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Hinton v. Grange Insurance Group11/6/2002
t cause of action.
Hinton brought the remaining two causes of action pursuant to Insurance Code section 11580, subdivision (b)(2), which requires insurance policies to contain: "A provision that whenever judgment is secured against the insured . . . in an action based upon bodily injury , . . . then an action may be brought against the insurer on the policy and subject to its terms and limitations, by such judgment creditor to recover on the judgment." The policy issued by Grange and purchased by Beck states: " o action with respect to Coverage E [personal liability] shall be brought against us until the obligation of the insured has been determined by final judgment." (Italics added.)
Hinton based her claims against Grange on the default judgment she obtained against Beck. However, Hinton failed to personally serve the statement of damages as required by section 425.11. Section 425.11, subdivision (b) states: "When a complaint is filed in an action in the superior court to recover damages for personal injury or wrongful death, the defendant may at any time request a statement setting forth the nature and amount of damages being sought . . . ." Subdivision (c) states: "If no request is made for the statement referred to in subdivision (b), the plaintiff shall serve the statement on the defendant before a default may be taken." Subdivision (d) provides if the party has not appeared in the action the statement of damages shall be served in the same manner as a summons.
Hinton argues the improperly served statement of damages rendered the judgment voidable, not void. Grange argues the underlying judgment was void and cannot support a claim under Insurance Code section 11580.
Hinton contends the trial court failed to distinguish between void judgments and voidable judgments. In support, Hinton relies on Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288 (Abelleira): "Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties. . . . [ ] But in its ordinary usage the phrase `lack of jurisdiction' is not limited to these fundamental situations. . . . t may be applied to a case where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no `jurisdiction' (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites."
Hinton argues a judgment is void only if the court lacks jurisdiction in the fundamental sense, jurisdiction over the subject matter and parties. Since the Shasta court had jurisdiction over both the parties and the subject matter, the judgment was not void but voidable. A voidable judgment is valid until set aside, and a party who consents to a voidable judgment is precluded from setting it aside.
Therefore, according to Hinton, since the default judgment Hinton relies upon has not been set aside, the judgment is valid and the court erred in granting summary judgment.
As Grange correctly discerns, a close reading of Abelleira supports the trial court's determination that the underlying default judgment is void. As Grange points out, Abelleira states the court has no jurisdiction to "act without the occurrence of certain procedural prerequisites." (Abelleira, supra, 17 Cal.2d at p. 288.) Here, Hinton's failure to meet the mandatory requirements of section 425.11 deprived the court of the power to grant a judgment in Hinton's favor. Therefore, the default judgment is void and beyond the trial court's jurisdiction.
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