Judge: Lisa R. Jaskol, Case: BC686132, Date: 2025-01-21 Tentative Ruling
Case Number: BC686132 Hearing Date: January 21, 2025 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On December 8, 2017, Plaintiff Barbara Andrews (“Plaintiff”) filed this action against Defendants Mark Judaken (“Judaken”), Kalnel Gardens, LLC (“Gardens”), Nissan Woodworks, LLC, Garth Street, LLC (“Garth”), Cocal Real Estate Investments, LLP (“Cocal”), Moko Management, LLC (“Moko”), and Does 1-99 for premises liability, negligence, breach of contract, fraud/deceit/intentional misrepresentations, and intentional infliction of emotional distress. Plaintiff asserted each cause of action against each defendant.
On February 16, 2018, Plaintiff filed proofs of service showing substituted service of the summons, complaint, statement of damages, and other documents on Defendants Judaken, Gardens, Garth, Nissan Woodworks, LLC, Cocal, and Moko on February 13, 2018.
On September 18, 2018, the clerk entered the defaults of Defendants Judaken, Gardens, Garth, Nissan Woodworks, LLC, Cocal, and Moko.
On October 24, 2019 and July 26, 2021, the Court dismissed the Doe defendants without prejudice at Plaintiff’s request.
On January 23, 2020, the Court granted the motion of Defendant Nissan Woodworks, Inc. (“Nissan”), erroneously named as Nissan Woodworks, LLC, to set aside the default of Defendant Nissan Woodworks, LLC.
On February 13, 2020, Nissan filed an answer and a cross-complaint against Cross-Defendants Roes 1-100 for implied indemnity, contribution and indemnity, declaratory relief, negligence, and express indemnity.
On October 15, 2020, the Court dismissed Nissan’s cross-complaint without prejudice at its request.
On October 16, 2020, Plaintiff filed a notice of lodging of a statement of damages. The attached statement of damages was prepared on pleading paper, not the mandatory Judicial Council statement of damages form. The statement of damages listed $10 million in special damages, $25 million in general damages, and $100 million in punitive damages.
On January 6, 2021, the Court dismissed Nissan from Plaintiff’s complaint with prejudice at Plaintiff’s request.
On September 27, 2021, the Court granted Plaintiff’s motion for default judgment and entered judgment against Judaken, Gardens, Garth, Cocal, and Mok. The Court awarded Plaintiff $559,354.61.
Plaintiff subsequently assigned the September 27, 2021 judgment to Guaranty Collection Co., Inc. (“Guaranty”).
On June 26, 2024, the Court issued an abstract of judgment. On October 9, 2024, the Court issued a writ of execution.
On October 21, 2024, more than three years after the Court entered judgment, Judaken and Gardens (“Moving Defendants”) filed a motion to (1) vacate the default judgment, (2) vacate the default, (3) recall the writ of execution, and (4) cancel the abstract of judgment. The motion was set for hearing on December 12, 2024. On November 14, 2024, Guaranty filed an opposition. On December 5, 2024, Moving Defendants filed a reply. The Court continued the hearing to January 21, 2025.
No trial date is currently set.
PARTIES’ REQUESTS
Moving Defendants asks the Court to (1) vacate the default judgment, (2) vacate the default, (3) recall the writ of execution, and (4) cancel the abstract of judgment.
Guaranty asks the Court to deny the motion.
GUARANTY’S REQUEST FOR
JUDICIAL NOTICE
Granted: 4-8
Denied: 1-3
LEGAL STANDARD
A. Code of Civil Procedure section 473, subdivision (d)
“The court . . . may, on motion of either party after notice to the other party, set aside any void judgment or order.”
(Code
Civ. Proc., § 473, subd. (d).)
“There is no time limit to attack a judgment void on its face.” (Pittman v. Beck Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1021 (Pittman).) A default that is void on the face of the record when entered is subject to challenge at any time irrespective of the lack of diligence in seeking to set it aside within the six-month period of Code of Civil Procedure section 473. (L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2024) ¶ 5:490, p. 5-143 (Cal. Practice Guide).)
