Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc.

• Decision Date: 04 May 1984
• Citation: 155 Cal.App.3d 381,202 Cal.Rptr. 204
• Court: California Court of Appeals Court of Appeals
• Parties: Frank L. DEVLIN, et al., Plaintiffs and Respondents, v. KEARNY MESA AMC/JEEP/RENAULT, INC., etc., Defendant and Appellant. D001231. Civ. 31540.

Page 204

202 Cal.Rptr. 204

155 Cal.App.3d 381

Frank L. DEVLIN, et al., Plaintiffs and Respondents, v. KEARNY MESA AMC/JEEP/RENAULT, INC., etc., Defendant and Appellant.

D001231.

Civ. 31540.

Court of Appeal, Fourth District, Division 1, California.

May 4, 1984.

As Modified on Denial of Rehearing May 24, 1984.

Hearing Denied July 11, 1984.

Oliver, Sullivan, Cummins & Wertz and Steven G. Amundson, San Diego, for defendant and appellant.

Davies, Barwick & Knowlton, Robert W. Knowlton and David L. Bain, Lemon Grove, for plaintiffs and respondents.

WIENER, Associate Justice.

Defendant Kearny Mesa AMC/Jeep/Renault, Inc. (Kearny Mesa) appeals a second time from the judgment in favor of plaintiffs Frank L. and Helen B. Devlin (Devlins).

In its first appeal Kearny Mesa challenged the procedural aspects leading up to its default and a default judgment of $3,425.69 compensatory damages and $80,000 punitive damages. We rejected Kearny Mesa's procedural arguments and affirmed the orders denying its motions to quash service of process and to set aside its Through new counsel on this appeal, Kearny Mesa argues the court improperly excluded it from participating in proceedings on remand and the amount of punitive damages awarded is excessive as a matter of law. As we shall explain, we conclude Kearny Mesa's arguments are without merit and affirm the judgment.

default and default judgment. (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (June 22, 1983) 4 Civ. No. 26726 [unpub. opn.].) We affirmed the judgment with respect to Kearny Mesa's liability for compensatory and punitive damages. We reduced the compensatory damages to $3,000 and, as modified, also affirmed that part of the judgment. We explained, however, although an award of punitive damages was warranted (see Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 928, 148 Cal.Rptr. 389, 582 P.2d 980), the amount of that award was factually unsupported because there was no evidence of Kearny Mesa's wealth. Accordingly, we reversed the judgment solely with respect to the amount of punitive damages and remanded the case for a redetermination of that award. Upon remand, the trial court ruled Kearny Mesa could not participate in further proceedings and, after a judgment hearing, again awarded the Devlins $80,000 punitive damages.

Factual and Procedural Background

After the remittitur was filed in the first appeal, Kearny Mesa was prevented from taking the deposition of the Devlins' accountant. The court had issued a protective order on the ground Kearny Mesa had no standing to participate because of the earlier entry of its default. At the hearing to determine punitive damages, after both parties argued the effect of the default on Kearny Mesa's right to participate, the court again ruled the default prevented Kearny Mesa's direct involvement in further proceedings.

The Devlins' certified public accountant, William Wade, and Kearny Mesa's office manager, Mary Sampley, testified at the December 1983 hearing. Wade, a former manager for the accounting firm of Arthur Andersen and Company, said Sampley had provided him with the financial records of Kearny Mesa for the years 1981 through October 1983.

The financial statements prepared in the format used by American Motors were consistent with Kearny Mesa's computerized general ledger. The financial statements for the months of August, September and October 1983 were identified by Sampley as correct copies of the originals.

Wade noted an unusual deduction in Kearny Mesa's retained earnings. He stated Sampley had not explained the adjustment nor were there any entries in the journal showing the reason for the change. The effect of the deduction was to reduce the net worth of Kearny Mesa by $175,725. Perhaps coincidentally, this accounting entry was made shortly before oral argument on the previous appeal.

Wade explained in October 1983 Kearny Mesa's net worth, increased by the unexplained accounting adjustment, was $415,000 ¹ and its year-end projected net worth was $457,000. Ten months net profit was $207,000 on gross sales of $4,352,000. Annual gross sales were projected to be $5,223,000. Kearny Mesa had current liabilities of $989,000 and current assets of $1,269,000, of which $430,000 was "paid-in capital." "Paid-in capital" was defined as money put into the enterprise by the owners to assist in financing operations. Kearny Mesa's financial records also included a corporate resolution authorizing the borrowing of up to $1.5 million from the Bank of America.

