Judge: Daniel S. Murphy, Case: BC449910, Date: 2024-06-10 Tentative Ruling

Case Number: BC449910    Hearing Date: June 10, 2024    Dept: 32

BACKGROUND

            Plaintiff filed a Complaint for (1) Defamation; (2) False Light; (3) Public Disclosure of

Facts; (4) Abuse of Process; (5) Intentional Infliction of Emotional Distress; and (6) Violation of

Business and Professions Code § 17200 et seq. against the Defendants Christopher Stone and Elite Imaging Concepts, LLC on November 19, 2010.   (Decl. Mermelstein Ex. 1)

            On May 18, 2011, Defendants filed their answer to the Complaint.

            On April 24, 2013, Defendants’ attorney filed a Substitution of Attorney stating that Attorney Syverson would be withdrawing as Defendants’ counsel, and Defendant Christopher Stone would be acting in pro per. Christopher Stone, as the new legal representative, listed his address on this Substitution of Attorney as P.O. Box 2088, Los Angeles, CA 90078.  (Decl. Mermelstein Ex. 3)

            On June 6, 2013, Plaintiff filed her Statement of Damages which outlined all damages sought against Defendant Christopher Stone.  (Decl. Mermelstein Ex. 6)

            On Jund 6, 2013, the Trial Court held a hearing on an Order to Show Cause re Contempt/Sanctions/Striking of the Answer against Defendant Christopher Stone and on the Plaintiff’s Motion to Strike Answer of Defendant Christopher Stone. The Court ruled in a Minute Order dated June 6, 2013, that the Plaintiff’s Motion to Strike Answer of Defendant Christopher Stone was to be granted, no appearance was made by Defendant Christopher Stone, and a hearing on an Order to Show Cause re Default and/or Default Judgment was to be placed on calendar for July 8, 2008. (Decl. Mermelstein Ex. 5)

            On June 26, 2013, Plaintiff served Defendant Christopher Stone with the Statement of Damages via mail to the address provided by Christopher Stone in the substitution of attorney. (Decl. Mermelstein Ex. 7)

            In a July 8, 2013, minute order, the court ruled that the Order to Show Cause re Default and/or Default Judgment was continued to September 6, 2013.

On August 7, 2013, Plaintiff filed and served notice to Defendant of the September 6, 2013, hearing re Default and/or Default Judgment. (Decl. Mermelstein Ex. 8)

            Plaintiff filed a Request for Entry of Default Judgment against Defendant Christopher Stone on August 28, 2023, and provided mail service to Christopher Stone at the address designated by him in the Substitution of Attorney. (Decl. Mermelstein Ex. 9)

            Plaintiff obtained a Judgment by Default against Defendant Christopher Stone awarding

Plaintiff General Damages in the amount of $500,000.00, Special Damages in the amount of

$320.00, Punitive Damages in the amount of $500,000, Attorney Fees in the amount of $125,528.00 and Costs in the amount of $3,003.17. This Judgment was entered into this action on December 11, 2013 by the Plaintiff. (Decl. Mermelstein Ex. 15)

On November 28, 2023, Plaintiff timely filed an Application For and Renewal of Judgment and Memorandum of Costs after Judgment with the Court in this instant action.

The Court approved the Notice of Renewal of Judgment on January 12, 2024. (Decl. Mermelstein Ex. 17)  Plaintiff served Defendants with the Notice of Renewal of Judgment and

Application for and Renewal of Judgment on January 15, 2024. (Decl. Mermelstein Ex. 18)

            On March 12, 2024, Defendant Christopher Stone timely filed a Motion to Vacate Renewal of Judgment by Default Pursuant to CCP Section 683.170.