“ ‘A judgment is considered void on its face only when the invalidity is apparent from an inspection of the judgment roll or court record without consideration of extrinsic evidence. When a default judgment has been taken, the judgment roll consists of the summons, with the affidavit or proof of service; the complaint; the request for entry of default . . . , and a copy of the judgment.’ ” (Cal. Practice Guide, supra, ¶ 5:490.1, p. 5-144, quoting Kremerman v. White (2021) 71 Cal.App.5th 358, 370-371.)
“If the [judgment’s] invalidity can be shown only through consideration of extrinsic evidence, such as declarations or testimony, the order is not void on its face. Such an order must be challenged within the six-month time limit prescribed by [Code of Civil Procedure] section 473, subdivision (b), or by an independent action in equity.” (Pittman, supra, 20 Cal.App.5th at p. 1021.)
B. Equitable authority to vacate judgment
“Apart from any statute, courts have the inherent authority to vacate a default and default judgment on equitable grounds such as extrinsic fraud or extrinsic mistake.” (Bae v. T.D. Service Co. of Arizona (2016) 245 Cal.App.4th 89, 97 (Bae), citing Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981 (Rappleyea); Olivera v. Grace (1942) 19 Cal.2d 570, 575.) “ ‘Extrinsic fraud usually arises when a party is denied a fair adversary hearing because he has been “deliberately kept in ignorance of the action or proceeding, or in some other way fraudulently prevented from presenting his claim or defense.” ’ ” (Ibid., quoting Kulchar v. Kulchar (1969) 1 Cal.3d 467, 471 (Kulchar ).) “In contrast, the term ‘extrinsic mistake’ is ‘broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits. [Citations.] “Extrinsic mistake is found when [among other things] ... a mistake led a court to do what it never intended. . . .” ’ ” (Id. at pp. 97-98, quoting Rappleyea, supra, 8 Cal.4th at p. 981.)
A party may file a motion seeking equitable relief from a default and default judgment “ ‘even though the statutory period [for relief under Code of Civil Procedure section 473, subdivision (b)] has run.’ ” (Bae, supra, 245 Cal.App.4th at p. 98, quoting County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1229.)
To set aside a default judgment based on extrinsic mistake, the defaulted party must show (1) it has a meritorious case, (2) a satisfactory excuse for not presenting a defense, and (3) diligence in seeking to set aside the default once the defaulted party discovered it. (Bae, supra, 245 Cal.App.4th at p. 100.)
C. Statement of damages
Code of Civil Procedure section 425.11 provides in part:
“(b) When a complaint is filed in an action to recover damages for personal injury or wrongful death, the defendant may at any time request a statement setting forth the nature and amount of damages being sought. The request shall be served upon the plaintiff, who shall serve a responsive statement as to the damages within 15 days. In the event that a response is not served, the defendant, on notice to the plaintiff, may petition the court in which the action is pending to order the plaintiff to serve a responsive statement.
“(c) If no request is made for the statement referred to in subdivision (b), the plaintiff shall serve the statement on the defendant before a default may be taken.
“(d) The statement referred to in subdivision (b) shall be served in the following manner:
“(1) If a party has not appeared in the action, the statement shall be served in the same manner as a summons. . . .”
(Code Civ. Proc., § 425.11, subds. (b), (c), (d)(1).)
The Legislature instructed the Judicial Council to “develop and approve an official form for use as a statement of damages pursuant to [Code of Civil Procedure sections] 425.11 and 425.115.” (Code Civ. Proc., § 425.12, subd. (b).) The Legislature also authorized the Judicial Council to “prescribe by rule the form and content of forms used in the courts of this state.” (Gov. Code, § 68511.)
Exercising its statutory authority, the Judicial Council adopted form CIV–050 for mandatory use for statements of damages. “Wherever applicable, [forms adopted by the Judicial Council for mandatory use] must be used by all parties and must be accepted for filing by all courts.” (Cal. Rules of Court, rule 1.31(a).)
