*1 S012426. Apr. [No. 1991.] al.,
DAVID SCHWAB et Plaintiffs and Appellants, INC., HOMES, al., Defendants and Respondents. RONDEL et *2 Counsel
Meserve, K. & and Andrew Ulich for Plaintiffs Mumper Hughes Appellants.
Chase, Rotchford, H. Drukker & Patrick A. Kirstin Bogust, Long, Williamson, Detert, Simonson, Williamson, S. & John Long Sedgwick, Arnold, Freisleben, D. D. Moran & Alan J. Fred Baker and Curtis Parvin for Defendants and Respondents.
Opinion BROUSSARD,J. case of whether a presents question plaintiff’s —This failure of to serve notice of a defendant to Code damages upon pursuant Civil Procedure sections 425.10 and 425.111 from precludes plaintiff We conclude taking defendant. against plaintiff take a actual default defendant without the defendant against giving by as statute. required
I. Facts roommate, Bill Plaintiff Allen is deaf and uses a He and his signal dog. Schwab, Terrace, David wished to rent an Lincoln plaintiff apartment informed owned and defendants. Plaintiffs apartment complex managed had a showed the complex manager signal dog, manager card as a and a book certifying dog signal dog, gave manager of still discussing legal rights owning manager persons signal dogs. refused to rent to because of the signal dog. 24, 1987,
On an action defendants September plaintiffs brought against discrimination under Civil Code section subdivision housing under Civil section 54.3. The (b)(5), sought damages Code prayer for each for mental and emotional complaint requested damages distress and for “further losses and monetary damages” pecuniary ac- statutory amounts to treble also amounts according proof, $250,” fees, attorney to “but in a no cording sum less than proof $500,000. to the com- punitive damages of Defendants failed respond Thereafter, and a at a default was entered December 1987. plaint the trial court “the sum awarded each prove-up hearing, principal statutory All further indi references Code of Civil Procedure unless otherwise cated. fees and $100,000, attorney and modest $50,000,”
costs. motion set aside court defendants’ granted the trial April a state- have served should judgment, finding plaintiffs default and 425.11. The Court to section defendants pursuant ment damages upon default, limited the default but aside the setting the order reversed Appeal The Court of $25,000 for general per plaintiff including the punitive of the judgment, affirmed the remainder otherwise per plaintiff.
II. Discussion *4 entered and judgment us is bemay before whether question the de- damages to serve on taken where the has failed the 425.11. The Court of Appeal fendant to section conclusion pursuant law, in the the case conflict both statute and preponderance with and is reversed.2 thus
Section enter a defendant against 585 authorizes court to 580, however, relief “The does answer a section complaint; provides: answer, to if he there be no cannot exceed that which granted plaintiff, have in his in shall demanded until amendments complaint.” Accordingly, in to in their all actions were state plaintiffs required complaints claimed in a default damages before could obtain judgment.3 in
In in 425.10 1974 and section was amended again provide, ... de “A or shall contain pertinent complaint cross-complaint part: [a] for If the mand for the relief to which the is entitled. judgment pleader demanded, be recovery of or be the amount thereof shall money stated, unless action is court to recover actual or brought death, or in which case the injury wrongful for not be (Italics added.) shall stated.” purpose thereof 425.10 from 1974 amendment to section was defendants “protect demands, adverse inflated in medical resulting from publicity particularly v. Interstate Service (Jones Recovery cases.” malpractice light judgment setting trial court aside the default of our conclusion that order damages, inadequacy should be of the we have no occasion afirmed because notice of pass objections judgment. defendants’ additional originally simply: cross-complaint As section shall passed, 425.10 read “A action, following: (a) constituting in contain both of the A statement of facts the cause of [1J] ordinary language. [1|] (b) for and concise A demand relief to which the demanded, money pleader recovery he claims is entitled. be the amount If (Italics added.) shall stated . . . .” be thereof 925, 928 Cal.Rptr. 924].) Simultaneously, section 425.11 added, was requiring pertinent part personal injury death cases wrongful notice to the “give defendant of the amount of and general damages to be . . . sought recovered before a default be taken.”4 initially
