Uva v. Evans

• Decision Date: 28 July 1978
• Citation: 147 Cal.Rptr. 795,83 Cal.App.3d 356
• Court: California Court of Appeals Court of Appeals
• Parties: Lisa UVA, a minor, etc., et al., Plaintiffs and Respondents, v. Jeffrey EVANS et al., Defendants and Appellants. Civ. 51735.

Page 795

147 Cal.Rptr. 795

83 Cal.App.3d 356

Lisa UVA, a minor, etc., et al., Plaintiffs and Respondents, v. Jeffrey EVANS et al., Defendants and Appellants.

Civ. 51735.

Court of Appeal, Second District, Division 5, California.

July 28, 1978.

Hearing Denied Sept. 27, 1978.

Ives, Kirwan & Dibble and John Brevidoro, Los Angeles, for defendants and appellants.

Louis M. Niven, Anaheim, for plaintiffs and respondents.

KAUS, Presiding Justice.

Minor plaintiff (Lisa) and her father filed a complaint for damages arising from injuries sustained by Lisa as a result of her being bitten by a dog allegedly owned by defendant on May 22, 1975. The complaint was filed May 19, 1976 and, in the prayer, requested $30,000 general damages. A copy of the complaint and summons were personally served upon defendant on August 25, 1976. Defendant believed that the complaint was "totally disassociated with anything which I had been aware of . . . " Believing that there had been "some mistake" he returned the complaint to plaintiff Thomas Uva.

On November 5, 1976, plaintiffs filed a "Request to Enter Default" in which they stated that damages requested were $30,000 and costs were $61.00. A copy of this document was served by mail upon defendant. Defendant later claimed that he never received a copy of the "Request to Enter Default."

On December 30, 1976, plaintiff filed a written request that the court enter judgment. This document recited the same damages and costs as the "Request to Enter Default" and was, again, served by mail upon defendant. Defendant admitted that he had received a copy of the request to enter judgment.

The matter was called for trial on January 11, 1977. At the ex parte hearing, both Lisa and her father testified. The court ordered judgment entered for plaintiffs.

On January 21, 1977, defendant moved to set aside the default and attached to his written motion a proposed answer to the complaint. The motion was argued and denied on February 1, 1977. On February 10, 1977, the court entered a judgment for plaintiffs awarding $30,000 general damages and $61.00 court costs. This appeal followed.

As a preliminary matter, we note that defendant purports to take this appeal from the denial of the motion to set aside the default "and any judgment entered thereon . . . " No appeal lies from the denial of a motion to vacate default, although such a ruling can be reviewed on an appeal from the judgment. (Sanford v. Smith (1970) 11 Cal.App.3d 991, 997, 90 Cal.Rptr. 256.) Consonant with the assumption of both parties, we interpret the notice of appeal as specifying that the appeal is taken from the judgment. (See Smith v. Smith (1954) 126 Cal.App.2d 194, 195, 272 P.2d 118.)

Defendant's initial contentions focus upon sections 425.10 and 425.11 of the Code of Civil Procedure and the relationship of those statutes to a judgment by default. Section 425.10 ¹ provides that when an action is brought in superior court to recover damages for personal injury or wrongful death, the amount of damages sought "shall not be stated" in the complaint. Section 425.11 states, inter alia, that before a default judgment may be taken, "the plaintiff shall give notice to the defendant of the amount of special and general damages sought to be recovered . . . "

Defendant first juxtaposes these statutes with section 580, which limits the amount of damages recoverable on a default to the amount "demanded in (the) complaint." He then argues that because section 425.10 mandates that no explicit amount of damages may be prayed for in a superior court personal injury action, section 580 precludes the recovery of any damages in case of a default in such an action; in effect, he urges that the statutes operate to limit the jurisdiction of the court rendering a default judgment to a determination of the question of liability, not of damages.

Defendant's argument suggests that the enactment of sections 425.10 and 425.11 was intended to work a major change in the superior court's jurisdiction to grant default relief in personal injury and wrongful death actions. However, we need not resolve that issue in this case since the facts before us do not require it. Right or wrong, the complaint filed and served herein did contain a recitation of the damages sought ² and the judgment did not exceed the amount requested. In this case, section 580 was fully complied with. Moreover, the amount of damages sought was contained in every piece of paper which plaintiff served on defendant; thus defendant suffered no conceivable prejudice from the procedure followed here. The resolution of the apparent anomaly in the statutes will have to await a case with appropriate facts.

