Judge: Michelle C. Kim, Case: 20STCV35975, Date: 2024-01-25 Tentative Ruling


Case Number: 20STCV35975    Hearing Date: January 25, 2024    Dept: 31

DEPT:  

 

31 

OSC DATE: 

 

01/25/2024 

CASE NAME/NUMBER: 

 

20STCV35975 CRISTOFHER POCASANGRE vs JONATHAN LYNDALE, ET AL. 

REQUEST FOR COURT JUDGMENT AGAINST [DEFAULTING PARTY]: 

 

JONATHAN LYNDALE 

RECOMMENDATION: 

 

DENY for reasons stated below. 

 

TENTATIVE 

 

This is Plaintiff’s first request for default judgment. The request for default judgment submitted on December 8, 2023 is DENIED for the following reasons: 

 

  1. STATEMENT OF DAMAGES 

 

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. (Code Civ. Proc., section 425.11.) The purpose of the statement of damages is to ensure that a defendant who declines to contest an action does not thereby subject himself to open ended liability. (Schwab v. Rondel Homes, Inc. (1991) 53 Cal.3d 428, 435 (quoting Greenup v. Rodman (1986) 42 Cal.3d 822, 826.) 

 

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.)  

 

The statement of damages must be served in the same manner as the summons and complaint. The default is void absent a properly served statement of damages. (Hamm v. Elkin (1987)196 Cal.App.3d 1343; Code of Civ. Proc. 425.11.) Here, Plaintiff’s application for service by publication upon Jonathan Lyndale Kirk (“Kirk”) was granted on September 29, 2022. The proof of publication, filed on December 20, 2022, provides the summons and complaint. Information on the statement of damages was not published. Instead, the “proof of service of statement of damages” filed on February 27, 2023 indicates the statement of damages was served by mail.  

 

Service of the statement of damages by mail is improper service, and fails to provide Kirk with adequate notice. 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].)  

 

Therefore, the entry of default improperly obtained against Kirk on April 25, 2023 is hereby rendered VOID. (CCP 425.11(c)-(d).) After Plaintiff has properly served Kirk with the statement of damages, Plaintiff must seek new entry of default. 

 

  1. FORM AND PROCEDURAL DEFICENCIES 

 

First, Plaintiff utilizes an outdated CIV-100 [Rev. January 1, 2007] form. Plaintiff must use CIV-100 [Rev. January 1, 2023] and checkmark the appropriate Request at the top of CIV-100 for “Court Judgment” once all the noted defects are cured, and a new default package is submitted. 

 

Second, the proposed judgment on JUD-100, Item 6(1)-(6) [as applicable] must be filled in. The amounts must match with that provided in CIV-100. The checkmark of Item 6(a) that Plaintiff seeks the amount in the complaint is not proper. In a personal injury action, no specific amount should be pled in the complaint, and following this principal, Plaintiff’s complaint has no amount stated for Item 6(a) on JUD-100 to be proper. Additionally, Plaintiff is requested to use the most updated available form JUD-100 [Rev. January 1, 2024].  

 

Third, Plaintiff must dismiss all other parties (including all unnamed Doe Defendants) against whom default judgment is not sought or apply for a separate judgment against unspecified parties under Code of Civil Procedure section 579, supported by a showing of grounds for each judgment. (CRC, Rule 3.1800 (a)(7).) Plaintiff has not dismissed DaBaby aka Baby Jesus, Billion Dollar Baby Ent, and Does 1 to 100. 

 

Lastly, Plaintiff’s declaration in support of the request for court default judgment provides no supporting documents of the amount of damages incurred. A defaulting defendant admits only the well pled facts concerning liability, not damages; Plaintiff must still introduce admissible prima facie evidence of damages. (Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361.) Plaintiff must provide admissible evidence proving the damages suffered as a result of assault and battery by Kirk. The documentation, such as medical records and medical bills, must be authenticated by Plaintiff.  

 

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 ___________.