Plaintiffs claim that their is not subject to sec tion 425.11 because their action is not for “personal injury or wrongful death” Indeed, within the of section 425.10. meaning we have observed in another context that where an emotional distress claim is “incidental” to action, the cause of the cause of action will not be considered an action “to recover personal injury.” (See Gourley v. State Farm Mut. Co., ante, 121, Auto. Ins. P.2d 1342] [prejudgment interest under section 3291 not allowed in action for breach of the implied covenant of good However, faith and fair dealing].) plaintiffs’ own belie pleadings their assertion that mental or emotional distress does not, fact, lie at the heart of their action: “Plaintiffs as pray follows: 1. Damages for mental and emotional distress an amount as may according In the proof.” prove-up hearing, plaintiffs presented sufficient evidence to persuade the trial to award judge each plaintiff Thus, in general damages. we find that action is plaintiffs’ *5 “action ... to recover actual or punitive damages for personal injury or death” wrongful under section 425.10. that,
Plaintiffs alternatively assert
even if this case is a personal injury
action
of section
purposes
still entitled to the default
by
entered
the trial court. In several instances the Courts of
have
reviewed defaults awarded when no notice of
was served
damages
the
upon
courts,
defaulting defendant.5 Those
in accordance with the
rule
general
4Section 425.11
reads: “When a
cross-complaint
or
is filed in an action in the su
perior
damages
death,
court to recover
personal injury
wrongful
or
party against
the
whom the
brought may
any
action is
request
at
time
setting
a statement
forth the nature and
damages sought.
amount of
request
upon
shall be
plaintiff
served
cross-complain
or
ant, who shall
responsive
serve a
statement
damages
days
as to the
15
within
thereafter. In
served,
response
event that a
party,
is not
on notice
plaintiff
cross-complain
or
ant, may petition the court in which the action
pending
plaintiff
is
to order the
or cross-com
plainant to serve responsive
statement.
request
“If no
is made for such
setting
a statement
damages
forth the nature and amount of
being sought,
give
shall
notice to the defendant
gen-
of the amount of
damages sought
eral
to be
(1)
may
taken;
recovered
(2)
before a default
in the event an
filed,
days
answer
at
60
prior
least
to the date set for trial.”
5See, e.g.,
(1987)
Hamm v. Elkin
Cal.App.3d
196
Cal.Rptr. 545]; Morgan
1343
v.
[242
Rapid
Southern Cal
(1987)
Transit Dist.
Cal.App.3d
756];
192
976
Cal.Rptr.
v.
Twine
[237
Compton
(1986)
Supermarket
Cal.App.3d
179
Cal.Rptr. 562];
514
Superior
Plotitsa v.
[224
(1983)
Court
Cal.App.3d
Cal.Rptr. 769]; Petty
140
755
v. Manpower,
(1979)
Inc.
[189
94
Cal.Rptr. 622];
(1979)
794
Stevenson v. Turner
We v. Rodman Cal.3d 822 determined that a com plaintiff’s 726 P.2d (hereafter Greenup) 1295] “in an amount that exceeds the jurisdic plaint claiming general damages tional of this court” the defendant notice that requirements provided $15,000—the jurisdictional of at was least seeking general damages minimum the court in (Id. Morgan, supra, which she appeared. in a case where it found extended Greenup's holding defendant, notice of inadequate interpreting hold that “the usual the failure to notice of remedy give damages] *6 [for amount demanded would to reduce default judgment or, demanded, to jurisdiction no amount is the minimum if 987, italics (Id. court.'' superior added.) 976, The in 192 Morgan, supra, Cal.App.3d interpreted Greenup court minimum broadly. While did in too we award the plaintiff substantially in the facts in case differed general Greenup, that Morgan today. from the before the in and the facts before us facts court Indeed, for cited and in large part Engebret its rationale relied son & Co. v. Harrison 436 a case Cal.App.3d Cal.Rptr. 77], $5,000” held “in excess of that a entitled plaintiff’s prayer $5,000, more. (Id. to default but no 444- judgment pp. general stated Greenup, plaintiff pleaded damages, specifically in to be excess of the court’s Based on such jurisdictional requirements. notice, knew, known, we held that the have defendant should that the $15,000 was at least in claiming general damages. (Greenup, supra, 42 Cal.3d at to hold that all interpreted defendants should be pre-
sumed to be on notice of the
claim for
of at
plaintiffs’
general damages
least
the jurisdictional minimum
of the form of
regardless
case
complaint.
