Opinion
Appellant Spencer M. Burling appeals a default judgment rendered against him in the amount of $197,044.01. He asserts (1) the default judgment must be vacated because he was not personally served with the statement of damages and because respondent’s proof at the default hearing amounted to a de facto amendment of the complaint, which should have revived appellant’s ability to respond; (2) the judgment relies upon two sections of the San Francisco Rent Ordinance that are unconstitutional; (3) the judgment exceeds the relief demanded and thus must be reduced; and (4) the court abused its discretion in denying relief from default under Code of Civil Procedure section 473. We affirm.
Background
Appellant purchased an apartment building at 76 Deming Street in March 1986. On approximately March 24 he served an eviction notice upon *1591 respondent John Beeman, indicating he wished to occupy respondent’s unit himself. 1 Respondent moved out of the apartment on April 1. Respondent testified that although appellant did move into the vacated apartment, he lived there for less than three months. The San Francisco Rent Ordinance (Rent Ordinance) requires an owner to reside for 12 months in an apartment that has been vacated pursuant to an “owner move-in” eviction notice.
On May 20, 1986 appellant served an eviction notice upon another tenant, Richard Kronstedt. Mr. Kronstedt testified that the notice indicated appellant’s business partner was intending to occupy that unit. He vacated the apartment on approximately June 12, 1986. Similarly, in June 1986 another tenant, Steve Munnell, received an “owner move-in” eviction notice from appellant’s business partners, Emmett Hayes and Robert Hill.
In August 1986 respondent sued appellant for wrongful eviction. Following appellant’s motion to strike respondent filed a first amended complaint. The amended complaint alleged that appellant had wrongfully evicted respondent with the intention of renting the vacated unit at a higher rental and thus increasing the building’s overall value. The complaint set forth 14 causes of action, including actions for negligence, constructive eviction, fraud and violation of the Rent Ordinance. Respondent sought special and general damages according to proof, punitive damages and treble statutory damages under the Rent Ordinance.
Appellant demurred and moved to strike portions of the amended complaint. Following a hearing on January 20, 1987 the court overruled the demurrer, granted the motion to strike in part and ordered appellant to respond to the complaint within 30 days.
Four other tenants of 76 Deming Street also filed suit against appellant alleging similar causes of action. All were represented by the attorney representing respondent. Counsel eventually agreed that appellant would respond to all of the complaints on or before May 16, 1987. Timely answers were filed in three of the pending cases. On May 22 respondent’s counsel served appellant’s counsel, Mr. Zimmerman, with statements of damages in the instant case and in the case filed by another tenant, Richard Kronstedt. Respondent also offered, pursuant to Code of Civil Procedure section 998, to settle the matter for $30,000. On June 19, respondent’s counsel wrote to *1592 Zimmerman, warning that he would take appellant’s default in the Kronstedt and Beeman cases if no response was filed by June 17. No answers were filed.
Appellant’s counsel did not respond to the default warning because he was distracted by the hospitalization of his girlfriend on June 20. During the hospitalization his girlfriend’s young daughter was left in the care of her grandfather, who is mentally impaired, and counsel was required to assume significant responsibility for the care of the child.
According to Zimmerman’s declaration, during this time he believed an answer had been properly filed in this matter. He did not notice any letters threatening a default until he received a request to enter default on July 1, 1987. Respondent’s counsel refused to have the default set aside, stating his client would not permit him to do so; however, counsel did grant appellant’s attorney an extension to respond in the Kronstedt matter. By his own admission, Zimmerman “simply blocked the case out of [his] mind” and did not file a motion to have the default set aside.
A hearing on the default judgment was held on October 21, 1987. Respondent and three other tenants testified regarding the eviction notices they received when they lived at 76 Deming Street. Stephen Munnell asserted that appellant was “unpleasant” and “threatening” and “did everything to make [the tenants] feel completely uneasy.” Richard Kronstedt described appellant’s “intimidating manner” and stated he was ’’very rude [and] very abrupt.” Maurice Jarrett also complained that he felt threatened by appellant and was intimidated by appellant yelling at the tenants that they were to “ ‘get out or else.’ ” The witnesses also testified that following respondent’s eviction appellant did not occupy respondent’s apartment for a continuous 12-month period, a fact which under the Rent Ordinance raises a presumption that the eviction was not a valid “owner-occupy” eviction. Based on this evidence the court awarded respondent $197,044.01 in damages, costs and disbursements.
