Judge: Armen Tamzarian, Case: 21STCV44242, Date: 2023-02-21 Tentative Ruling

Case Number: 21STCV44242    Hearing Date: February 21, 2023    Dept: 52

Order to Show Cause Re: Entry of Default and Default Judgment

Plaintiff Shane Perel-Wertman requests court judgment by default against defendant Liza Perel, his mother.  The proposed judgment states, “Plaintiff has waived any claim to damages in lieu of entry of a judgment for permanent injunctive relief in his favor.”  (Prop. Judgment, ¶ 2.)  He seeks a “permanent injunction enjoining and restraining Defendant Liza Perel, her agents, employees and anyone acting on her behalf or in concert with her, from harassing, attacking, striking, threatening, assaulting, destroying personal property, disturbing the peace of Plaintiff, from conducting surveillance of Plaintiff, from contacting, directly or indirectly, or taking any action against Plaintiff, to stay away at least 100 feet from the person, place of work and to vacate the residence of 6517 Whitworth Drive in Los Angeles, California, or attempting to contact Plaintiff in any manner without his written consent.”

The court cannot grant this judgment for two reasons.

Due Process

Granting this injunction would violate defendant Liza Perel’s right to due process.  “It is fundamental to the concept of due process that a defendant be given notice of the existence of a lawsuit and notice of the specific relief which is sought in the complaint served upon him.”  (In re Marriage of Lippel (1990) 51 Cal.3d 1160, 1166.)  Plaintiff’s amended complaint does not pray for any injunction in its prayer for relief.  (FAC, pp. 7-8.)  The amended complaint only refers to the injunction plaintiff seeks in the body in paragraphs 11, 18, and 24. 

Plaintiff has styled this lawsuit as a civil action for damages for intentional infliction of emotional distress, assault, and battery.  But by this request for default judgment, he transforms it into an attempt to get a protective order against Perel under the Domestic Violence Prevention Act or a civil harassment restraining order.  “A protective order implicates fundamental liberty rights, as a violation of its provisions is a crime.”  (In re Marriage of L.R. & K.A. (2021) 66 Cal.App.5th 1130, 1151.)  Plaintiff did not expressly seek a protective order or domestic violence restraining order, which requires using mandatory Judicial Council form DV-100.  (See Fam. Code, § 6226.)  Nor did plaintiff seek a civil harassment restraining order, which requires using mandatory Judicial Council form CH-100.  (See Code Civ. Proc., § 527.6(x)(1)-(2).) 

Service of the amended complaint in this action—which purports to be a lawsuit for damages—did not give defendant Liza Perel sufficient notice that plaintiff seeks a permanent injunction requiring her to stay away from plaintiff and to stay away from the house she co-owns and resides in. 

Plaintiff is attempting to improperly circumvent the Local Rules of the Los Angeles County Superior Court.  “[A]ny request for personal conduct or ‘stay away’ restraining order which does not also seek money damages” is assigned to the court’s Family Law Division.  (Local Rule 2.11.)  Although plaintiff’s complaint demands damages, he now waives that relief and only seeks a restraining order.  Had plaintiff not demanded damages in the first place, this case would have been assigned to the Family Law Division.

The court notes that this action appears to be part of an ongoing dispute between plaintiff and his father Joel Wertman on the one hand, and defendant Liza Perel on the other, regarding control over 6517 Whitworth Drive in Los Angeles (the Whitworth property).  In 2021, in divorce proceedings between Liza Perel and Joel Wertman, Joel Wertman sought a domestic violence restraining order on behalf of himself and plaintiff, including an order requiring Liza Perel to move out of the Whitworth property.  Although plaintiff included a copy of a temporary restraining order issued in the divorce action, he did not include a copy of the order after the hearing on the matter. 

Order to Vacate the Residence

The court also cannot grant the default judgment plaintiff requests because it includes an order to “vacate” the Whitworth property.  Except for protective orders under the Domestic Violence Prevention Act, a judgment ordering someone to vacate a residence generally requires an action against them for unlawful detainer or ejectment.  (See Code Civ. Proc., § 1159, et seq.)  Plaintiff has not alleged sufficient facts to constitute a cause of action for unlawful detainer or ejectment.  Plaintiff’s factual allegations do not show he has a right to possess the residence and to exclude defendant Liza Perel from it.  To the contrary, plaintiff alleges his father, Joel Wertman, “is the co-owner of the home,” and his mother, defendant Liza Perel, “is the other co-owner of the family home.”  (FAC, ¶¶ 1-2.)

Disposition

Plaintiff Shane Perel-Wertman’s request for default judgment is denied. 

Plaintiff may not use this tort action to seek a domestic violence restraining order under the Domestic Violence Prevention Act or to exclude defendant from the house they both live in.  Plaintiff may use this tort action to seek damages.  To do so, he must either serve a statement of damages on defendant or file an amended complaint to demand a specific amount of damages.  Plaintiff’s proof of personal service on defendant Liza Perel states the process server also served her with a statement of damages, but plaintiff has not proven the contents of that statement of damages. 

Under Code of Civil Procedure section 473(a)(1), the court hereby grants plaintiff leave to file a second amended complaint to demand a specific amount of damages.