us, however,
before
shows the
in
flaw this
claim for
reasoning: plaintiffs’
in itself
per plaintiff
punitive damages
this case
properly put
before the
court.
v.
(See
Ryan
Hoban
claim at the jurisdictional least minimum in unravels on examina- tion of section 425.11. That section not only that the requires plaintiffs give notice of but damages, of “the amount of specifically special to be Even if damages sought recovered.” we were to that a presume court, is aware of the layperson jurisdictional minimum no person could know the amount of general in this case. damages sought 976, we Accordingly, Morgan, disapprove supra, extent that it that a suggests default be entered in the absence of notice in the or a “statement of damages” general damages sought.
In contrast several Morgan, Courts of have not Appeal presumed notice of a minimum jurisdictional amount in whether the determining of section 425.11 requirement has been fulfilled.6 In v. Man- Petty Inc., power, supra, the Court of reversed Appeal in the absence of notice to the defendant of the amount of Elkin, damages sought. Similarly, Hamm supra, the Court of refused to a statement of Appeal uphold where damages was served the defendant until after the upon default was Court, entered. in Plotitsa v. And Superior
Court of vacated a default where notice of claimed had *7 been day sent one before default was entered the defendant. against (See also Twine v. Compton Supermarket, supra, Cal.App.3d 514.)7 However, attempt 6None of cases interpret Greenup, supra, these to or cite 822. Cal.3d require all these reject cases actual notice of claimed implicitly and thus the interpretation Greenup’s holding. of notice, given Where the though defendant has been actual no document entitled “state defendant, damages” upon ment of has been served the Appeal the Courts of have sometimes Thus, Evans, entry sustained an in of default. Uva v. a default was of the statute. interpretation decisions’ We with these agree ‘“ word, sentence and every phrase, should be given “[Significance ’ ” R. Co. Norton (J. in the legislative purpose.” an act of pursuance part 1, 36 26 Cal.3d Labor Relations Bd. (1979) v. Agricultural 425.11, use of the word “no In section 1306].) 603 P.2d that the and general damages” implies the terms of art tice” and “special of the special be actual notice given intended that a defendant Legislature by and claimed plaintiff. case, In that we holding is consistent with our holding Greenup.