Appellant was unaware of these proceedings and did not learn of the judgment until he retained new counsel on November 2, 1987. His new counsel moved for relief from default on the grounds that (1) the default was taken in violation of Code of Civil Procedure section 425.11, which, he alleges, has been construed to require personal service of a statement of damages; and (2) an answer was not filed due to his former counsel’s excusable mistake and neglect, which warrants the granting of relief from default under Code of Civil Procedure section 473. The court denied the motion on the ground that appellant had not demonstrated the default resulted from counsel’s excusable neglect.
*1593 Appellant moved for reconsideration of the motion to vacate the default; respondent objected, arguing the motion was untimely and did not allege any new facts. The court denied the motion because no new facts were alleged and the record was inadequate to establish abandonment.
This timely appeal followed.
Discussion
A. Procedural Irregularities
1. Service pursuant to Code of Civil Procedure section 425.11.
Code of Civil Procedure section 425.11 provides, in pertinent part, that “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 . . .
.”
2
Appellant argues, based on
Engebretson & Co.
v.
Harrison
(1981)
In Engebretson, the court determined that where a defendant has failed to appear, personal service of an amended complaint is a prerequisite to a valid default judgment. (125 Cal.App.3d at pp. 440-444.) The court reasoned that nonappearing and defaulting defendants, who already have decided to permit a default judgment for the amount originally sought, might not pay adequate attention to an amendment served by mail, since they may mistakenly view it as merely a procedural step to obtaining the default judgment. In Plotitsa, the court used the same reasoning in holding that the defendants, who had not made an appearance in the action, were entitled to personal service of the statement of damages required prior to entry of a default judgment. (Plotitsa, supra, 140 Cal.App.3d at pp. 759-761.)
Despite the fact that Engebretson and Plotitsa both involved nonappearing defendants, appellant urges us to extend this rule to defendants who *1594 have appeared in the action. He argues the purpose of Code of Civil Procedure section 425.11—to give the defendant one “last clear chance” to respond to the allegations—applies with even greater force to a litigant who has appeared and thus expressed his desire to present a defense.
We disagree with appellant’s argument. Appellant does not deny that he made an appearance in this action when he filed a demurrer and motion to strike. (Code Civ. Proc., § 1014 [“A defendant appears in an action when he . . . demurs [or] files a notice of motion to strike . . . “].) He also does not dispute the fact that he was represented by counsel. He is therefore unlike the defendants in Plotitsa, who made no appearance and were unrepresented by counsel. Moreover, in Plotitsa there was a question as to whether service upon the defendants was effective; in the instant case the statutory notice admittedly was received, but went unheeded. On the facts presented we see no reason to extend Plotitsa to require personal service upon a defendant who, by filing a demurrer and a motion to strike, has made an appearance in the action.
Appellant admits his attorney was properly served with—and actually received—a statement of damages prior to the default. Thus, appellant’s problem arises not from the mode of service, but from appellant’s attorney’s failure to respond to the threatened default. We therefore reject appellant’s contention and conclude the statement of damages was properly served by mail upon appellant’s counsel. 3
2. Variances between allegations and proof.
Appellant maintains that because the evidence presented at the default hearing went beyond the scope of the complaint it was tantamount to an amendment, which should revive his right to answer. In particular, appellant complains that (1) testimony concerning the conduct of his business partners was introduced, although the complaint was not amended to name those individuals; and (2) tenants other than respondent testified regarding their dealings with appellant and his partners despite the fact that such testimony did not relate to the allegedly wrongful evictions and could not properly be used to support an award of punitive damages to respondent.
A substantive amendment to a complaint supersedes the original complaint, and effectively “opens the default,” which permits the defaulting
*1595
defendant to answer. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 1984) Default, § 5:85, p. 5-21.3;
Engebretson & Co.
v.