The same may be said for defendant's contention that he was denied due process because he was not afforded sufficient time to respond to the notice of damages required by section 425.11. The complaint was personally served on defendant on August 25, 1976; the request to enter default was served by mail November 5, 1976; ³ the request that the court enter judgment was served by mail on December 30, 1976. Each of these documents contained a statement of the amount of damages sought. Since the matter was not heard until January 11, 1977, the three documents were served on defendant long before any final adjudication adverse to him. Defendant had ample time to respond had he so desired. ⁴

Defendant also claims that the several notices were deficient in that they did not specifically recite the amount of special damages sought. The fact is, however, that the final judgment in this case did not award any special damages. ⁵ Defendant has not shown any prejudice flowing from the lack of specification of special damages, nor can we imagine any.

Defendant further argues that the trial court abused its discretion in denying defendant's motion to set aside the default. In attempting to bear his burden of proof on this issue (see Ochinero v. Wertz (1962) 200 Cal.App.2d 533, 535, 19 Cal.Rptr. 466), defendant points out that his application for relief was prompt, that he proffered an arguably meritorious defense, and that his failure to act was based upon "an honest mistake of law."

Defendant's alacrity in seeking relief from default is no basis for holding that the trial court abused its discretion in denying that relief. "Diligence is an essential ingredient of a motion for relief (from default) . . ." (Ludka v. Memory Magnetics International (1972)25 Cal.App.3d 316, 321, 101 Cal.Rptr. 615, 618.) It is, however, just that an ingredient. It does not compel relief. (See Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 529, 190 P.2d 593.)

Nor are we persuaded that defendant's presentation of his answer can be posited as a basis for a finding that the trial court abused its discretion. While the existence of an arguably meritorious defense may reasonably lend support to a trial court's determination that a default should be vacated, it does so only because it aids the policy that "appellate courts are more disposed to affirm an order where the result compels a trial on the merits . . ." (Slusher v. Durr (1977) 69 Cal.App.3d 747, 753, 138 Cal.Rptr. 265, 269.) Section 473 requires that a proposed answer be filed with the motion to set aside the default. The existence of a defense is irrelevant to the critical question of whether the moving party showed that his failure to act was caused by "mistake, inadvertence, surprise or excusable neglect." (§ 473.)

No such showing was made here. Defendant was personally served with a complaint and summons in May 1976 which fully set forth the claims against him. The summons stated, in boldface type, as follows: "NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within thirty days." Below this warning, the summons reiterated the necessity for filing a response within 30 days, stated that absent a response a judgment could be entered against defendant, and advised prompt consultation with an attorney so that the "written response, if any, may be filed on time." Defendant's assertion that the summons and complaint "appeared to be totally disassociated with anything which I had been aware of" is belied by his frank acknowledgement that he was aware that Lisa had been bitten by the dog which was kept at his house on May 22, 1975. Defendant's failure to respond to the complaint, or to take any action after service of the request to enter default, were not the actions of "a reasonably prudent person under the same circumstances." (Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275, 279, 75 Cal.Rptr. 848, 850; Kooper v. King (1961) 195 Cal.App.2d 621, 626.) The trial court was well within its discretion in denying defendant's motion to set aside the default.

Defendant's final claim is that the award to plaintiff of $30,000 damages was grossly disproportionate to the injury suffered. Plaintiff's threshold contention is that review on appeal is limited to jurisdictional matters and fundamental defects in pleading (City Bank of San Diego v. Ramage (1968) 266 Cal.App.2d 570, 582, 72 Cal.Rptr. 273) and that the question of the excessiveness of damages awarded falls within the general rule that sufficiency of the evidence cannot be reviewed on an appeal from a default judgment. (Heathman v. Vant (1959) 172 Cal.App.2d 639, 644, 343 P.2d 104; Lester v. Beer (1946) 74 Cal.App.2d Supp. 984, 987, 168 P.2d 998; Crackel v. Crackel (1911) 17 Cal.App. 600, 602-603, 121 P. 295.)

We have been unable to find any case explicitly holding that, where proof of damages is required in the trial court prior to a default judgment being entered (see Code Civ.Proc. § 585 subd. 2) the appellate court is precluded from reviewing the question of whether the damages awarded were excessive. On the other hand, the few appellate courts which have been faced with the problem have in fact conducted such a review. In Richee v....