Beeman v. Burling
| Decision Date | 09 January 1990 |
| Docket Number | No. A041335,A041335 |
| Citation | 216 Cal.App.3d 1586,265 Cal.Rptr. 719 |
| Court | California Court of Appeals Court of Appeals |
| Parties | John BEEMAN, Plaintiff and Respondent, v. Spencer M. BURLING, Defendant and Appellant. |
Michael S. Rossoff, David L. Matt, San Francisco, for plaintiff and respondent.
E. Elizabeth Summers, Oakland, Ronald J. Souza, San Francisco, for defendant and appellant.
Appellant Spencer M. Burling appeals a default judgment rendered against him in the amount of $197,044.01. He asserts (1) the default judgment must be vacated because he was not personally served with the statement of damages and because respondent's proof at the default hearing amounted to a de facto amendment of the complaint, which should have revived appellant's ability to respond; (2) the judgment relies upon two sections of the San Francisco Rent Ordinance that are unconstitutional; (3) the judgment exceeds the relief demanded and thus must be reduced; and (4) the court abused its discretion in denying relief from default under Code of Civil Procedure section 473. We affirm.
Appellant purchased an apartment building at 76 Deming Street in March 1986. On approximately March 24 he served an eviction notice upon respondent John Burling, indicating he wished to occupy respondent's unit himself. 1 Respondent moved out of the apartment on April 1. Respondent testified that although appellant did move into the vacated apartment, he lived there for less than three months. The San Francisco Rent Ordinance (Rent Ordinance) requires an owner to reside for 12 months in an apartment that has been vacated pursuant to an "owner move-in" eviction notice. (8))
On May 20, 1986 appellant served an eviction notice upon another tenant, Richard Kronstedt. Mr. Kronstedt testified that the notice indicated appellant's business partner was intending to occupy that unit. He vacated the apartment on approximately June 12, 1986. Similarly, in June 1986 another tenant, Steve Munnell, received an "owner move-in" eviction notice from appellant's business partners, Emmett Hayes and Robert Hill.
In August 1986 respondent sued appellant for wrongful eviction. Following appellant's motion to strike respondent filed a first amended complaint. The amended complaint alleged that appellant had wrongfully evicted respondent with the intention of renting the vacated unit at a higher rental and thus increasing the building's overall value. The complaint set forth 14 causes of action, including actions for negligence, constructive eviction, fraud and violation of the Rent Ordinance. Respondent sought special and general damages according to proof, punitive damages and treble statutory damages under the Rent Ordinance.
Appellant demurred and moved to strike portions of the amended complaint. Following a hearing on January 20, 1987 the court overruled the demurrer, granted the motion to strike in part and ordered appellant to respond to the complaint within 30 days.
Four other tenants of 76 Deming street also filed suit against appellant alleging similar causes of action. All were represented by the attorney representing respondent. Counsel eventually agreed that appellant would respond to all of the complaints on or before May 16, 1987. Timely answers were filed in three of the pending cases. On May 22 respondent's counsel served appellant's counsel, Mr. Zimmerman, with statements of damages in the instant case and in the case filed by another tenant, Richard Kronstedt. Respondent also offered, pursuant to Code of Civil Procedure section 998, to settle the matter for $30,000. On June 19, respondent's counsel wrote to Zimmerman, warning that he would take appellant's default in the Kronstedt and Beeman cases if no response was filed by June 17. No answers were filed.
Appellant's counsel did not respond to the default warning because he was distracted by the hospitalization of his girlfriend on June 20. During the hospitalization his girlfriend's young daughter was left in the care of her grandfather, who is mentally impaired, and counsel was required to assume significant responsibility for the care of the child.
According to Zimmerman's declaration, during this time he believed an answer had been properly filed in this matter. He did not notice any letters threatening a default until he received a request to enter default on July 1, 1987. Respondent's counsel refused to have the default set aside, stating his client would not permit him to do so; however, counsel did grant appellant's attorney an extension to respond in the Kronstedt matter. By his own admission, Zimmerman "simply blocked the case out of [his] mind" and did not file a motion to have the default set aside.