Harrison, supra,
The rule has no application in this case because the “amendments” appellant focuses on did not result in any substantive changes and did not expose appellant to any greater or different liability than was presented by the complaint on file. Accordingly, there was no need to open the default to allow a reassessment of the action. While certain of the witnesses testified regarding the conduct of Emmett Hayes and Robert Hill, appellant’s purported business associates, such references did not affect appellant’s exposure and did not amount to a de facto amendment which added these men as defendants. Moreover, appellant was on notice that his agents and employees would be implicated since the complaint alleged that appellant and his agents together had engaged in unlawful business practices which resulted in respondent’s losses. As such, the use of their actual names did not change the substance of the complaint or in any way surprise or disadvantage appellant.
Appellant also objects to testimony by tenants other than respondent concerning threatening or intimidating encounters with appellant and his partners. He argues only testimony directly relating to the assertedly wrongful evictions ought to have been used, and objects to the evidence concerning incidents involving tenants other than respondent. We find this argument unpersuasive.
First, appellant admits that evidence concerning his efforts to wrongfully evict other tenants from their apartments is relevant to respondent’s claim that appellant engaged in an unlawful course of conduct under Business and Professions Code section 17200. Thus, the court did not err in permitting such testimony at the hearing. Moreover, after reviewing the record and the trial court’s conclusions it is apparent the error, if any, in admitting this testimony was harmless. The evidence was presented to support respondent’s claim that appellant’s actions were willful and malicious, which would justify an award of punitive damages. However, the court specifically indicated that it was not awarding punitive damages because it considered the treble damages under the Rent Ordinance sufficient. 4 Thus, the damage award was unaffected by the evidence of intimidation offered by the other tenants: under the Rent Ordinance respondent would have been entitled to *1596 the identical award based solely on the fact that he was wrongfully evicted based on the false assertion that respondent’s unit was to be owner-occupied. 5
B. Constitutionality of Rent Ordinance
Appellant maintains the default judgment must be vacated because it is founded on two sections of the Rent Ordinance which unconstitutionally conflict with the general California laws on punitive damages and allocation of the burden of proof.
1. Section 37.9.
Section 37.9(a) of the Rent Ordinance sets forth the conditions governing an owner’s repossession of a rental unit. Subdivision 8 provides an owner may recover possession of a unit if he does so “in good faith, without ulterior reasons and with honest intent, for the landlord’s use or occupancy as his or her principal residence . . . for a period of at least 12 continuous months.” That provision further states that “[i]t shall be rebuttably presumed that the landlord has not acted in good faith if the owner or relative for whom the tenant was evicted does not move into the unit and occupy said unit for a minimum of 12 continuous months.” Appellant maintains this presumption impermissibly conflicts with the allocation of the burden of proof set out in Evidence Code section 500, 6 since it relieves the tenant of the burden of proving the eviction was done in bad faith.
While this argument has some force
(see Fisher
v.
City of Berkeley
(1984)
2. Section 37.9(f).
Section 37.9(f) of the Rent Ordinance provides as follows: “Whenever a landlord wrongfully endeavors to recover possession or recovers possession of a rental unit in violation of Sections 37.9 and/or 37.10 . . . the tenant or Board may institute a civil proceeding for injunctive relief, money damages of not less than three times actual damages, and whatever other relief the court deems appropriate.” (Italics added.) Appellant claims this ordinance unconstitutionally conflicts with Civil Code section 3294 because (1) it requires an award of treble damages, and thus deprives the court or jury of the discretion to award no punitive damages or some other appropriate amount of exemplary damages; and (2) it permits an award of punitive damages without proof the defendant is guilty of “oppression, fraud or malice” as required by statute.
The problem with appellant’s argument is that it erroneously equates punitive damages with statutory damages, and assumes the two are awarded based on the same standards. (See
Kelly
v.
