the section 425.11 statement of damages.
On January 2, 2020, the trial court clerk entered default as requested in the second form CIV-100 (hereafter the 1/2/20 entry of default), and plaintiff moved for default judgment.
In March 2020, plaintiff filed his section 425.11 statement of damages. The statement, dated December 17, 2019, identified plaintiff's damages as follows: $50,000 in general damages; $60,000 in special damages for property damage and replacement housing costs; $15,000 in attorney fees; and $375,000 in punitive damages. The attached proof of service indicated that defendant was personally served with the section 425.11 statement on December 18, 2019, at an address on Carter Drive in South San Francisco.
In September 2020, the Honorable Gerardo Sandoval held a prove-up hearing on plaintiff's motion for default judgment. During the hearing, Judge Sandoval stated his intention to award plaintiff the damages he "stated in [his] statement of damages. I understand those were also served on the defendant on December 18, 2019. That is the statement of damages."
On November 20, 2020, the trial court entered a default judgment against defendant in the amount of $346,849.60.
In January 2021, defendant moved to set aside the default judgment under section 473.5, arguing that service of summons did not result in actual notice to him in time to defend the action because he did not live at the Carter Drive address.
In March 2022, the Honorable Charles F. Haines held a hearing on defendant's motion. Judge Haines heard testimony from the process server and defendant before announcing his decision to deny defendant's motion to vacate the default judgment. As the trial court explained, "the process server is entitled to the presumption under Evidence Code [s]ection 664 of performing official duties, and that presumption has not been overcome."
However, Judge Haines then exercised his discretion to vacate the default judgment on the court's own motion, stating, "if you look closely at this, there's to be no default. In other words, it looks like the clerk made a mistake in entering this default because there was not a statement of damages that was submitted and served prior to the default. And, also, the only exception to that is when you look at the complaint which we did, we looked at the complaint, there is no mention in the complaint of this $300,000 amount that they are claiming. So this default should have never been entered in the first place, and the Court in its own motion is duty-bound to set it aside."
Plaintiff's counsel conceded that the 3/11/19 entry of default was "void" because the section 425.11 statement of damages had not been served on defendant at the time default was entered. However, counsel argued that the defect was "cured" when Judge Sandoval entered default on January 2, 2020, since by that time, defendant had been served with the statement of damages. Judge Haines "[stood] by [his] original orders" and denied defendant's motion, but set aside the default judgment on the court's own motion. As reflected in the trial court's written order after the hearing, "[t]he court denie[d] the motion under Code of Civil Procedure [section] 425.11. However, due to a clerical error the court set[]aside the [d]efault/[d]efault [j]udgment."
Plaintiff timely appealed. (See Manson, Iver &York v. Black (2009) 176 Cal.App.4th 36, 42 [order vacating default and default judgment is appealable as order after final judgment].)
Discussion
Preliminarily, we note that defendant did not file a respondent's brief. (Cal. Rules of Court, 8.200(a)(2).) "Although some courts have treated the failure to file a respondent's brief as in effect a consent to a reversal, it has been said that the 'better rule . . . is to examine the record on the basis of appellant's brief and to reverse only if prejudicial error is found.'" (In re Bryce C. (1995) 12 Cal.4th 226, 232-233; see Cal. Rules of Court, rule 8.220(a)(2).) On that score, we note it is a "cardinal rule of appellate review that a judgment or order of the trial court is presumed correct and prejudicial error must be affirmatively shown. [Citation.] 'In the absence of a contrary showing in the record, all presumptions in favor of the trial court's action will be made by the appellate court.'" (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187.) We review an order providing relief from a default judgment for abuse of discretion. (Luxury Asset Lending, LLC v. Philadelphia Television Network, Inc. (2020) 56 Cal.App.5th 894, 907.)
The procedure for obtaining a default judgment begins with the clerk's entry of default. In actions other than those on a contract or for a definite amount of money damages, if the defendant has been served other than by publication and has not timely filed an answer or responsive motion (e.g., demurrer, motions to strike or quash), "the clerk, upon written application of the plaintiff, shall enter the default of the defendant." (§ 585, subd. (b).)
"The entry of a default terminates a defendant's rights to take any further affirmative steps in the litigation until either its default is set aside or a default judgment is entered. [Citations.] 'A defendant against whom a default has been entered is out of court and is not entitled to take any further steps in the cause affecting plaintiff's right of action; he [or she] cannot thereafter, until such default is set aside in a proper proceeding, file pleadings or move for a new trial or demand notice of subsequent proceedings." (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385-386 (Devlin).)
After entry of default, the plaintiff "may apply to the court for the relief demanded in the complaint" by filing a motion for a default judgment. (§ 585, subd. (b).) The trial court will then hold a prove-up hearing in which the court "shall hear the evidence offered by the plaintiff, and shall render judgment in the plaintiff's favor for that relief, not exceeding the amount stated in the complaint, in the statement required by Section 425.11, or in the statement provided for by Section 425.115, as appears by the evidence to be just." (§ 585, subd. (b).)
In this way, section 425.11 sets forth both a procedural prerequisite and substantive limit on default judgments by requiring a personal injury or wrongful death plaintiff to" 'give notice to the defendant of the amount of special and general damages sought to be recovered . . . before a default may be taken.'" (Schwab v. Rondel Homes (1991) 53 Cal.3d 428, 432 (Schwab).) The statute expressly provides that "the plaintiff shall serve the statement on the defendant before a default may be taken." (§ 425.11, subd. (c), italics added.)
