Judge Randolph M. Hammock, Case 20STCV31581 2022-12-08 Tentative Ruling

The moving Defendants first moved to set aside the default judgment in this case under CCP section 473(d), contending they had never been served. The court rejected that argument, finding that each Defendant had been served by valid substituted service. This court also found that Defendants failed to exercise diligence in seeking relief. In its Final Ruling, however, this court noted that it made “no findings at [that] time as to whether the default judgment is void, as a matter of law, per Dhawan v. Biring.” (Final Ruling, 10/17/2022.) Defendants now move to set aside the default judgment pursuant to that authority.

Defendants move for relief under section 473(d), arguing the default judgment entered here previously is void as a matter of law. This Court agrees that Defendants are entitled to such requested relief as a matter of law.

Section 473(d) provides that “[t]he 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.” “[I]nclusion of the word “may” in the language of section 473, subdivision (d) makes it clear that a trial court retains discretion to grant or deny a motion to set aside a void judgment. [Citation.] However, the trial court has no statutory power under section 473, subdivision (d) to set aside a judgment that is not void.” (Kremerman v. White (2021) 71 Cal. App. 5th 358, 369.) “Generally, defendants have six months from entry of judgment to move to vacate. [Citation.] But, if ‘the judgment is void on its face, then the six month limit set by section 473 to make other motions to vacate a judgment does not apply.” [Citation.] (Id. 369-70.)

“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.’ [Citation.] 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.’ (§ 670, subd. (a).) If the invalidity can be shown only through consideration of extrinsic evidence, such as declarations or testimony, the order/judgment is not void on its face.” [Citation.] (Id. at 370.)

Here, Plaintiff’s Complaint is essentially silent on the specific amount of damages sought. (See Compl., generally.) Code of Civil Procedure section 580, subdivision (a), “limits a trial court's jurisdiction to grant relief on a default judgment to the amount stated in the complaint.” (Dhawan v. Biring (2015) 241 Cal. App. 4th 963, 968.) This rule “is to ensure that a defendant is given adequate notice of the amount of the judgment that may be entered against the defendant, as required by due process.” (Id. at 969.)

In Dhawan, the Court recognized “a strict interpretation of section 580's requirement that a defendant be given formal notice–in the form of an amended complaint–of the extent of liability stemming from a decision to not appear in response to a complaint.” (Id. at 970.) In doing so, it found the “trial court exceeded its jurisdiction under section 580 by entering default judgment when plaintiff's complaint did not state the amount of damages being sought.” (Id. at 972-973.) Following a line of California authority, the Court concluded this rendered the default judgment “void, not voidable, and subject to collateral attack at any time.” (Id. at 974.) For that reason, the trial court correctly vacated the default judgment under section 473(d)—seven years after the default judgment had been entered. (Id. at 967, 975.)

In opposition, Plaintiff contains that Dhawan is inapplicable. (Opp. 2: 13-14.) She argues that Dhawan “involved a breach of contract action,” but that this case does not. (Opp. 2: 14-17.) Rather, she says it involves her “civil rights and personal injuries,” to which Dhawan does not apply. (Id.) Notably, under CCP section 425.10, subdivision (b), a complaint in an action for personal injury or wrongful death may not state the amount of damages. Instead, a Plaintiff must serve a statement of damages under section 425.11, subd. (b). Accordingly, Dhawan does not apply to personal injury or wrongful death actions.

This court disagrees, however, that this case is one for personal injury. The Complaint asserts causes of action for (1) age discrimination, (2)&(3) harassment/hostile work environment, (4) wrongful termination, (5) failure to pay overtime wages, (6) failure to provide proper wage statements, (7) failure to provide mandated meal and rest periods, (8) unfair business practices, and (9) intentional infliction of emotional distress. Plaintiff alleges that Defendants terminated her employment and replaced her with “someone half her age,” “who had no experience in the travel industry,” and for “much less than what the Plaintiff was earning.” (Compl. ¶ 18.) While employed, Plaintiff alleges she “worked long grueling hours…including nights, weekends and holidays,” but was never paid overtime. (Id. ¶ 15.) Plaintiff alleges Defendant Campbell was “abusive and harassing,” and made rude or derogatory comments about Plaintiffs age, religion, and appearance. (Id. ¶ 19.)

Here, the gravamen of the Complaint is based on wrongful termination and related FEHA claims. (See Holmes v. Gen. Dynamics Corp. (1993) 17 Cal. App. 4th 1418, 1436 [“A wrongful termination claim primarily involves the infringement of property rights, not personal injury].) Plaintiff’s only authority is Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976 (1993), in which the Court held that a claim for sexual harassment under FEHA was a claim for personal injuries—at least as to the prejudgment interest statute. This authority is inapposite.

Moreover, to the extent the Complaint—or any particular cause of action therein—is based on personal injuries, Plaintiff would have needed to serve a statement of damages. (See § 425.11 [“the plaintiff shall serve the statement on the defendant before a default may be taken” and “the statement shall be served in the same manner as a summons.”].) However, she concedes she did not. Rather, she contends “[t]here was no point” in serving a statement of damages because “there was no indication that service of a statement of damages would have done anything to spur action by the Defendants.” This is plainly insufficient. Failure to serve a required statement of damages renders the default judgment void. (Schwab v. Rondel Homes, Inc. (1991) 53 Cal.3d 428, 435.) “The statutes recognize a defendant's entitlement to ‘one last clear chance’ to respond to the complaint and avoid the consequences of a substantial judgment.” (Dhawan, supra, 241 Cal. App. 4th at 969.)

Thus, whether viewed as a personal injury case or, more appropriately, as a non-personal injury case, Defendants did not receive their “last clear chance” to defend the action. (Dhawan, supra, 241 Cal. App. 4th at 969.) No matter how one slices it – personal injury or non-personal injury -- the resulting judgment is void on its face.

Finally, Plaintiff is incorrect that Defendants “must establish a meritorious defense, a satisfactory excuse for not presenting the defense initially, and diligence in seeking to set aside the default.” (Opp. 2: 19-20.) In making this argument, she confuses the court’s equitable powers to set aside a default (which does require these elements) with the court’s power to grant relief under section 473(d).

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.