Discussion

The Court Correctly Prevented Kearny Mesa's Participation in the Judgment Hearing

Our first decision rightly assumed Kearny Mesa, having defaulted, knew it could not participate in a judgment hearing on punitive damages. The entry of a default terminates a defendant's rights to take any further affirmative steps in the Kearny Mesa appears to have a jaundiced view of the capability of trial courts. It argues a court can decide wisely only in an adversary context. The ex parte nature of a judgment hearing following default (see Don v. Cruz (1982) 131 Cal.App.3d 695, 702, 182 Cal.Rptr. 581) does not dilute a court's ability to weigh and consider the evidence and to reach a fair result. If a court thinks additional evidence is necessary, the case can be continued for further proceedings so the judgment will be supported by complete and accurate information. (See Code Civ.Proc., § 585, subd. (b).) Under no circumstances will a defaulted defendant suffer judgment for a claim of unliquidated damages or for an amount in excess of that stated in the complaint. (See Code Civ.Proc., §§ 425.10, subd. (b), 425.11, 580; Petty v. Manpower, Inc. (1979) 94 Cal.App.3d 794, 797-798, 156 Cal.Rptr. 622.)

                litigation until either its default is set aside or a default judgment is entered.  (Forbes v. Cameron Petroleums, Inc.  (1978) 83 Cal.App.3d 257, 262-263, 147 Cal.Rptr. 766;  4 Witkin, Cal.Procedure (2d ed. 1971) Proceedings Without Trial, § 148, p. 2809;  see Luz v. Lopes (1960) 55 Cal.2d 54, 59, fn. 2, 10 Cal.Rptr. 161, 358 P.2d 289.)  "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 [155 Cal.App.3d 386] of action;  he 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."  (Brooks v. Nelson (1928) 95 Cal.App. 144, 147-148, 272 P. 610.)   And, even where a default judgment is "vacated, it would be the duty of the court immediately to render another of like effect, and the defaulting defendants would not be heard for the purpose of interposing any denial or affirmative defense."  (Title Insurance Etc.  Co. v. King Etc.  Co. (1912) 162 Cal. 44, 46, 120 P. 1066, italics added.)
                

In asserting the error of its exclusion, Kearny Mesa relies heavily on Vossler v. Richards Mfg. Co. (1983) 143 Cal.App.3d 952, 192 Cal.Rptr. 219. Vossler held punitive damages may be awarded at trial even if plaintiff does not introduce evidence of defendant's wealth. (Id., at pp. 961-965, 192 Cal.Rptr. 219.) Vossler's rationale, in part, is that defendants have the best access to wealth data and thus should bear the burden of introducing such evidence at trial. (Id., at p. 964, 192 Cal.Rptr. 219.) That is not to say, however, that defendants necessarily are entitled to appear and present such data at judgment hearings following default. While Vossler's rationale may be appropriate in the adversary context of trial, it is inapposite in the ex parte context of proceedings following entry of default.

The Legislature has not limited the exercise of judicial discretion to contested proceedings. Code of Civil Procedure section 585, subdivision (b) provides: "The plaintiff [after entry of defendant's default] may apply to the court for the relief demanded in the complaint; the court shall hear the evidence offered by the plaintiff, and shall render judgment for such sum (not exceeding the amount stated in the complaint), as appears by such evidence to be just." (Italics added.) Thus, when further proceedings are necessary following reversal of a default judgment because the damages are determined to be excessive as a matter of law (see, e.g., Uva v. Evans (1978) 83 Cal.App.3d 356, 362-365, 147 Cal.Rptr. 795), those further proceedings only mean the plaintiff must participate in a second judgment hearing. (See Don v. Cruz, supra, 131 Cal.App.3d at pp. 702, 704, 708, 182 Cal.Rptr. 581; Uva v. Evans, supra, 83 Cal.App.3d at pp. 359, 365, 147 Cal.Rptr. 795.) Unless the appellate court directs otherwise (see Code Civ.Proc., § 43), the defendant cannot participate in a second judgment hearing any more than it can in the first hearing between default and appeal. ²

The Punitive Damages Are Not Excessive as a Matter of Law

Punitive damages are not a new phenomenon. They have been part of our common law tradition for more than two centuries. ³ (Comment, The Imposition of Punishment by Civil Courts: A Reappraisal of Punitive Damages (1966) 41 New York U.L.Rev. 1158, 1160.) Allowed in almost every state in certain cases, they have been part of our Civil Code since 1872. Civil Code section 3294 ⁴ allows plaintiffs to recover punitive damages in cases of "oppression, fraud, or malice." The legislative purpose is primarily to punish wrongdoers and deter the commission of wrongful acts. (Neal v. Farmers Ins. Exchange, supra, 21 Cal.3d at p. 928, fn. 13, 148 Cal.Rptr. 389, 582 P.2d 980.) Civil Code section 3294 expresses these twin goals.

Whether punitive damages should be awarded and the amount of such an award are issues for the jury and for the trial court on a new trial motion. All presumptions favor the correctness of the verdict and judgment. (Finney v. Lockhart (1950) 35 Cal.2d 161, 164, 217 P.2d 19.) While the trial court's determination is not binding upon a reviewing court, it must be...