Plotitsa v. Superior Court

• Decision Date: 14 March 1983
• Citation: 140 Cal.App.3d 755,189 Cal.Rptr. 769
• Court: California Court of Appeals Court of Appeals
• Parties: Felix PLOTITSA and Nick Lenderman, Petitioners, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent, Vivian KADRI, Real Party in Interest. Civ. 66372.

Page 769

189 Cal.Rptr. 769

140 Cal.App.3d 755

Felix PLOTITSA and Nick Lenderman, Petitioners, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent Vivian KADRI, Real Party in Interest.

Civ. 66372.

Court of Appeal, Second District, Division 4, California.

March 14, 1983.

David L. Kaplan, Santa Monica, and Edward D. Benes, Los Angeles, for petitioners.

Charles J. Fleishman, Los Angeles, for real party in interest.

No appearance for respondent.

WOODS, Presiding Justice.

By petition for mandate, petitioners, Felix Plotitsa and Nick Lenderman, in a personal injury action seek review of a trial court order denying their motion under section 473 of the Code of Civil Procedure to set aside a default entered against them. Petitioners contend that the unique pleading requirement created by sections 425.10 and 425.11 of the Code of Civil Procedure ¹ requires a personal injury plaintiff to personally serve a defendant who has not appeared after valid service of complaint and summons, with a "statement of damages" and to defer entry of default until defendant has had sufficient time after such service to file a responsive pleading.

Finally, petitioners contend that a request to enter default specifying only the total amount of damages sought does not satisfy the requirement of section 425.11 that a "statement of damages" prerequisite to default specify "special and general damages."

The undisputed facts are that on September 15, 1981, real party in interest, Vivian Kadri (hereinafter plaintiff), filed her complaint alleging petitioners had caused her physical injury by their negligent operation of an automobile. In compliance with section 425.10, the complaint did not state the amount of damages sought.

Summons was issued and on April 4, 1982, petitioner Lenderman was personally served. That same date, petitioner Plotista was served by substituted service upon his wife. On May 19, 1982, plaintiff mailed a letter to both petitioners at their residence addresses, and a copy to their insurance carrier, threatening default if a response to the complaint was not filed within 10 days. No response was filed, although petitioners' carrier communicated to plaintiff's counsel its inability to locate petitioners and its ignorance as to whether service was effective. On June 2, 1982, summons was returned with appropriate proofs of service executed by a registered process server. Concurrently, plaintiff filed a standard form request to enter default as to both petitioners indicating the total "demand of complaint" as "$250,000." The request also included the declaration of plaintiff's counsel stating that the request had been served upon both petitioners on June 1, 1982, by mailing copies thereof to their specified last known addresses. Default was entered June 2.

On July 13, petitioners filed a joint motion to set aside default pursuant to section 473. The motion was originally based upon claimed "excusable neglect or inadvertence." No declaration by petitioners was submitted in support of this claim. After plaintiff filed opposition, petitioners filed a supplemental pleading contending the default was void because there had been no personal service of the request to enter default and because entry of default one day after copies of the request were mailed to them does not afford them a due process opportunity to determine whether to defend against the action once they are apprised of the precise amount of damages plaintiff claims, as required by section 425.11. Petitioners' motion was denied August 12. The petition for mandate was filed with this court and the alternative writ issued.

The issues here presented must be resolved in favor of petitioners.

I

The first issue we discuss is whether a personal injury defendant who has been validly served with summons and original complaint, but has not appeared in the action, must also be personally served with the request to enter default when there has been no prior notice to him that complies with section 425.11 "statement of damages" requirement.

This issue is analogous to that determined in Engebretson & Co. v. Harrison (1981) 125 Cal.App.3d 436, 178 Cal.Rptr. 77, wherein it was held that amendments to civil complaints, which increased the amount of damages sought, must be personally served upon a "nonappearing" defendant before default may be entered against such defendant for the increased amount.

