Hensley v. Hensley

CourtCalifornia Court of Appeals
Writing for the CourtGILBERT; STONE, P.J., and ABBE
Citation235 Cal.Rptr. 684,190 Cal.App.3d 895
PartiesJames F. HENSLEY, Jr., Executor, etc., Plaintiff and Respondent, v. Gary HENSLEY and Cary Hensley, etc. also known as Cary Lewis Hensley, Defendants and Appellants. Civ. B020644.
Decision Date26 March 1987

Page 684

235 Cal.Rptr. 684
190 Cal.App.3d 895
James F. HENSLEY, Jr., Executor, etc., Plaintiff and Respondent,
v.
Gary HENSLEY and Cary Hensley, etc. also known as Cary Lewis Hensley, Defendants and Appellants.
Civ. B020644.
Court of Appeal, Second District, Division 6, California.
March 26, 1987.
Review Denied June 17, 1987.

[190 Cal.App.3d 897] Richard L. Francis, Ventura, for plaintiff and respondent.

Siple & Orrock and Robert R. Anderson, Ventura, for defendants and appellants.

GILBERT, Associate Justice.

Here's one for your "I don't believe it" file. Appellants, Gary and Cary Hensley, seek to reinstate a default judgment against them which had been set aside by the trial court. But, of course, there is a twist. They wish the reinstated judgment to reflect a damage award of zero. As we shall explain, appellants are not aggrieved and therefore cannot appeal the order. (Code Civ.Proc., § 902.) The appeal is dismissed as to the order setting aside the money judgment.

FACTS

In 1985 plaintiff Harriett Poyer Campbell obtained a default judgment against Gary and Cary Hensley. The complaint alleged that the Hensleys, through the negligent and malicious excavation of their hillside property, caused Campbell's adjacent property to slip and subside, causing the stairway to her home to partially collapse. In her first cause of action Campbell prayed for damages "according to proof," and punitive damages. Campbell obtained a default judgment for $34,541 against the Hensleys on her cause of action alleging that the Hensleys had deprived her land of its lateral support.

Page 685

The second cause of action alleged that defendants had caused a nuisance which entitled plaintiff to injunctive relief. The trial court denied Campbell punitive damages, and her request for injunctive relief on the second cause [190 Cal.App.3d 898] of action. Campbell then dismissed paragraphs one and two of her prayer for injunctive relief.

The Hensleys then filed a motion to modify the default judgment, arguing that Campbell's failure to specify an amount in damages was fatal to the award. They argued that Code of Civil Procedure sections 580 and 585, subdivision (b), which restrict judgments to the amounts pleaded, rendered this award void because it was beyond the court's jurisdiction. The Hensleys requested the court to modify the judgment by reducing the award to zero. By this time Campbell was deceased and represented by her executor.

Rather than modify the judgment, the court set it aside. The executor took it one step further; he moved to withdraw the entry of default. Presumably, he took this action because normally an order vacating a default judgment renders only the judgment void; the entry of default remains on record, all allegations remain admitted as true, and the court must enter a new judgment. (Howard Greer Etc. Originals v. Capritti (1950) 35 Cal.2d 886, 888-89, 221 P.2d 937; Bristol Convalescent Hosp. v. Stone (1968) 258 Cal.App.2d 848, 859, 66 Cal.Rptr. 404.)

The Hensleys, however, want the default judgment to stand against them, just so long as it is devoid of substance. Their theory is that the portion of the judgment awarding no damages is valid. Therefore, they argue, the court was without jurisdiction to set it aside. Bearing in mind that a judgment on default is generally given the effect of merger or bar, (7 Witkin, Cal.Procedure (3d ed. 1985) Judgment, § 219(b), p. 656), the Hensleys seek to create an Alice in Wonderland world. Plaintiff loses for winning, and defendants win for losing.

