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Phoenix American Inc. v. American Arbitration Association2/11/2003
Section 585, subdivision (b), which governs default judgments in "other actions" in which the defendant has been served other than by publication, does not expressly refer to attorney fees but simply provides that, after a default is entered, "the plaintiff thereafter may apply to the court for the relief demanded in the complaint; the court shall hear the evidence offered by the plaintiff, and shall render judgment in his or her favor for such sum (not exceeding the amount stated in the complaint . . . ), as appears by such evidence to be just."
Section 1033.5, subdivision (a)(10), provides that attorney fees are allowable as costs when authorized by contract, statute or law. When authorized by contract, attorney fees "shall be fixed either upon a noticed motion or upon entry of a default judgment, unless otherwise provided by stipulation of the parties." (ยง 1033.5, subd. (c)(5).)
None of these statutes and rules expressly requires notice to a defendant of the specific amount of attorney fees sought when a default and default judgment are sought. This is contrary to the purpose of section 580. As discussed above, however, the requirement that a defaulting defendant be given notice of his or her potential liability was "designed to insure fundamental fairness." (Greenup v. Rodman, supra, 42 Cal.3d at p. 826.) "A due process requirement of notice of the degree of financial liability of a defaulting defendant has been consistently applied over time. (See, e.g., In re Marriage of Wells (1988) 206 Cal.App.3d 1434, 1437-1439 . . . ; Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 386 . . . ; Lee v. Ski Run Apartments Associates, supra, 249 Cal.App.2d 293, 295 . . . ; Taliaferro v. Davis (1963) 216 Cal.App.2d 398, 408-409 . . . .)" (Ely v. Gray, supra, 224 Cal.App.3d at p. 1261.)
Unlike other items of costs, there is no ready reference by which a defaulting defendant might anticipate the amount of attorney fees to be claimed by the plaintiff. Yet, as the present case demonstrates, a defendant's liability for attorney fees may far exceed any liability for damages. Accordingly, notice of the amount of attorney fees sought is as necessary as notice of other relief sought: The absence of such notice deprives the defendant of the ability to properly evaluate whether to oppose an action or seek relief from default. (See, Janssen v. Luu, supra, 57 Cal.App.4th at p. 275.) This problem can be avoided by indicating the amount of attorney fees sought on the request for default form. Where neither the complaint nor the notice of default states the amount of attorney fees, however, the defaulting defendant must be given an opportunity to contest the fee portion of the costs bill. Because appellants here had neither notice of the amount of attorney's fees sought nor an opportunity to contest the fee request, the portion of the judgment awarding attorney fees must be reversed. This conclusion makes it unnecessary for us to determine whether the appearance by West as appellants' assignee precluded entry of default against appellants. Due to appellants' failure to seek relief from default in the trial court, this is a point the trial court has not had an opportunity to resolve.
The portion of the judgment awarding attorney fees is reversed and the matter remanded for proceedings consistent with the views expressed herein. In all other respects, the judgment is affirmed.
We concur:
Lambden, J.
Ruvolo, J.
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