Appeal from a judgment of the Superior Court of Orange County, Robert J. Moss, Judge. Motion to dismiss appeal. Judgment reversed and remanded. Motion denied. (Super. Ct. No. 07CC02455).
The opinion of the court was delivered by: Rylaarsdam, Acting P. J.
CERTIFIED FOR PUBLICATION
Defendant Michael G. York appeals from a default judgment of $2.65 million entered in favor of plaintiff Ruth Stein. He contends the judgment is void because the complaint failed to state the amount of damages. We agree and reverse. We also deny plaintiff's motion to dismiss the appeal.
FACTS AND PROCEDURAL HISTORY
Defendant served as plaintiff's attorney in a personal injury action that was dismissed and unsuccessfully appealed. Plaintiff then sued defendant, alleging causes of action for legal malpractice, breach of fiduciary duty, and fraud, seeking "compensatory damages according to proof," "punitive damages," "costs of suit" and "such other and further relief as the court deems just and proper." The complaint did not specify the amount of damages sought. Although defendant did not file an answer, the parties engaged in various pretrial procedures, including the exchange of discovery. One and a half years after the complaint was filed, plaintiff filed a request for entry of default. The dollar amount demanded on the request was "0.00."
After the court entered the default, counsel for the plaintiff offered to set it aside if defendant would agree to file an answer; defendant declined this offer. Subsequently, defendant stipulated to trail the matter for the default prove-up hearing. At that hearing, the court noted the complaint did not contain a prayer for damages. At completion of the evidence, when the court asked plaintiff's counsel for the amount of relief requested, counsel spelled out $135,000 for medical and prescription costs, $1.475 million for past lost earnings, and $1 million for pain and suffering, for a total of $2.61 million. The court ordered plaintiff's counsel to submit a brief addressing whether a statement of damages pursuant to Code of Civil Procedure, section 425.11 (all further statutory references are to this code) must be filed or whether the complaint must indicate the amount of relief requested before the court could enter a default judgment.
Plaintiff's memorandum claimed a statement of damages would be inappropriate in this case as it was not a personal injury action. In this memorandum plaintiff also moved to vacate the default and amend the pleadings to reflect the damages requested, acknowledging that a default judgment entered on her complaint would be void. The court, without the appearance of either party, denied plaintiff's requests to set aside the default and to amend the complaint, stating, "Plaintiff elected and stipulated to proceed with the default prove-up. It is too late to unwind that process." The court also ruled: "On the complaint, judgment for plaintiff . . . in the amount of $2,650,000.00."
Defendant moved to modify the amount of damages, arguing the order was void because it awarded an amount in excess of that requested in the complaint. Plaintiff filed a proposed judgment, to which the defendant filed opposition wherein he asked the court to defer acting on the proposed judgment until after it ruled on his motion to modify damages. Thereafter, the court entered a default judgment reflecting its prior ruling. Plaintiff served notice of entry of judgment on the defendant.
Plaintiff also filed opposition to defendant's motion to modify damages arguing, among other things, that defendant was on notice of the amount of damages claimed and was therefore estopped from attempting to modify the damages awarded. Defendant filed a reply, asserting that he was not given formal notice of the amount of damages and therefore the default judgment was void.
The court denied the motion to modify damages, reasoning defendant was in default and lacked standing to challenge the damage award. The court also concluded defendant waived his right to object to the amount of damages because he had been "actively involved in discovery giving him every opportunity to find out the amount of plaintiff's claim . . . [,] declined to set his own default aside when plaintiff was willing to do so[,] . . . and had the opportunity to present evidence in opposition to plaintiff's claim, but declined to do so."
Defendant then moved to vacate and set aside the default and default judgment making essentially the same arguments as in his motion to modify damages. The court denied defendant's motion to vacate and set aside the default and default judgment concluding there was no due process problem as defendant was on notice of the amount of the claim against him by virtue of his participation in the "pretrial work-up of the case."
1. Plaintiff's Motion to Dismiss the ...