Yee
(1989)
Since we have concluded Civil Code sections 3294 and 3295 do not restrict the imposition of statutory damages, section 37.9(f) is valid so long as it does not impinge on an area covered by any state law. The issue addressed by the Rent Ordinance, i.e., residential rent control laws and the penalties for their violation, has been recognized as a peculiarly local concern which is left to local regulation. (Kelly v. Yee, supra, 213 Cal.App.3d at pp. 341-342 [concluding that the treble damages under section 37.9(f) serve a different function than, and are thus not preempted by, Civil Code section 3294].) This fact is underscored by language contained in Civil Code section 1954.25, enacted in 1987. There our state Legislature observed that “the price charged for commercial real property is a matter of statewide concern.” However, the statute specifically declares that “this chapter [concerning rent control on commercial property] shall not apply or be interpreted to apply to local rent controls on residential real property.” (Italics added.) Thus, the Legislature clearly left to local governments the power to regulate rent control on residential property. Section 37.9(f) represents a proper exercise of the concomitant power to set appropriate penalties for violations of those regulations.
C. Damage Award
Appellant claims the damage award cannot stand because (1) the court awarded special damages in excess of that requested; (2) the court improperly included a $20,000 award for mental anguish in the damages to be tripled under section 37.9(f) of the Rent Ordinance; and (3) the punitive *1599 damages were erroneously awarded in the absence of evidence concerning appellant’s wealth.
1. Award of excessive special damages.
Appellant next asserts the court erred in awarding $42,948 in special damages when respondent only sought $25,000. He points out that where the award resulting from a default judgment exceeds the relief sought the award must be amended to conform to the requirements of Code of Civil Procedure section
580.
8
(Greenup
v.
Rodman
(1986)
Respondent’s complaint sought “actual and special damages, including, but not limited to, moving expenses, increased housing costs for an inferior residence, expenses for installing telephone and utilities, loss of earnings, loss of business goodwill and identity, business expenses arising out of relocation, and higher utility costs.” “General damages are ‘those which necessarily result from the act complained of,’ and are implied by law to have thereby accrued to plaintiff. Special damages, on the other hand, are defined as damages which do not arise from the wrongful act itself, but depend on the circumstances peculiar to the infliction of each respective injury.”
(Myers
v.
Stephens
(1965)
Appellant argues the sum of the damages awarded for increased housing costs, moving expenses, loss of earnings and mental anguish, all assertedly *1600 special damages, exceeds the $25,000 sought in the statement of damages. In response, respondent maintains that only the damages awarded for mental anguish are properly characterized as special damages, and asserts the other items all are general damages well within the $400,000 sought in the statement of damages.
First, both parties are mistaken in characterizing the award of damages for mental anguish as special, rather than general, damages. As earlier noted, general damages are those losses which naturally flow from the injury and which are not quantifiable by reference to bills or receipts. Thus, damages for pain, suffering and emotional distress are paradigmatic examples of general damages.
Two of the remaining items comprising the damage award, moving expenses and actual loss of earnings prior to the default hearing, are clearly special damages, as they are based on actual out-of-pocket losses proved by reference to receipts and business records. (See, e.g.,
Tooke
v.
Allen
(1948)
In sum, the only special damages awarded were for moving expenses ($800) and for actual lost earnings prior to the October 1987 hearing ($2,000), a total of $2,800, well within the $25,000 of special damages sought in the statement of damages.
2. Trebling of mental anguish award.
Appellant argues the court improperly included the $20,000 awarded for mental anguish in the amount to be trebled under the Rent Ordinance. He asserts that because respondent did not include damages for mental anguish among the “actual and special damages” listed in paragraph 19 of his complaint the $20,000 awarded for pain and suffering ought to have been excluded from the sum trebled under section 37.9(f) of the Rent Ordinance, *1601 because that section provides for the trebling of “actual damages.” This argument is meritless.
First, “actual damages consist of both general and special damages.” (Black’s Law Diet. (5th ed. 1979).) 9 Thus, under the express language of the Rent Ordinance both general and special damages may be trebled. Second, the list of “actual and special damages” set forth in respondent’s complaint is explicitly a partial list which begins by stating that “plaintiff incurred actual and special damages, including, but not limited to . . .” the items described. Finally, since respondent’s statement of damages sought for a total of $425,000 in general and special damages and expressly indicated that he was seeking three times that sum—or $1,275,000—as statutory damages it is inconceivable appellant was not aware that he might be liable for a treble damage award of $188,844.
