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Hinton v. Grange Insurance Group11/6/2002
uthorities, cited by Grange, support this determination. In Plotitsa v. Superior Court (1983) 140 Cal.App.3d 755 (Plotitsa), the defendants were validly served with the original complaint in a personal injury action but did not appear in the action. In her request to enter default, the plaintiff indicated only the total amount of damages sought. The defendants were not personally served with the request and received no prior notice of the statement of damages. Default was entered. The trial court denied the defendants' motion under section 473 to set aside the default. (Plotitsa, supra, 140 Cal.App.3d at p. 758.)
The appellate court granted the defendants' petition for mandate and directed the trial court to enter an order granting the motion to set aside the default. The court found personal service of the request to enter the default was required since there had been no prior notice to the defendants that complied with section 425.11. Accordingly, the court held the default "is void on the face of the record and may be successfully challenged beyond the six-month limitation period specified in section 473." (Plotitsa, supra, 140 Cal.App.3d at p. 760.) Because the entry of default without notice of the special and general damages sought amounts to a denial of due process, ". . . a judgment entered thereon is an excess of jurisdiction because section 580 limits the amount of a default judgment to that demanded in the complaint." (Plotitsa, supra, 140 Cal.App.3d at p. 760.)
The Supreme Court in Greenup v. Rodman (1986) 42 Cal.3d 822, 826 (Greenup) echoed Plotitsa, stating: "Section 580, and related sections 585, 586, 425.10 and 425.11, aim to ensure that a defendant who declines to contest an action does not thereby subject himself to open-ended liability. Reasoning that a default judgment that exceeds the demand would effectively deny a fair hearing to the defaulting party, the Courts of Appeal have consistently read the code to mean that a default judgment greater than the amount specifically demanded is void as beyond the court's jurisdiction."
Finally, the appellate court in Twine v. Compton Supermarket (1986) 179 Cal.App.3d 514, 517-518 (Twine) held: " default that is void on the face of the record when entered for failure to personally serve a statement of damages is subject to challenge at any time. [Citation.] Such questions of jurisdiction are never waived and may be raised for the first time on appeal [citations] or by collateral attack."
Hinton argues, despite the authority cited by Grange, that when due process has not been violated, courts have sustained a default judgment despite the plaintiff's failure to serve written notice of the damages sought. Hinton cites In re Marriage of Andresen (1994) 28 Cal.App.4th 873 (Andresen). However, Andresen, a marital dissolution action, did not consider failure to personally serve a statement of damages. In Andresen, the husband sought to set aside a default, arguing the default judgment provided relief in excess of that demanded in the complaint.
The court found due process satisfied and sufficient notice is given for section 580 purposes in marital dissolution actions by a petitioner's act of checking the boxes and inserting the information called for on the standard form dissolution petition. (Andresen, supra, 28 Cal.App.4th at p. 879.) We find Andresen inapplicable.
Hinton also relies on Cassel v. Sullivan, Roche & Johnson (1999) 76 Cal.App.4th 1157 (Cassel). In Cassel, an attorney sued his former law partners. The court found in an action seeking to value a former partner's partnership interest a default can be entered without service of a statement of damages on the defaulting de
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