Section 425.11" 'give[s] defendants "one last clear chance" to respond to allegations of complaints by providing them with "actual" notice of their exact potential liability.'" (Lopez v. Fancelli (1990) 221 Cal.App.3d 1305, 1310 (Lopez).) The purpose of the statute is to protect the defendant's due process right to receive notice of the existence of the lawsuit and the amount of liability to which he or she may be subjected "a reasonable period of time before default may be entered." (Schwab, supra, 53 Cal.3d at p. 435; see Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1520 (Van Sickle).) "[A]s 'knowledge of the alleged amount of damages may be crucial to a defendant's decision whether to permit a clerk's default' [citation], liability imposed upon a defaulting defendant without notice of the amount of damages claimed violates both sections 425.11 and 580." (Schwab, at p. 433.) Accordingly," '[a] default judgment greater than the amount specifically demanded is void as beyond the court's jurisdiction.' [Citation.] [¶] Not only is a default judgment for an amount greater than that specifically demanded void, but when a statement of damages is required but not served, the underlying entry of default is invalid also and is subject to set-aside." (Van Sickle, at p. 1521.)
With these authorities in mind, we now turn to the facts of this case. There is no dispute that the 3/11/19 entry of default was defective and subject to being set aside because plaintiff did not serve defendant with the section 425.11 statement before entry of default. (See Van Sickle, supra, 196 Cal.App.4th at p. 1521; § 425.11, subd. (c).) Plaintiff maintains nonetheless that the defective 3/11/19 entry of default was not "carried into the judgment" and "had no bearing on the case" because the trial court-which had both statutory and inherent powers to correct clerical errors in its judgments (§ 473; In re Conservatorship of Tobias (1989) 208 Cal.App.3d 1031, 1034)- made such a correction when the clerk entered defendant's default for a second time on January 2, 2020, after defendant had been personally served with the section 425.11 statement. In effect, plaintiff argues, the 1/2/20 entry of default "cured" the defective 3/11/19 entry of default. We see no basis for relief.
The problem with plaintiff's argument is that the record discloses no order expressly striking or setting aside the 3/11/19 entry of default prior to Judge Haines's finding of clerical error. Instead, for many months, the 3/11/19 entry of default remained on the judgment roll, even after the 1/2/20 entry of default. There is no record of a motion or request to set aside the 3/11/19 entry of default; nor is there any indication that the 1/2/20 entry of default reflected Judge Sandoval's intent to strike or set aside the 3/11/19 entry of default sua sponte. Thus, while we agree with plaintiff that "[t]he March 11, 2019 Request for Entry of Default should have been stricken from the record," the onus was on plaintiff to seek such relief from the trial court. And even though the court had the inherent power to correct the defect sua sponte, the clerk's mere acceptance of the second form CIV-100 in January 2020 was a purely "ministerial act" (First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 960) that did not reflect an exercise of judicial discretion by the trial court.
The record confirms the 3/11/19 entry of default remained unstricken. Indeed, plaintiff's brief in support of his motion for default judgment (filed on January 2, 2020) cited to the 3/11/19 entry of default-not the 1/2/20 entry of default-in setting forth the procedural background of the case. Plaintiff also attached the 3/11/19-not the 1/2/20- entry of default in his supporting request for judicial notice. Likewise, at the default prove-up hearing, Judge Sandoval indicated "for the record" that "a default was entered on March 11, 2019." In other words, not only was the 3/11/19 never explicitly set aside, but it was cited by both plaintiff and the trial court as the basis for moving forward with the default judgment. Accordingly, the record fails to support plaintiff's supposition that the 1/2/20 entry of default amounted to a sua sponte correction of the trial court's defective 3/11/19 entry of default.
Plaintiff nevertheless insists that defendant's due process rights were satisfied because he was given actual notice of plaintiff's special and general damages when he was served in December 2019 with the section 425.11 statement. We disagree that the December 2019 service satisfied the due process protections of section 425.11. As the above authorities make clear, defendant was entitled to actual notice of his potential liability "a reasonable period of time before default may be entered" so that he could make an informed" 'decision whether to permit a clerk's default'" (Schwab, supra, 53 Cal.3d at p. 433). At the time of the 3/11/19 entry of default, however, defendant did not have actual notice of the amount of damages sought by plaintiff. And notably, once default was entered, defendant was "out of court" with no ability to take any further steps in the litigation until the default was set aside. (Devlin, supra, 155 Cal.App.3d at pp. 385-386.) In short, defendant was deprived of his"' "one last clear chance" '" to respond to the complaint with actual notice of his potential liability prior to the entry of default. (Lopez, supra, 221 Cal.App.3d at p. 1310.) That defendant eventually received actual notice of plaintiff's damages claims in December 2019 did not cure the due process problem occasioned by the entry of a defective default against him.
In sum, plaintiff fails to demonstrate the trial court abused its discretion in vacating the default judgment.
Disposition
The trial court's order vacating the default judgment is affirmed. Defendant shall recover his costs on appeal, if any.
WE CONCUR: Tucher, P.J. Rodriguez, J.