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LLamas v. Brauer6/12/2002
ally a default judgment.
Although the judgment in the underlying case was labeled a default judgment, it does not qualify as a default judgment. A default judgment may be taken when the defendant fails to answer the complaint or take certain other actions. (Code Civ. Proc., ยง 585, sub. (b).) In the underlying case, however, Llamas answered the complaint and pursued the case for over a year. On March 11, 1997, the date set for trial, he appeared with counsel Moustakas and informed the court he would not contest the case. Therefore, despite being labeled a default, " he hearing was one which was 'uncontested'; it was not a default hearing [citation], and the judgment was not a default judgment." (Merrifield v. Edmonds (1983) 146 Cal.App.3d 336, 341.)
We decline to discuss Llamas's contention that he may attack the judgment collaterally due to fraud or extrinsic mistake because his contentions all rely upon alleged procedural errors in granting a default judgment.
III. Service of First Statement of Damages
We reject Llamas's contention the underlying judgment is void because the statement of damages was not served with the complaint as required by San Diego Superior Court Rule 2.5, subdivision (2) (formerly rule 5.6, subdivision (A)). Llamas waived this contention by failing to object.
Superior Court Rule 2.5, subdivision (2) provides " he following must be served with the complaint: . . . [ ] 2. A notice of the amount of special and general damages if the complaint seeks to recover damages for personal injury or wrongful death . . . ." Most mandatory procedural requirements are not jurisdictional. (See, e.g. Security Trust & Savings Bank v. Fidelity & Deposit Co. (1920) 184 Cal. 173, 176 [lack of verification of petition for appointment of guardian].) This rule, like other procedural rules, does not impact the court's jurisdiction.
Therefore, Llamas was required to object to Brauer's failure to file a Statement of Damages with her complaint. " ' party is precluded from urging on appeal any point not raised in the trial court. [Citation.] Any other rule would " ' "permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not." [Citations.]' [Citation.]" [Citation.]' " (In re Aaron B. (1996) 46 Cal.App.4th 843, 846.) By failing to object, Llamas waived this contention on appeal.
IV. Service of Second Statement of Damages
We reject Llamas's contention the underlying judgment is void because he was not personally served the second statement of damages although it was served by mail on Moustakas. Llamas contends he was pro per at the time the second statement of damages was filed because Moustakas had not filed a substitution of attorney form with the court. However, on March 11, when he and Moustakas stated Llamas did not intend to contest Brauer's action, he was accompanied by Moustakas and stated, on the record, that Moustakas was his counsel. Given that statement, Llamas is estopped from contending he was pro per. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403.)
We also reject Llamas's contention the judgment is void because the second statement of damages, which contained a higher amount of damages than the first statement of damages, was filed after Llamas said he would not contest the action. The second statement of damages was served on Moustakas on March 28 and was filed on April 16. The court entered judgment on April 18.
We find that mailing the secon
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