DISCUSSION

In personal injury and wrongful death actions, the complaint must not state the amount of damages sought (CCP § 425.10).   Therefore, before a default may be entered, plaintiff must serve defendant with a statement of “the nature and amount of damages being sought.” (CCP § 425.11(b), (c); see Hamm v. Elkin (1987) 196 CA3d 1343, 1345-1346 [service after default entry but before prove-up not sufficient.])    If defendant has appeared in the lawsuit, the notice may be served by mail on defendant's attorney of record or on defendant if in pro per. [CCP § 425.11(d)(2)]

The purpose of a CCP § 425.11 statement prior to default is to give defendant “one last chance” to respond, knowing exactly what judgment may be entered if he or she fails to appear. Absent such statement, defendant lacks notice of the actual liability threatened, so that any default judgment is void. (Stevenson v. Turner (1979) 94 CA3d 315, 319; Janssen v. Luu (1997) 57 CA4th 272, 275.)       A CCP § 425.11 statement is required for entry of default where an answer has been filed but is later ordered stricken as a discovery sanction. Due process requires such notice “whether [defendants] default by inaction or by wilful obstruction” of discovery. (Greenup v. Rodman (1986) 42 C3d 822, 829; Morgan v. Southern Calif. Rapid Transit Dist. (1987) 192 CA3d 976, 985.)

In the present case, Defendants contend that they were not properly served.   As stated above, Defendants answered the complaint on May 18, 2011, and Defendants were served with the CCP § 425.11 statement by mail on June 26, 2013, prior to the default being entered against Defendants.  Pursuant to CCP § 425.11(d)(2), if defendant has appeared in the lawsuit, the notice may be served by mail on defendant's attorney of record or on defendant if in pro per. As such, the Court finds that Defendants were properly served with the CCP § 425.11 statement.

In the present case, Defendant contends that plaintiff’s complaint does not include a cause of action for personal injury, and as such, the CCP § 425.11 statement fails to provide for

the formal notice required before plaintiffs may obtain compensatory damages exceeding

the amount requested in the complaint.

            Contrary to Defendants’ assertions, the court finds that Plaintiff’s complaint contains personal injury cause of action.  Plaintiff’s Complaint asserts causes of action for (1) Defamation; (2) False Light; (3) Public Disclosure of Facts; (4) Abuse of Process; (5) Intentional Infliction of Emotional Distress; and (6) Violation of Business and Professions Code § 17200 et seq. against the Defendants.  The cause of action of defamation is understood as a personal injury claim.  (See, O'Hara v. Storer Communications, Inc. (1991) 231 Cal.App.3d 1101, 1118.)  Also, the cause of action for intentional infliction of emotional damage constitutes a claim of

personal injury against the Defendants. (See, Globe Internat, Inc. v. Superior Court (1992) 9

Cal.App.4th 393, 398–399.)  Finally, the causes of action for false light and public disclosure of private facts constitute a claim for personal injury against the Defendants.  (See,  O'Hilderbrandt v. Columbia Broadcasting System, Inc. (1974) 40 Cal.App.3d 323, 329.) 

            Based upon the foregoing the court finds that the CCP § 425.11 statement served on Defendants was proper, and the CCP § 425.11 statement informed Defendants of the nature and the amount of damages being sought.

             In the present case, Defendant contends that punitive damages must be vacated  because the “complaint fails to specify any damages whatsoever—no compensatory damages, no general damages and no special damages.”  (Defendants’ Motion p. 8)  The court finds that the judgment properly awarded compensatory damages to Plaintiff and that the award of punitive damages are consistent with the holding in State Farm Mut. Automobile Ins. Co. v. Campbell (2003) 538 U.S. 408, 410.

            In the present case, Defendant contends that Plaintiff’s attorneys’ fees and costs must be vacated because all damages shall be void. As set forth above, the damages awarded by the court in this instant action should not be vacated since the default judgment was appropriate and did not violate due process.  In accordance with the equitable private attorney general doctrine, Plaintiff filed the a request for attorney’s fees Pursuant to CCP §1021.5, and the court properly approved the attorney’s fees for Plaintiff.

CONCLUSION

            Defendant’s Motion to Vacate Renewal of Judgment by Default Pursuant to CCP § 683.170 is DENIED.