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Hinton v. Grange Insurance Group11/6/2002
. . . ." The court granted judgment against Beck in the amount of $2,000,000 plus costs, disbursements, and interest.
Hinton filed a motion for a new trial, a motion for reconsideration, and a motion to vacate in the Sacramento court. Hinton attached the new Shasta court judgment to her motion.
The court denied the motions, holding: ". . . Shasta Court concludes that defendant having been orally notified of actual economic damages in the amount of $200,000, `impliedly waived his right to service of a written statement of damages on him'. This Court is unpersuaded by the record before it. No knowing, informed waiver appears in the record. [ ] The Supreme Court has not allowed a default judgment to be entered against defendants without proper notice to them of the amount of damages sought. `A defendant is entitled to actual notice of the liability to which he or she may be subjected, a reasonable period of time before default may be entered.' Schwab v. Rondel Homes, Inc. (1991) 53 Cal.3d 428, 435. Plaintiff has cited no authority to support her conclusion that the defendant may impliedly waive her rights to notice of the amount of damages sought under C.C.P. section 425.11(c) . . . ." Hinton filed a timely notice of appeal.
DISCUSSION
I.
On appeal from a summary judgment, our assessment involves the same three-step analysis applicable in the trial court. We first identify the issues framed by the pleadings since it is these allegations to which the motion responds. Second, we determine whether the moving party's showing has established facts that negate the opponent's claim and justify a judgment in movant's favor. Third, we determine whether the opposition demonstrates the existence of a triable, material factual issue. (Todd v. Dow (1993) 19 Cal.App.4th 253, 258.)
In moving for summary judgment, a defendant meets the burden of showing that a cause of action has no merit if the defendant has shown that one or more elements of the cause of action cannot be established, or if there is a complete defense to the cause of action. Once the defendant meets this burden, the burden shifts to the plaintiff to show the existence of a triable issue of one or more material facts. The plaintiff may not rely upon the mere allegations or denials of the pleadings to show a triable issue of material fact exists but must set forth the specific facts showing a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849; ยง 437c, subd. (o)(2).)
In reviewing an order granting summary judgment, we assume the role of the trial court and redetermine the merits of the motion. We strictly scrutinize the moving party's papers; however, we liberally construe the declarations of the party opposing summary judgment to determine the existence of triable issues of fact. All doubts as to whether any material, triable issues of fact exist are to be resolved in favor of the party opposing summary judgment. (ML Direct, Inc. v. TIG Specialty Ins. Co. (2000) 79 Cal.App.4th 137, 140-141.)
II.
The trial court granted Grange's motion for summary judgment after finding the underlying default judgment against Beck was void as a matter of law since the statement of damages was never personally served. On appeal, Hinton argues the default judgment was voidable, not void, and therefore valid until set aside.
Hinton's first amended complaint alleged three causes of action against Grange: breach of contract, breach of the covenant of good faith and fair dealing, and negligent procurement of insurance. During the litigation, Hinton conceded the statute of limitations barred the negligent procuremen
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