3. Evidence of appellant’s wealth.
Appellant suggests the “punitive” damage award cannot stand because respondent did not introduce evidence of appellant’s wealth. As previously noted, the court explicitly declined to award punitive damages because it considered the statutory treble damage award sufficient. While there is some dispute as to whether a plaintiff must present evidence of a defendant’s wealth to support a claim for punitive damages (compare
Vossler
v.
Richards Manufacturing Co.
(1983)
*1602 D. Denial of Motion for Relief from Default
On January 13, 1988 a hearing was held on appellant’s motion for relief from default under Code of Civil Procedure section 473. 10 At that time the court heard arguments from counsel and denied the motion, concluding appellant had not made the requisite showing of excusable neglect. Appellant now asserts this was error.
“It is axiomatic that a motion for relief from default under section 473 is addressed to the sound discretion of the trial court. The exercise of that discretion will not be disturbed on appeal absent a clear showing of abuse.”
(Martin
v.
Johnson
(1979)
In the instaftt case appellant’s counsel was warned on June 19, 1987 that a default would be taken on June 27. The default was in fact entered on July 1. Although appellant’s counsel was informed that a prove-up hearing would be scheduled for October and was called by opposing counsel in September to ascertain whether he would be bringing a Code of Civil Procedure section 473 motion prior to the hearing, appellant’s counsel did not take any steps to have the default set aside.
While appellant contends that his counsel’s girlfriend’s hospitalization led to the default, that does not explain why counsel failed to respond to the first amended complaint from February through June. Moreover, since counsel’s friend was only hospitalized from June 20 to June 24, and was then released without restriction, it is not apparent why counsel was unable to respond between June 24 and July 1, when the default was entered. Finally, there is no reason offered for counsel’s failure to promptly seek relief from the default once he returned to his business and realized his error.
11
Excusable neglect is an “act or omission which might have been
*1603
committed by a reasonably prudent person under the same circumstances.”
(Transit Ads, Inc.
v.
Tanner Motor Livery, Ltd.
(1969)
Finally, appellant argues he was abandoned by his attorney and should therefore not be charged with or penalized for counsel’s errors. In support of this claim he cites
Daley
v.
County of Butte
(1964)
Daley is inapposite. Here, unlike counsel in Daley, Attorney Zimmerman continued to act, albeit ineffectively, as appellant’s representative. For example, when Zimmerman finally realized on June 27 that a default was imminent, he phoned respondent’s attorney and asked to have appellant relieved of the default. Soon thereafter respondent’s attorney spoke with Zimmerman concerning settlement of the case. When respondent’s counsel met Zimmerman in late August or September of 1987 he said he intended to bring a motion for relief under Code of Civil Procedure section 473. On September 24 Zimmerman repeated this intention to respondent’s attorney during a telephone conversation. At the section 473 hearing appellant’s new *1604 counsel explicitly admitted there were “ongoing settlement negotiations” between Zimmerman and respondent’s counsel after the July 1 default.
In
Carroll
v.
Abbott Laboratories, supra,
At oral argument appellant’s counsel informed the court and opposing counsel that an amendment to Code of Civil Procedure section 473 that became effective after the completion of briefing in this case made relief from default mandatory whenever the attorney attests that his mistake, inadvertence, surprise or neglect resulted in the default at issue. She argued that because appellant’s trial counsel had sworn that the default resulted from his neglect appellant was entitled to the benefit of the amendment. 13
In 1988, Code of Civil Procedure section 473 was amended to provide that: “Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is timely, in proper form, and accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise or neglect, vacate any resulting default judgment entered against his or her client unless the court finds that the default was not in fact caused by the attorney’s mistake, inadvertence, surprise or neglect. The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” This amendment became effective January 1, 1989.
The amendment changes the prior statute in two significant ways. While the preamendment statute provided that a court “may” relieve a party or his legal representative from a judgment taken through “mistake, inadvertence, surprise or excusable neglect,” the amendment states that the court “shall” vacate any judgment resulting from an attorney’s “mistake, inadvertence, surprise or neglect.” Thus, while the prior law was discretionary, the amendment is couched in mandatory terms. Whereas the prior statute only recognized excusable neglect, the amendment provides relief for defaults founded on an attorney’s neglect, regardless whether it may be characterized as excusable.