A hearing on the default judgment was held on October 21, 1987. Respondent and three other tenants testified regarding the eviction notices they received when they lived at 76 Deming Street. Stephen Munnell asserted that appellant was "unpleasant" and "threatening" and "did everything to make [the tenants] feel completely uneasy." Richard Kronstedt described appellant's "intimidating manner" and stated he was "very rude [and] very abrupt." Maurice Jarrett also complained that he felt threatened by appellant and was intimidated by appellant yelling at the tenants that they were to " 'get out or else.' " The witnesses also testified that following respondent's eviction appellant did not occupy respondent's apartment for a continuous 12-month period, a fact which under the Rent Ordinance raises a presumption that the eviction was not a valid "owner-occupy" eviction. Based on this evidence the court awarded respondent $197,044.01 in damages, costs and disbursements.
Appellant was unaware of these proceedings and did not learn of the judgment until he retained new counsel on November 2, 1987. His new counsel moved for relief from default on the grounds that (1) the default was taken in violation of Code of Civil Procedure section 425.11, which, he alleges, has been construed to require personal service of a statement of damages; and (2) an answer was not filed due to his former counsel's excusable mistake and neglect, which warrants the granting of relief from default under Code of Civil Procedure section 473. The court denied the motion on the ground that appellant had not demonstrated the default resulted from counsel's excusable neglect.
Appellant moved for reconsideration of the motion to vacate the default; respondent objected, arguing the motion was untimely and did not allege any new facts. The court denied the motion because no new facts were alleged and the record was inadequate to establish abandonment.
This timely appeal followed.
Code of Civil Procedure section 425.11 provides, in pertinent part, that "the plaintiff shall give notice to the defendant of the amount of special and general damages sought to be recovered (1) before a default may be taken...." 2 Appellant argues, based on Engebretson & Co. v. Harrison (1981) 125 Cal.App.3d 436, 178 Cal.Rptr. 77 and Plotitsa v. Superior Court, supra, 140 Cal.App.3d 755, 189 Cal.Rptr. 769 that respondent's service of the statement of damages was insufficient since it was mailed to appellant's counsel, rather than personally served upon appellant.
In Engebretson, the court determined that where a defendant has failed to appear, personal service of an amended complaint is a prerequisite to a valid default judgment. (125 Cal.App.3d at pp. 440-444, 178 Cal.Rptr. 77.) The court reasoned that nonappearing and defaulting defendants, who already have decided to permit a default judgment for the amount originally sought, might not pay adequate attention to an amendment served by mail, since they may mistakenly view it as merely a procedural step to obtaining the default judgment. In Plotitsa, the court used the same reasoning in holding that the defendants, who had not made an appearance in the action, were entitled to personal service of the statement of damages required prior to entry of a default judgment. (Plotitsa, supra, 140 Cal.App.3d at pp. 759-761, 189 Cal.Rptr. 769.)
Despite the fact that Engebretson and Plotitsa both involved nonappearing defendants, appellant urges us to extend this rule to defendants who have appeared in the action. He argues the purpose of Code of Civil Procedure section 425.11--to give the defendant one "last clear chance" to respond to the allegations--applies with even greater force to a litigant who has appeared and thus expressed his desire to present a defense.
We disagree with appellant's argument. Appellant does not deny that he made an appearance in this action when he filed a demurrer and motion to strike. (Code Civ.Proc., § 1014 [].) He also does not dispute the fact that he was represented by counsel. He is therefore unlike the defendants in Plotitsa, who made no appearance and were unrepresented by counsel. Moreover, in Plotitsa there was a question as to whether service upon the defendants was effective; in the instant case the statutory notice admittedly was received, but went unheeded. On the facts presented we see no reason to extend Plotitsa to require personal service upon a defendant who, by filing a demurrer and a motion to strike, has made an appearance in the action.
Appellant admits his attorney was properly served with--and actually received--a statement of damages prior to the default. Thus, appellant's problem arises not from the mode of service, but from appellant's attorney's failure to respond to the threatened default. We therefore reject appellant's contention and conclude the statement of damages was properly served by mail upon appellant's counsel. 3
Appellant maintains that...
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