The relief granted to a plaintiff upon entry of a defendant's default cannot exceed the amount demanded in the complaint or, for personal injury cases where damages may not be stated in the complaint, the amount listed in the statement of damages. (Code Civ. Proc., §§ 580, subd. (a), 585, subd. (b).) “The notice requirement of section 580 was designed to insure fundamental fairness.” (Becker v. S.P.V. Construction Co. (1980) 27 Cal.3d 489, 494.) The statute insures that “defendants in cases which involve a default judgment have adequate notice of the judgments that may be taken against them. [Citation.] ‘If a judgment other than that which is demanded is taken against him, [the defendant] has been deprived of his day in court—a right to a hearing on the matter adjudicated.’ ’’ (Id. at p. 493.) A trial court exceeds its jurisdiction if it awards damages in excess of the amount specified in the complaint or statement of damages. (Id. at p. 494.)
“Defaulting parties have a constitutional right to adequate notice of the maximum judgment that may be assessed against them [citation].” (Cal. Practice Guide, supra, ¶ 5:250, p. 5-66.) However, “[i]n personal injury and wrongful death actions, the complaint must not state the amount of damages sought [citations]. Therefore, before a default may be entered, plaintiff must serve defendant with a statement of ‘the nature and amount of damages being sought.’ ” (Id., ¶ 5:82, p. 5-27, citing Code Civ. Proc., § 425.11.) “[S]ervice [of the statement of damages] after default but before prove-up [is] not sufficient.” (Ibid.) “The purpose is to give defendant ‘one last chance’ to respond, knowing exactly what judgment may be entered if he or she fails to appear.” (Id., ¶ 5:83, p. 5-28.) “Absent such statement, defendant lacks notice of the actual liability threatened, so that any default judgment is void.” (Ibid.)
Even when a statement of damages is required, however, “improper allegations of damages in the complaint may satisfy due process notice requirements.” (Cal. Practice Guide, supra, ¶ 5:84.1, p. 5-28.) “Defendant has various remedies (e.g., a motion to strike) to challenge improper pleadings. Failure to pursue such remedies waives the objection.” (Ibid.)
DISCUSSION
A. Moving Defendants' contention that the judgment and default are void
On February 16, 2018, Plaintiff filed proofs of service showing substituted service of a statement of damages on each defendant on February 13, 2018. On September 18, 2018, the clerk entered each defendant’s default. On September 27, 2021, the Court granted Plaintiff’s motion for default judgment and entered judgment against Moving Defendants, Garth, Cocal, and Mok for $559,354.61. The judgment consisted of $400,000.00 in general damages, $158,809.61 in special damages, and $545.00 in costs.
Moving Defendants argue the judgment against them is void and must be set aside because Plaintiff did not serve a statement of damages using the mandatory Judicial Council form but instead prepared the statement of damages using pleading paper. The statement of damages stated:
“NOTICE IS HEREBY GIVEN to the Defendants herein, and through their attorneys of record, that Plaintiff BARBARA ANDREWS claims the following special, general and punitive damages:
SPECIAL DAMAGES: $10,000,000.00
GENERAL DAMAGES: $25,000,000.00
PUNITIVE DAMAGES: $ 100,000,000,00”
Based on the differences between Plaintiff’s statement of
damages and the CIV-050 form, Moving Defendants argue that Plaintiff violated
their due process right to notice of the potential damages sought against them,
rendering the default and default judgment void.
The Court finds that the default and default judgment are not void. As noted, Code of Civil Procedure section 425.11, subdivision (c), provides, “the plaintiff shall serve the statement on the defendant before a default may be taken.” But the failure to serve this notice does not render a default or resulting default judgment void when the defendant received notice that satisfied due process requirements—that is, formal notice of the potential consequences of failing to defend the action. As a result, while entry of a default where the plaintiff failed to serve a statement of damages under Code of Civil Procedure section 425.11 may be voidable, it is not necessarily void. (See Greenup v. Rodman (1986) 42 Cal.3d 822, 829-830 (Greenup).)
In Greenup, supra, 42 Cal.3d 822, the plaintiff filed a complaint against the defendants alleging, among other things, infliction of emotional distress. The plaintiff claimed damages “ ‘in a sum that exceeds the jurisdictional requirements of this court.’ ” (Id. at p. 825.) “[T]he only specific sum requested was $100,000 in exemplary and punitive damages: all other damages were to be ‘subject to proof at time of trial’ or ‘as the court deems just.’ ” (Ibid.) The trial court struck the defendants’ answer as a discovery sanction and entered default judgment in the amount of $676,000. (Id. at pp. 825–826.) On appeal, the Supreme Court observed that “[Code of Civil Procedure] [s]ection 580, and related sections 585, 586, 425.10 and 425.11, aim to ensure that a defendant who declines to contest an action does not thereby subject himself to open-ended liability.” (Id. at p. 826.)