*1605 Appellant asserts that, pursuant to this amendment, relief from default must be granted unless the court finds the default did not in fact result from the attorney’s mistake, inadvertence, surprise or neglect. The legislative history of the amendment supports that position; 14 respondent does not offer a contrary interpretation, but only argues the amendment ought not be applied retroactively to relieve appellant’s default.
Code of Civil Procedure section 3 states that no part of the code is to be applied retroactively, “unless expressly so declared.” Appellant acknowledges this principle and admits there is no legislative indication that the amendment to Code of Civil Procedure section 473 was intended to apply retroactively. He nonetheless argues the statute may be applied to this matter without violating section 3, because the amendment effects procedural, rather than substantive, changes.
As support for this position appellant relies primarily on
Hardy
v.
Western Landscape Construction
(1983)
The seminal case on the issue in question is
Aetna Cas. & Surety Co.
v.
Ind. Acc. Com.
(1947)
In
Nelson
v.
A. H. Robins Co.
(1983)
Finally, in
Russell
v.
Superior Court
(1986)
Based on the foregoing authorities, appellant’s position, which rests on the assumption that “procedural” rules such as Code of Civil Procedure section 473 are retroactive, is overly simplistic and begs the key question whether past events will be affected by retroactive application of the amendment. If the amended version of section 473 were applied retroactively in this case, appellant would have an opportunity to go forward and defend this case on the merits, despite the fact that under the law existing at the time of the default judgment, he had clearly lost that right. As such, the retroactive application of this amendment would substantially affect substantive rights; under Aetna and its progeny this is impermissible. Accordingly, the amended version of Code of Civil Procedure section 473 cannot be applied retroactively to provide appellant relief from default.
E. Attorney’s Fees and Costs
Following oral argument in this matter respondent moved for an award of costs and reasonable attorney’s fees on appeal. He maintains he is entitled to such an award based on a number of grounds, including (1) a provision in the parties’ lease which provides for the payment to “owner or agent” of attorney’s fees and costs for any action under the lease; and (2) Civil Code section 1717, which makes that provision reciprocal to allow for such an award to the tenant. 17 Appellant opposes the motion, arguing it is premature, in that there is no “prevailing party” before our judgment is issued. We are unpersuaded by this argument, and shall award respondent fees and costs incurred in connection with this appeal.
The lease at issue provides that “if any action or suit shall be brought by owner or agent for the recovery of any rent due, or to enforce any right hereby conferred, or for the recovery of possession of said premises, tenant shall pay to owner, or agent, such attorneys fees and costs as the Court shall *1608 determine to be reasonable.” Civil Code section 1717, subdivision (a) makes this lease provision reciprocal by providing that “[i]n any action oh a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.” (Italics added.)
While respondent’s action implicated provisions of the San Francisco Rent Ordinance, in our opinion the suit fundamentally was based upon the lease, in that respondent sought compensation for appellant’s wrongful interference with respondent’s occupation and enjoyment of the leased premises. Thus, the attorney’s fees provision of the lease, through Civil Code section 1717, provides authority for our award to respondent, who clearly is the prevailing party herein. 18
F. Disposition
The judgment is affirmed. The cause is remanded to the trial court for a determination of an appropriate award of attorney’s fees and costs to respondent.
Smith, J., and Benson, J., concurred.
Notes
At the time the notice was served the apartment building was protected by the San Francisco Rent Ordinance, since it was a nonowner occupied building containing more than four units. Appellant was apparently aware of this fact, as the eviction notice contained a warning—only required in connection with evictions involving rent controlled units—that the Rent Board should be consulted for advice regarding the eviction.
Code of Civil Procedure 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. The legislative purpose of the provision was to protect defendants in personal injury and wrongful death actions from adverse publicity resulting from prayers for greatly exaggerated damage claims bearing little relation to reasonable expectations of recovery.
(Plotitsa
v.
Superior Court
(1983)
Code of Civil Procedure section 425.11 fills the gap created by the amendment of section 425.10 by requiring service of a statement of damages “setting forth the nature and amount of damages being sought.”
