Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. CIV084999
Margulies, J.
The trial court granted Joe Lacome’s motion to vacate a default judgment Cody Molica obtained against him on the grounds that the complaint failed to adequately specify the money damages sought. We reverse, finding that although Molica failed to include a prayer for damages with his complaint, the allegations contained in the body of the complaint did give Lacome adequate notice of the maximum damages sought.
I. BACKGROUND
A. Allegations of the Complaint
On October 10, 2008, Molica, in pro. per., filed a complaint against Joe Lacome and Pacific Motors alleging causes of action for breach of contract, conversion, and unfair business practices. The complaint alleged in substance that Molica, a licensed automotive salesperson, began discussions with Lacome in 2008 about Lacome starting an automotive dealership. With Molica’s help, Lacome applied for and received from the California Department of Motor Vehicles approval to start an auto dealership. Molica began working for Lacome as a vehicle salesperson who was to be paid a $200 commission per car sold. Molica would accompany Lacome on weekly trips to two auto auctions in Northern California. Molica would sell the cars and when repairs were necessary he filled in as a part-time mechanic working out of the garage of Lacome’s Novato residence. The cars would be advertised on the Internet Web site Craigslist, and Molica would meet the customers at a shopping center. Most of the cars were in need of repair.
The complaint further alleged in paragraphs Nos. 7, 8, and 9 as follows: “7.... Lacome expressly stated that he would pay Molica back for all of the parts that he bought with his own credit cards after the sale of the car that was to be repaired. This arrangement worked in the beginning however Lacome began to lapse on his reimbursements to the point where Lacome now says that he doesn’t have the money to pay Molica back. [¶] 8. Lacome asked Molica if he could barrow [sic] some money to buy more cars via Molica’s credit card convenience checks. Lacome stressed that if he had more inventory he could give Molica more chances to make commissions and work full time. Molica began to write Lacome these convenience checks out to Pacific Motors and Lacome invested them in new inventory with the express promises that he would pay Molica back. [¶] 9. Interest rates and minimum payments on these convenience checks which total about $20,000 began to toll on Molica. In addition Molica had spent close to $7,000 on auto parts and automotive paint which he is having a difficult time getting Lacome to compensate him for.”
The complaint goes on to allege that Lacome ultimately told Molica he could not pay him back and that he had spent the money loaned by Molica on his personal finances. At the end of September 2008, Molica presented Lacome with an accounting of what he was owed, and requested his money. Lacome said he had spent all of the money on household expenses and could not pay. Lacome promised he would sell off the remaining cars and give Molica the proceeds. The complaint alleged that Lacome thereafter received $3,500 in revenues from the sale of a 1999 Acura Integra they had both worked on, but only offered to pay Molica $1,000 of the proceeds.
The complaint further alleged that Molica and Lacome had stipulated that Molica’s loans were short-term loans to be used for the business and that “Lacome would pay Molica back all of the principle, ” which he has refused to do. The complaint did not contain a separate prayer stating the amount of damages being requested, or other relief sought, as required by Code of Civil Procedure section 425.10, subdivision (a)(2).
Code of Civil Procedure section 425.10 states in relevant part: “(a) A complaint or cross-complaint shall contain both of the following: [¶] (1) A statement of the facts constituting the cause of action, in ordinary and concise language. [¶] (2) A demand for judgment for the relief to which the pleader claims to be entitled. If the recovery of money or damages is demanded, the amount demanded shall be stated.”
B. Proceedings in the Trial Court
After three attempts to personally serve Lacome at his Novato residence, the complaint was left at that location in the presence of a person known to the process server to be Lacome’s roommate and girlfriend, who refused to accept the documents, denied Lacome still lived there, and declined to provide Lacome’s current address. After Lacome failed to answer the complaint, Molica filed a request for a default judgment of $25,273.85, plus court costs, on January 16, 2009. Molica claimed $26,273.85 in damages based on the complaint, less a credit acknowledged of $1,000, for a balance of $25,273.85. He claimed court costs for filing and service of $475. Lacome successfully moved to set aside the default judgment on the grounds of improper service.
Molica made further unsuccessful attempts to serve Lacome personally and by mail at the Arizona address he used in his motion to set aside the default judgment. When those efforts failed, Molica obtained an order from the court permitting service by publication in Arizona. When Lacome again failed to answer the complaint, Molica obtained a second default judgment for $25,748.85, including costs. Lacome again moved to set aside the default judgment on the grounds that service had been improper. That motion was denied.
Lacome thereafter filed a motion to vacate the default judgment under Code of Civil Procedure section 473, on the grounds that the judgment was void under Code of Civil Procedure section 580, subdivision (a), because the complaint failed to specify a demand for damages. The trial court granted Lacome’s motion, and this appeal followed.
Code of Civil Procedure section 580, subdivision (a) states in relevant part: “The relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint, in the statement required by Section 425.11, or in the statement provided for by Section 425.115; but in any other case, the court may grant the plaintiff any relief consistent with the case made by the complaint and embraced within the issue.” (Italics added.)