For the reasons discussed below, it must be concluded that a "statement of damages" under section 425.11 is the functional equivalent of an amendment to a complaint that increases the amount of damages sought. Accordingly, the same considerations requiring personal service must apply.

Section 425.10, as amended in 1974, prohibits any statement in a complaint of the amount of damages sought for personal injury in superior court. Section 425.11, added in 1974, provides for notice to a personal injury or wrongful death defendant of the "nature and amount of damages being sought." It allows the defendant to request a written statement from plaintiff "setting forth the nature and amount of damages being sought." It further provides: "If no request is made for such a statement setting forth the nature and amount of damages being sought, 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; or (2) in the event an answer is filed, at least 60 days prior to date set for trial."

The legislative purpose of the 1974 amendment of section 425.10 and the addition of section 425.11 was to protect defendants in personal injury and wrongful death actions from adverse publicity resulting from prayers in complaints, particularly malpractice complaints, for greatly inflated damage claims bearing little relation to reasonable expectations of recovery. (See Review of Selected 1974 California Legislation (1975) 6 Pacific L.J. 125, 217.)

The only two cases yet to have addressed the problem of what is required under section 425.11 for entry of a valid default are Petty v. Manpower, Inc. (1979) 94 Cal.App.3d 794, 156 Cal.Rptr. 622, and Stevenson v. Turner (1979) 94 Cal.App.3d 315, 156 Cal.Rptr. 499. These cases are of little guidance here because the plaintiffs in those cases wholly failed to give the personal injury defendants any statement of the amount of damages sought, either by separate "statement of damages" or by specification in the request to enter default. Accordingly, the Petty and Stevenson courts did not reach the question of the appropriate mode of service, nor the two collateral issues raised in this proceeding.

Although these two cases are not determinative, their analyses provide a starting point. In Stevenson v. Turner, supra, 94 Cal.App.3d at 319-320, 156 Cal.Rptr. 499, the purpose of section 425.11 was characterized as follows: "[T]he clear import thereof is to give defendant one 'last clear chance' to respond to the allegations of the complaint and to avoid the precise consequences ...: a judgment for a substantial sum, [without] any actual notice of ... potential liability; ..." Accordingly, a default entered without any such statement being served on the defendant is void on the face of the record and may be successfully challenged beyond the six-month limitation period specified in section 473. (Stevenson v. Turner, supra, at p. 318, 156 Cal.Rptr. 499.) Petty v. Manpower, Inc., supra, 94 Cal.App.3d at 798, 156 Cal.Rptr. 622, held that such entry of default amounts to denial of the due process right to a fair hearing and that a judgment entered thereon is in excess of jurisdiction because section 580 limits the amount of a default judgment to that demanded in the complaint. (See 1 Witkin, Cal. Procedure (2d ed. 1970) Jurisdiction, § 204, p. 735.)

Given this foundational analysis, the answer to the personal service question lies in Engebretson & Co. v. Harrison, supra, 125 Cal.App.3d 436, 178 Cal.Rptr. 77, a recently decided case involving the analogous question of the appropriate mode of service of an amendment to a nonsection 425.11 complaint that increases the amount of damages beyond that demanded in the original complaint.

Engebretson determined that service of such amendments upon nonappearing defendants is controlled by those statutes governing service of summons on original complaints (§§ 413.10-417.10), under which personal service is required. This conclusion is enhanced by the pragmatic consideration of ensuring fair and effective notice. Nonappearing and defaulting defendants, having determined to allow default in the amount originally prayed for, are more likely to fail to adequately examine an amendment to a complaint served by mail, believing it to be merely a procedural step toward obtainment of judgment in the amount originally sought. Employees of such defendants are more likely to fail to recognize the importance of such mail and misplace it. Also, documents sent by mail are more likely to be lost. (Engebretson & Co. v. Harrison, supra, 125 Cal.App.3d at pp. 442-443, 178...