This that a defendant that sections 425.10 and 425.11 “aim to ensure recognized himself thereby subject open- to contest an action does who declines noted that 42 Cal.3d at We also liability.” p. 826.) ended (Greenup, supra, damages.” may “the of a cure defective allegations prayer complaint Thus, follow the did not even (Id. though plaintiff Greenup 425.11, that the by plain 425.10 and we held sections procedure required “in an amount tiff’s prayer general damages exceeds the court provided requirements” to that claimed. (Id. sufficient notice defendant of the amount of damages case, In this the fact that defendants had prayer plaintiffs’ $250” in an statutory but “no less than according proof meet and the amount of not sufficient to of section 425.11. Neither nor requirements statutory fulfills the mandate of section which notice of “the requires specific . . . .” special general damages sought to be recovered (Italics added.) statutory we decline to hold that notice of Accordingly, “notice” of claimed punitive damages provides general damages section as 425.11. required
We cannot allow default to be entered defendants against without notice to of the amount of A them defend- proper damages sought. liability may ant is entitled to actual notice he or she which a reasonable of time before be entered. subjected, period in this against trial court case vacated default entered properly defendants. Disposition
III. Court of is reversed. Lucas, J., Panelli, J., Kennard, J., Arabian, J., Baxter, J., C. con- curred. against (contrary
entered the defendant when were stated provisions 425.10). of § *8 436
MOSK,J. dissent. —I first; him him a give was said to be: “hang
In the Old West the technique “demand variation of that theme: trial later.” Here we have a modern first; tell him the amount later.” money damages payment a has specified conclude that unless majority nothing he or she recovers and damages complaint, general special already take an majority the defendant defaults. In so deciding, when it, to the detriment absurd scheme and dubious statutory heap policy atop but to the benefit of of California and conscientious defendants fleet-footed absconder. 425.10’ forbids a Civil Procedure section expressly personal
Code of Nor, if we read the the amount of injury allege damages sought. mini- jurisdictional even for the strictly, may pray statute complaint 2 result, a a henceforth faced with injury plaintiffs mum.1 As personal damages violate section 425.10 They specifying dilemma. can 356, 360 v. Evans amount in the Uva (See complaint. minimum and risk They can for the 795].) pray Cal.Rptr. 425.10. v. Rodman (Cf. Greenup have violated section finding they can 1295].) they 726 P.2d Or Cal.3d silent, will be able to serve a section remain obey hope I on the defendant.3 But damages statement of general, special punitive forbid- well be difficult. The rule may shall show that statement serving in a statement ding create a dilemma and Today harsh we enough. compound plaintiff’s to default. incentive for defendant strong statutory references are to this code. Further unlabeled cross-complaint “A shall contain provides part: Section 425.10 in relevant or following: both of the If the pleader claims he is entitled. “(b) A demand for for the relief to which stated, demanded, unless the recovery money the amount thereof shall be in- brought superior action is court to recover actual or death, jury wrongful case the amount thereof shall not be stated.” which only requires 425.11 a statement of “the amount Section However, . . . .” now that section sought be recovered . . . before a default be taken Witkin, (see punitive Cal. Proce 425.10 forbids all mention of as well as actual punitive include (3d 1985) Pleading, p. 504), no doubt the statement must dure ed. § $500,000 per plaintiff in majority’s “plaintiffs’ claim for damages as well. The conclusion that ante, (maj. opn., properly put this case before the court” punitive itself spe 434) excised: it was error to include the “properly” is thus correct if the word monetary surprising. pleading “error” is not A cific demand for But the in system furnishing vital defies common sense and is that disfavors the information herently counterintuitive. *9 majority The declare majority flaws in the opinion. I turn the specific Dist. Cal Transit v. Southern Morgan Rapid that Rodman, Greenup reads Morgan) (hereafter Cal.Rptr. 756] view, it my is broadly. too 822 (hereafter Greenup), Cal.3d if a that correctly held The Greenup. opinion who misread majority serve a statement fails to injury seeking properly personal entitled he or she is nonetheless of and general damages, (192 the suit was filed. in the court which minimum conclusion. not bar that does