DISCUSSION

The Hensleys correctly recite that an order setting aside a final judgment is appealable. (Stegge v. Wilkerson (1961) 189 Cal.App.2d 1, 4, 10 Cal.Rptr. 867; 9 Witkin,...

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24 practice notes
  • Westside Center Associates v. Safeway Stores 23, Inc., No. F019980
    • United States
    • California Court of Appeals
    • 5 Febrero 1996
    ...fails to show it was in any way aggrieved by a judgment entirely in its favor. (Code Civ.Proc., § 902; Hensley v. Hensley (1987) 190 Cal.App.3d 895, 898, 235 Cal.Rptr. 684.) Indeed, Safeway offers no argument in support of its cross-appeal other than to claim any error in the judgment was h......
  • Knight v. McMahon, No. B076098
    • United States
    • California Court of Appeals
    • 5 Julio 1994
    ...be immediate, pecuniary, and substantial and not nominal or a remote consequence of the judgment.' " ' " (Hensley v. Hensley (1987) 190 Cal.App.3d 895, 899, 235 Cal.Rptr. 684; County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737, 97 Cal.Rptr. 385, 488 P.2d Here appellant's petition specif......
  • Sampson v. Parking Service 2000 Com, Inc., No. B163735
    • United States
    • California Court of Appeals
    • 30 Marzo 2004
    ...it was "unfavorable," thus rendering him an "aggrieved" party for purposes of this appeal. (See generally, Hensley v. Hensley (1987) 190 Cal.App.3d 895, 899, 235 Cal.Rptr. 5. Other administrative remedies are available but are not at issue here. (See, e.g., §§ 98.3, subd. (a) [action by com......
  • Schmidt v. Retirement Board, No. A065160
    • United States
    • California Court of Appeals
    • 21 Agosto 1995
    ...385, 488 P.2d 953.) In support of its contention that appellant is not an aggrieved party, respondent cites (Hensley v. Hensley (1987) 190 Cal.App.3d 895, 235 Cal.Rptr. 684.) In Hensley, the defendants argued that the trial court should have modified, rather than set aside, a default money ......
  • Request a trial to view additional results
24 cases
  • Westside Center Associates v. Safeway Stores 23, Inc., No. F019980
    • United States
    • California Court of Appeals
    • 5 Febrero 1996
    ...fails to show it was in any way aggrieved by a judgment entirely in its favor. (Code Civ.Proc., § 902; Hensley v. Hensley (1987) 190 Cal.App.3d 895, 898, 235 Cal.Rptr. 684.) Indeed, Safeway offers no argument in support of its cross-appeal other than to claim any error in the judgment was h......
  • Knight v. McMahon, No. B076098
    • United States
    • California Court of Appeals
    • 5 Julio 1994
    ...be immediate, pecuniary, and substantial and not nominal or a remote consequence of the judgment.' " ' " (Hensley v. Hensley (1987) 190 Cal.App.3d 895, 899, 235 Cal.Rptr. 684; County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737, 97 Cal.Rptr. 385, 488 P.2d Here appellant's petition specif......
  • Sampson v. Parking Service 2000 Com, Inc., No. B163735
    • United States
    • California Court of Appeals
    • 30 Marzo 2004
    ...it was "unfavorable," thus rendering him an "aggrieved" party for purposes of this appeal. (See generally, Hensley v. Hensley (1987) 190 Cal.App.3d 895, 899, 235 Cal.Rptr. 5. Other administrative remedies are available but are not at issue here. (See, e.g., §§ 98.3, subd. (a) [action by com......
  • Schmidt v. Retirement Board, No. A065160
    • United States
    • California Court of Appeals
    • 21 Agosto 1995
    ...385, 488 P.2d 953.) In support of its contention that appellant is not an aggrieved party, respondent cites (Hensley v. Hensley (1987) 190 Cal.App.3d 895, 235 Cal.Rptr. 684.) In Hensley, the defendants argued that the trial court should have modified, rather than set aside, a default money ......
  • Request a trial to view additional results

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