According to Code of Civil Procedure section 1010, “[n]otices and other papers may be served upon the party or attorney in the manner prescribed by this chapter, when not otherwise provided by this code.” (Italics added.) Since Code of Civil Procedure section 425.11 does not specify the mode of service required, the statement of damages may, under section 1010, be served upon a defendant’s attorney.
The court observed, “[w]hatever the rent ordinance provides as the triple damages is sufficient punitive damages in this case.”
Appellant’s reliance upon
Jackson
v.
Bank of America
(1986)
Evidence Code section 500 provides “[e]xcept as provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.”
In
Fisher
our Supreme Court considered a similar challenge to section 14 of Berkeley’s rent control ordinance, which provided that any eviction within six months following a tenant’s exercise of rights under the ordinance was presumptively retaliatory. The landlords challenging the ordinance argued that because proof of retaliation is essential to a tenant’s defense or claim for relief, under Evidence Code section 500, the tenant must prove the fact of retaliation. The court agreed and declared the provision invalid, because “the presumption in
*1597
section 14 shifting the burden of proof, on its face, directly conflicts with the Evidence Code.” (
Code of Civil Procedure section 580 states, in pertinent part, that “[t]he relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint. . . .”
Actual damages are further defined as “[r]eal, substantial and just damages, or the amount awarded to a complainant in compensation for his actual and real loss or injury, as opposed on the one hand to ‘nominal’ damages, and on the other to ‘exemplary’ or ‘punitive’ damages.” (Black’s Law Diet., supra, at p. 352.)
This provision states that a court “may, upon such terms as may be just, relieve a party or his or her legal representative from a judgment, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise or excusable neglect. Application for such relief . . . must be made within a reasonable time, in no case exceeding six months . . . .”
Stub
v.
Harrison
(1939)
Moyal
v.
Lanphear
(1989)
The court permitted the parties to file supplemental briefs on this issue.
The legislative history shows that the amendment as first proposed permitted relief based on “excusable” neglect; by the third draft the word “excusable” has been deleted without explanation. Because the word appears both in earlier drafts of the bill and in the existing language of the statute, it seems unlikely that the omission could have been inadvertent.
A memo concerning the amendment prepared by the Senate Committee on the Judiciary states that the purpose of the amendment is to “provide a basis for deterring the occurrence of default judgments.” Another memo, prepared by the Senate Rules Committee, states that the bill would “properly burden[ ] the party whose inaction resulted in default” and concludes that “requiring an erring attorney to pay a sum to the client security fund will generally prove more satisfactory than precipitating yet more litigation in the form of malpractice suit[s].” Finally, a memo by the Assembly Committee on Judiciary states that the author of the bill, Senator Ed Davis, has asserted that because of increased case loads, courts have become reluctant to grant relief from default; Senator Davis is quoted as stating that the amendment will help ensure that a party “who is truly not at fault will not be held vicariously liable for an attorney’s indiscretion.” All of these materials support a literal interpretation of the amendment, i.e., that relief from default is mandatory once an attorney attests that his failure caused the default.
Contrary to an assertion in a supplemental brief filed by appellant, Hardy did not retroactively apply an amendment to Code of Civil Procedure section 473; rather, it concerned an amendment to the rules of court.
The court listed statutes involving rules of evidence in future trials, trial procedure, rules of service of process or the awards of costs or attorneys’ fees upon entry of judgment as
*1607
examples of statutes which do not affect substantive rights or liabilities. (
Respondent also cites Code of Civil Procedure sections 1021 and 1034, subdivision (b), California Rules of Court, rule 26 and section 37.9 of the San Francisco Administrative Code in support of his claim for attorney’s fees and costs herein. As we have determined that the parties’ lease and Civil Code section 1717 provide ample authority for such an award, we need not analyze respondent’s rights under the other authorities noted.
Appellant concedes that the prevailing party—whether it is appellant or respondent— will be entitled to an award of fees. He nonetheless asserts that, depending on our final disposition of the case, there could be some dispute as to who actually prevailed. Because we are affirming the judgment in its entirety there can be no doubt that respondent is the “prevailing party” for purposes of the award of attorney’s fees and costs.