Greenup p. She torts. won a default sued for other Greenup injuries personal for abominable behavior after Rodman’s answer was stricken as sanction Her did not specify and failure to with court comply rulings. $100,000 in but dam- sought punitive damages, compensatory is was for personal It unclear whether the demand ages. punitive $676,000 torts, the other or both. The trial court awarded injury, Greenup say some does not whether compensatory damages. Greenup was, it all of that for but some of injury, award was personal presumably because intentional infliction of emotional distress. alleged Greenup $15,000 for Court of affirmed. We reduced award Greenup’s $100,000 without disal- specifically compensatory lowing compensation injury. for personal mirror, key
In the majority’s reflection distorted optically barely of majority rely which the paragraph Greenup recognizable. action, “Each of with Greenup declares: causes of plaintiff’s exception claim, her that concluded with the she suffered personal injury allegation ‘in an amount that exceeds the of this damage jurisdictional requirements court.’... her thus to defend- By allegations, gave sufficient notice $15,000 ants that she at least claimed While compensatory award in excess of would be that amount improper, within added.) was the court.” Cal.3d at italics jurisdiction (42 this majority to conclude that quote language Greenup “pleaded to be in jurisdic- stated excess of court’s damages, specifically ante, tional Green- requirements.” (Maj. opn., 433.) The plain language It clear up previous belies statement. paragraph did not allege injury the amount her even personal damages, pray the jurisdictional minimum as Cal. 3d injury. (42 compensation doubt avoided pp. No mention the amount of in her claim because she believed correct- precisely
ly that section 425.10 forbade the reference.4 *10 above,
Immediately the material two Green- following quoted paragraphs stated, Harrison, & Co. v. up “(See Engebretson at Cal.App.3d p. 444.)” (42 Cal.3d at From this bare reference the divine: p. 830.) majority “Indeed, for its rationale cited and in large Engebret- relied on Greenup part , son & Co. v. Harrison. . . a case that held that a for plaintiff’s prayer $5,000’ ‘in excess of entitled that to a default judgment $5,000, ante, 433, but no more.” italics (Maj. added.) opn., p. implica- tion is that the were closer to those in & pleadings Greenup Engebretson Co. v. Harrison (hereafter 77] than to those here. I Engebretson) disagree.
First, matter, Engebretson was a securities a injury case. 438, Second, (125 at pp. 440.) Engebretson paragraph referred into decided an Greenup entirely different whether the question: court subject-matter had jurisdiction.5
Thus it would have been for “in impossible rely on Greenup large part” Moreover, Engebretson. Engebretson’s reference to default judgments was itself a mere aside. It is no therefore that citation to surprise Greenup’s “see,” Engebretson a that in qualified signal we believed the Greenup reference was to a mere Style dictum. Manual (Cal. (3d 1986) ed. § short, did not Greenup rely heavily Engebretson-, on it reached its conclusion independently.
Hence, only by misreading facts of Greenup by exaggerating reliance on can Greenup’s Engebretson conclude that majority Morgan read too We broadly. must either overrule Greenup forthrightly concluded, let it stand. I Morgan latter course. “In prefer Greenup, 4It is Greenup prayed specific punitive damages per unclear whether for a for injury, though sonal respect there is no reason to she was less meticulous with believe was, ante.) than If (See actual. she it was an understandable fn. mistake. 5“Engebretson prayer original contends that complaint seeking of Harrison’s $5,000’ ‘in excess subject jurisdiction superior was insufficient to establish matter Engebretson court. holding prayer relies on authorities that such a a support will $5,000, (before for no requirement July 1979) more than and on the that the amount $5,000. controversy superior in an action in . court exceed . . The contention is without prayer only, merit. While it is true that the support will superior jurisdiction required, controversy that court at the in question, time an amount in $5,000, excess prayer it does not follow was insufficient. ... If $5,001’ Engebretson’s accepted, request contention were ‘in excess of would be sufficient, $5,000’ prayer but a ‘in excess of would not. To so hold would be an unwary.” (125 insult to trap 444-445.) common sense and a for the pp. reduce the default judgment be to remedy held the usual would court demanded, to the or, if no amount in the demanded (192 court.” jurisdiction minimum thus of Greenup. rational interpretation That is indeed the today. it majority give than the objective reading a more gave Greenup not be relied on for proposition shown that Having serve a statement after nothing failing recovers defendant, the relevant statute I turn to of special *11 reading the most straitened Only whether it this result. compels to ascertain that it does. could lead to the conclusion ... made for a statement
