Judge: Holly J. Fujie, Case: 21STCV17972, Date: 2022-10-14 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

Case Number: 21STCV17972    Hearing Date: October 14, 2022    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendant Arizona Townhomes Association (“Moving Defendant”)

RESONDING PARTY: Plaintiff

            The Court has considered the moving, opposition and reply papers. 

BACKGROUND

            This action involves a dispute with a Homeowners Association concerning its liability for damages to Plaintiff’s real property.  On September 10, 2021, Plaintiff filed the currently operative first amended complaint (the “FAC”) alleging: (1) breach of governing documents/enforcement of equitable servitudes; (2) nuisance; (3) trespass; (4) negligence; (5) breach of fiduciary duties; and (6) declaratory relief. 

On November 8, 2021, Moving Defendant’s default was entered as a result of its failure to answer the FAC.  On July 19, 2022, Moving Defendant filed a motion to set aside the default due to mistake, inadvertence, surprise, or excusable neglect pursuant to California Code of Civil Procedure (“CCP”) section 473, subdivision (b); on August 9, 2022, the Court denied this motion, finding that Moving Defendant did not satisfy the requirements of CCP section 473, subdivision (b).  

            On September 26, 2022, Moving Defendant filed a motion to vacate the default pursuant to CCP section 473, subdivision (d) (the “Motion”).  The current Motion argues that Moving Defendant’s default is void due to Plaintiff’s failure to file a statement of damages.

REQUEST FOR JUDICIAL NOTICE

            Moving Defendant’s supplemental Request for Judicial Notice is DENIED.

EVIDENTIARY OBJECTIONS

            Plaintiff’s objections to the Declaration of John A. Delis (“Delis Decl.”) are SUSTAINED in their entirety.

DISCUSSION

CCP section 473, subdivision (d) provides that the court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.  (CCP § 473, subd. (d).)

CCP section 425.11, subdivision (c) requires that a statement of damages for personal injury or wrongful death be served on a defendant before the defendant’s default may be taken. (See CCP § 425.11, subd. (c).)

Moving Defendant argues that Plaintiff’s claims constitute an action to recover damages for personal injury and therefore required the service of a statement of damages under CCP section 425.11 prior to the entry of default because the FAC includes a prayer for “compensatory non-economic damages for loss of use and enjoyment of the Property, emotional distress, mental anguish, and annoyance of at least $800,000.00, with the exact amount to be proven at trial.”  (See FAC 9:7-8.)

Moving Defendant relies on Schwab v. Rondel Homes, Inc. (1991) 53 Cal.3d 428 (“Schwab”) to support its position that while it alleges causes of action related to breaches of contract and property damage, the FAC functionally alleges personal injury claims.  In Schwab, the California Supreme Court found that while the plaintiffs’ complaint alleged a housing discrimination claim, their complaint demonstrated that their alleged mental and emotional distress damages lay at the heart of the action such that their action constituted an action to recover actual or punitive damages for personal injury or wrongful death under CCP section 425.10.  (Schwab, supra, 53 Cal.3d 428, 432.)  Because the plaintiffs failed to serve the defendant with a statement of damages before its default was entered, the Court found that the defendant’s default could not be taken and default judgment could not be entered against it.  (See id. at 435.)

            The Court finds that Schwab is distinguishable from this matter.  The complaint in Schwab prayed that each plaintiff recover for mental and emotional distress and for further monetary and pecuniary losses and damages in amounts according to proof, treble statutory damages also in amounts according to proof but in a sum no less than $250, attorney fees, and punitive damages of $500,000.  (See id. at 420.) 

            In Schwab, therefore, the Complaint did not specify an amount of damages that the plaintiffs sought for emotional damages.  Here, the FAC alleges a certain sum in emotional distress damages, and as the causes of action in the FAC (and more than nominal portions of the prayer for relief) concern property damage.  The Court finds that Plaintiff’s claims are not an action to recover damages for personal injuries that require the service of a statement of damages before a defendant’s default may be entered.^[1]

Moving Defendant also raises arguments regarding the propriety of Plaintiff receiving an award of punitive damages based on the failure to serve a statement of damages regarding the requested punitive damages as required by CCP section 425.115.  CCP section 425.115 limits a plaintiff’s ability to recover punitive damages in a default judgment but does not place limitations on entering defendant’s default.  (See CCP § 425.115, subd. (b) (a plaintiff preserves the right to seek punitive damages pursuant to Civil Code section 3294 on a default judgment by serving upon the defendant a statement of damages).)

Moving Defendant has not provided any authority for the proposition that the failure to serve a statement of damages regarding punitive damages prior to the entry of default renders the default void.  To the extent that Moving Defendant argues that Plaintiff is precluded from obtaining a default judgment that includes an award of punitive damages, such argument is premature, as the prove-up hearing for Plaintiff’s application for default judgment remains pending and will not be heard until October 28, 2022.

            The Court therefore DENIES the Motion.  The Court sets a non-appearance case review regarding Plaintiff’s pending application for default judgment on August 30, 2022 at 10:30 a.m.

            Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

 Dated this 14th day of October 2022