The issue before the Supreme Court was whether the default judgment could stand when the plaintiff “conced[ed] that she omitted to state an amount of damages in her demand for judgment as section 425.10, subdivision (b), requires ....” (Greenup, supra, 42 Cal.3d at p. 826.) The plaintiff also had not complied with Code of Civil Procedure section 425.11. The court explained “that due process requires notice to defendants, whether they default by inaction or by willful obstruction, of the potential consequences of a refusal to pursue their defense. Such notice enables a defendant to exercise his right to choose—at any point before trial, even after discovery has begun—between (1) giving up his right to defend in exchange for the certainty that he cannot be held liable for more than a known amount, and (2) exercising his right to defend at the cost of exposing himself to greater liability.” (Id. at p. 829.) The court concluded “[i]t would undermine this concern for due process to allow the judgment herein to stand despite plaintiff’s failure to meet the requirements of [Code of Civil Procedure] sections 425.10 or 425.11.” (Id. at p. 827.)
The court did not, however, find the entire default judgment invalid. The court rejected the defendants’ argument that because the “plaintiff stated no amount of damages in her prayer, she [was] entitled to no compensatory damages whatever.” (Greenup, supra, 42 Cal.3d at p. 829.) The court instead concluded the allegation in the complaint that the plaintiff “suffered damage ‘in an amount that exceeds the jurisdictional requirements of this court[ ]’ ... gave sufficient notice to defendants that she claimed at least $15,000 in compensatory damages.” (Id. at p. 830.) The Supreme Court therefore reduced the compensatory damages award to that amount. (Ibid.; see also Schwab v. Rondel Homes, Inc. (1991) 53 Cal.3d 428, 430-435 [distinguishing Greenup]; Cummings Medical Corp. v. Occupational Medical Corp. (1992) 10 Cal.App.4th 1291, 1296-1297; Uva v. Evans (1978) 83 Cal.App.3d 356, 360-361; Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1302.)
Here, too, even though Plaintiff did not use the mandatory CIV-050 form, Plaintiff gave Moving Defendants notice of the special and general damages for which they could be held liable. This is not a case where the plaintiff asserted different claims against different defendants, preventing each defendant from determining its potential liability. Instead, Plaintiff asserted each claim in her complaint against all defendants. As a result, Plaintiff’s statement of damages listed amounts for which all defendants allegedly were liable. Because Moving Defendants were not denied due process, the default and default judgment are not void.
Moving Defendants make other arguments concerning ownership of the property and relationship between the parties. These arguments would require consideration of extrinsic evidence. “If the [judgment’s] invalidity can be shown only through consideration of extrinsic evidence, such as declarations or testimony, the order is not void on its face. Such an order must be challenged within the six-month time limit prescribed by [Code of Civil Procedure] section 473, subdivision (b), or by an independent action in equity.” (Pittman, supra, 20 Cal.App.5th at p. 1021.) Moving Defendants filed their motion more than three years after the Court entered judgment. The Court therefore does not consider these arguments in deciding if the judgment is void on its face.
B. Request for equitable relief
Moving
Defendants state that they are relying on the Court’s “inherent equitable power
to prevent an injustice” as well as Code of Civil Procedure section 473, subdivision
(d). (Motion p. 2.) However, Moving Defendants have presented no argument
or authorities supporting an argument based on extrinsic fraud, extrinsic
mistake, or other ground for equitable relief.
In their reply, Moving Defendants clarify that
they do not contend that the default judgment was the result of extrinsic
fraud. (Reply p. 10.) “Rather, [Moving] Defendants contend the
default judgment is void on the face of the record.” (Reply p. 10.) Moving Defendants have waived any request in this motion for
equitable relief.
CONCLUSION
The Court DENIES the motion of Defendants Mark Judaken and Kalnel Gardens, LLC to vacate the default judgment, vacate the default, recall the writ of execution, and cancel the abstract of judgment.
Moving parties are ordered to give notice of this ruling.
Moving parties are ordered to file the proof of service of this ruling with the Court within five days.