Judge: Michelle C. Kim, Case: 19STCV00574, Date: 2023-10-17 Tentative Ruling
Case Number: 19STCV00574 Hearing Date: January 29, 2024 Dept: 31
DEPT:
| 31 |
OSC DATE:
| 01/29/2024 |
CASE NAME/NUMBER:
| 19STCV00574 LEKESHA HAWES vs KENNEDY GORDY |
REQUEST FOR COURT JUDGMENT AGAINST [DEFAULTING PARTY]:
| KENNEDY GORDY |
RECOMMENDATION:
| DENY for reasons stated below. |
TENTATIVE
Plaintiff Lekesha Hawes (“Plaintiff”) filed this action against Defendant Kennedy Gordy (“Defendant”) for injuries arising from allegations that Defendant hit Plaintiff with a chair. Plaintiff has properly dismissed all other defendants.
This is Plaintiff’s second request for default judgment. The request for default judgment submitted on November 30, 2023 is DENIED for the following reasons:
STATEMENT OF DAMAGES
Plaintiff’s Counsel (“Counsel”) declares that Defendant was served with Statement of Damages on April 16, 2019 (Harutyunyan Decl. ¶3; Exh. D.) and again by substituted service on November 25, 2020 (Id. at ¶ 5.)
However, the services of the Statement of Damages are defective. Counsel’s Exhibit D demonstrates that the proof of service was mailed, and the November 25, 2020 substitute proof of service lacks an affidavit of diligence demonstrating attempts were made to effectuate personal service prior to resorting to substituted service.
Personal service is required for the Statement of Damages, including any amendments increasing damage demands. (Plotitsa v. Superior Ct. (1983) 140 Cal. App. 3d 755, 760.) After reasonable diligence effecting personal service is not successful, then a plaintiff has the same protection as with service of summons on original complaints under sections 415.20 and 415.50 provide for substituted service and service by publication. (Id. at 761.)
In personal injury and wrongful death cases, a plaintiff must serve a statement of damages setting forth the nature and amount of damages to be sought before default may be taken. (CCP §425.11.) A default judgment is void if the required statement of damages was not served on the defendant before the default was taken. (Van Sickle v. Gilbert, supra, 196 Cal.App.4th at p. 1521, 127 Cal.Rptr.3d 542.) Formal notice “is an essential prerequisite to a valid default judgment.” (Engebretson & Co. v. Harrison (1981) 125 Cal.App.3d 436, 443-444, 178 Cal.Rptr. 77 [mail service constituted inadequate notice].)
Plaintiff must demonstrate Defendant was properly served with the Statement of Damages prior to obtaining default. If Plaintiff is unable to do so, then the default obtained will be rendered void, and Plaintiff must seek new entry of default after proper service.
FORM DEFICIENCIES
The proposed judgment (JUD-100) provides that Plaintiff seeks $1,179,781 in damages. This does not match with the request for court judgment (CIV-100) seeking $479,781 in damages. Plaintiff must be consistent in the amount sought.
The Court also notes that any declaration attesting to Plaintiff’s damages, including medical bills incurred, must be in Plaintiff’s declaration for the Court’s consideration, not in Counsel’s. Counsel did not incur the alleged damages or undergo any treatment to have the prerequisite personal knowledge to attest to pain and suffering or authenticate any documents.
No later than _____________, Plaintiff is to submit a new default judgment package correcting these defects. Failure to do so may result in the imposition of sanctions, including monetary sanctions and/or dismissal. The OSC re entry of default judgment is continued to ____________.