Section 425.11 “If no is request provides, damages being sought, plaintiff forth the nature and amount of setting and general of the amount of special shall notice to the defendant give .” . . . may . . . before a default be taken to be recovered damages sought I 425.11 some sort of notice of do not that section dispute requires read only But the statute can be damages. logically require of before a default a defendant notice of the giving precise taken I adhere to the conclusion of may be for the full amount sought. of a court the filing that when sues plaintiff minimum action sufficient notice that at least provides is compensatory damages sought. course, Of the careful will serve the defendant with statement plaintiff of as soon as can be ascertained—with the if complaint Brown, But the & Cal. statement some possible. requires specificity. (Weil 6:172.1, Practice Guide: Civil 6- 1990) Procedure Before Trial (Rutter p. § 38, 6:T, 6-109; & form v. 140 (1983) see also Plotitsa Court Superior 761-762 If it is not to serve Cal.App.3d Cal.Rptr. 769].) possible [189 reasonably and accurate statement of specific damages with complaint, later may service of the statement be difficult. The law now person- requires al service of the v. statement of damages. (Twine Compton Supermarket 517 Plotitsa v. 562]; Cal.App.3d Cal.Rptr. Superior Court, by at A defendant once burned 759-761.) supra, pp. an knock at shy service of will be twice answering evening the door.6
A scenario illustrates of the difficulties injury some hypothetical and, will now face. Plaintiff sues for 6Moreover, controversy days’ there is a about whether 30 notice of the amount is required Connelly before a v. (Compare be taken. Castillo Court, 112], Superior supra, with Plotitsa v. 761.) Today’s decision does not resolve that issue. no the amount of dam-
faithful makes statement about to section $25,000, but actual believe that the ages. correctly Both parties faith at the time the good the loss cannot be quantified served, Defendant damages accompanies complaint. so no statement default, Instead, take defendant decides to intending does answer. defendant, but neither can vacation. Plaintiff cannot locate long default, he has not served entry seek because or she personally takes at least for nothing, statement of Plaintiff therefore vacation, at a incurs cost of a carefree indefinite Defendant period. from the amount great discount owed. by or some form
It is true that a can still seek service publication Court, Plotitsa (see substituted service Superior can difficult but substituted service on a fleet-footed defendant p. 761), (§ 415.50). and service cumbersome procedurally publication their conclusion majority rely on three cases support *12 ante, broadly. 434.) But two Morgan (Maj. opn., read too Court, v. 755; Petty these (Plotitsa cases Superior Inc. Manpower, (1979) CaI.Rptr. 622]) preceded [156 concede, that, not the cases do majority Thus it is as the Greenup. surprising ante, not to cite or fn. (Maj. opn., attempt interpret Greenup. third v. Elkin (Hamm (1987) CaI.Rptr. case is a seem to been aware of either 545]) very opinion short does not have Morgan. authority I am not this from persuaded meager Courts either a Court justifies Supreme of Appeal abandoning Greenup, or the well-reasoned decision. opinion, the solution to this lies with the Ultimately, problem Legislature. now recovery Legislature’s ap hurdles procedural greatly outweigh about embarrassment to defendants concern parent adverse from lawsuit with monumental stemming publicity prayer Jones v. Interstate Service damages. (See Recovery 925, 928 Review Selected 1974 Cal.Rptr. 924]; Legislation California 6 Pacific L.J. 216-217.) A information—a statutory scheme that forbids useful party provide results the type form of silence—and that creates anomalous compulsory Moreover, newsworthy in a today reached needs reexamination. urgently case a lawyer always can call a conference party press trumpet heavens, Thus claim the or at least the terrestrial media. law are an they
sections 425.10 and 425.11 bad and bad ineffective policy, Nor means of intent. can Legislature’s apparent implementing constitutionally I that could legislation cannot conceive of made effective: claims from an- injury damage with sensational prevent plaintiffs claims in forum whatsoever. those nouncing