II. DISCUSSION
Molica contends the trial court erred in finding that his complaint did not specifically and adequately state the money damages sought, and in holding on that basis that the court had no power to enter a default judgment. We agree.
As an initial matter, a proper prayer for relief is not considered to be part of the complaint itself, and the failure to include one neither deprives the court of jurisdiction nor supports a general demurrer. (See County of Riverside v. Butcher (1901) 133 Cal. 324, 327; Kohler v. Agassiz (1893) 99 Cal. 9, 16; Greenup v. Rodman (1986) 42 Cal.3d 822, 826.) It is true under the case law that the absence of a prayer is especially problematic in the case of a default (see Greenup, at pp. 826–827), but even in that case “the allegations of a complaint may cure a defective prayer for damages.” (Id. at pp. 829–830 [rejecting claim that because plaintiff stated no amount of damages in her prayer, she was entitled to no compensatory damages whatever; damages of $15,000 were allowed since the body of complaint alleged plaintiff suffered damages “ ‘in an amount that exceeds [this court’s] jurisdictional requirements’ ”].)
The proper rule in applying Code of Civil Procedure section 580 in breach of contract cases is that “courts must look to the prayer of the complaint or to ‘allegations in the body of the complaint of the damages sought’ to determine whether a defendant has been informed of the ‘maximum liability’ he or she will face for choosing to default.” (People ex rel. Lockyer v. Brar (2005) 134 Cal.App.4th 659, 667 (Brar), quoting National Diversified Services, Inc. v. Bernstein (1985) 168 Cal.App.3d 410, 417–418 (National Diversified); see also Parish v. Peters (1991) 1 Cal.App.4th 202, 216 [“To pass constitutional muster, the complaint must either allege a specific dollar amount of damages in the body or prayer”].) When a judgment is vacated on the ground the damages awarded exceeded those pled, the appropriate action is to modify the judgment to the maximum amount warranted by the complaint. (Ostling v. Loring (1994) 27 Cal.App.4th 1731, 1743 (Ostling).)
Brar arose from a complaint filed by the Attorney General seeking statutory penalties against an attorney who repetitively filed “shakedown” lawsuits against small businesses. (Brar, supra, 134 Cal.App.4th at p. 661.) The complaint, which sought damages in an amount of “ ‘no less than’ $1 million, ” resulted in a default judgment for $1,787,500 in civil penalties. (Id. at pp. 662, 666.) However, because the complaint stated it was seeking a statutory penalty of $2,500 per violation of the unfair competition law (Bus. & Prof. Code, § 17200 et seq.), and alleged that approximately 500 nail salons had been named as Doe defendants in each of at least three separate lawsuits, the court found the defendant could have calculated potential damages from the face of the complaint of at least $3.75 million (i.e., $2,500 times 1, 500). (Brar, at pp. 667–668.) Applying the rule cited from National Diversified, the Brar court held that the allegations of the complaint afforded the defendant fair warning of his potential liability, and affirmed the denial of his motion to set aside the $1,787,500 default judgment. (Brar, at pp. 668–669.)
The trial court erred in this case by failing to analyze whether the body of Molica’s complaint afforded Lacome fair warning of the potential damages he would face if Molica obtained a default judgment. In our view, it did. Paragraphs Nos. 7, 8, and 9 clearly allege maximum damages of $27,000, based on short-term loans totaling $20,000, plus $7,000 of funds advanced for auto parts for which Lacome had promised reimbursement. The complaint further alleged Lacome’s failure and refusal to repay the loans or reimburse Molica for his auto parts purchases. Based on these allegations, the “maximum amount warranted by the complaint” (Ostling, supra, 27 Cal.App.4th at p. 1743) was less than the amount of the default judgment, and the trial court therefore should have denied Lacome’s motion to void the judgment under Code of Civil Procedure section 473.
Lacome asserts the correct rule is that courts may only look to the body of the complaint for notice of damages if the prayer is “defective, ” but may not do so if the prayer has been omitted entirely. He cites no authority making that distinction. We can think of no rational reasons to distinguish between a complaint that lacks a proper demand for specific damages and one that lacks a formal prayer. In each case, the issue is whether the complaint affords a defaulting defendant adequate notice of the maximum judgment that could be assessed against him. (Becker v. S.P.V. Construction Co. (1980) 27 Cal.3d 489, 493.) Here, the complaint did adequately inform Lacome that Molica was seeking no more than $27,000 in damages. We also reject Lacome’s claim that the complaint was ambiguous about how much of the $27,000 amount Molica alleged he was still owed. We find no such ambiguity.
III. DISPOSITION
The trial court’s July 19, 2010 order granting defendant Lacome’s motion to vacate the judgment is reversed and the matter is remanded to the trial court with directions to enter a new order denying the motion. Lacome shall pay Molica’s costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
We concur: Marchiano, P.J., Dondero, J.