2016-00198925-CU-WT

Kim Patterson vs. Amir Ibrahimzada

Nature of Proceeding: Default Hearing

Filed By: Bowman, Jr., Robert C.

The request for default judgment is denied.

Plaintiff’s request for default judgment on the original complaint, which sought no amount of damages, was rejected from the court’s default unit. (ROA # 21) Plaintiff was informed of the necessity of serving an amended complaint setting forth the amount of damages in a jurisdictional manner. However, the First Amended Complaint was served by mail. Defendant must be personally served with an Amended Complaint or a statement of damages in the manner of service of a summons and complaint.

As a general rule, failure to provide notice prior to default of the amount of damages sought precludes the recovery of damages pursuant to a default judgment. “The relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint, in the statement required by Section 425.11, or in the statement provided for by Section 425.115 . . . .” (§ 580, subd. (a); see also § 585, subds. (a), (b).) “[A] ctual notice of the damages sought is not sufficient; due process requires ‘formal notice.'” (Stein v. York (2010) 181 Cal.App.4th 320, 326.) A purpose of section 425.11 is to give the defendant “a final chance to respond to the allegations of the complaint [citation omitted], and this purpose would be frustrated if the plaintiff could wait until after the clerk’s default before serving the statement, when the defendant could respond only on the issue of damages.” (Hamm v. Elkin (1987)) 196 Cal. App. 3d 1343, 1346.)

Thus, a default is void if defendant has not been given proper notice of the amount of damages sought. Plotitsa v Superior Court (1983) 140 Cal.App.3d 755, 759; Stein v York (2010) 181 Cal.App.4th 320. A statement of damages under CCP 425.11 is the functional equivalent of an amendment to a complaint that increases the amount of damages sought. Accordingly, the statement of damages must be personally served. The parallel between an amended complaint seeking increased damages and a “statement of damages” pursuant to section 425.11 requires that the personal injury or wrongful death defendant be allowed the same period of time within which to respond to the “statement of damages” as other defendants are allowed to respond to such amended complaints. Section 471.5 provides 30 days from the date of service of an amendment to a complaint for filing of a responsive pleading. Plotitsa, supra, at 759-761.

The amended complaint or amendment to the complaint and a summons must be served on any defendants not previously served with a summons or who have been served but have not yet appeared in the manner provided for service of summons in civil actions [see CCP §§ 415.10-415.50]. A defendant who has already appeared in the action can be served by mail [see Bristol Convalescent Hosp. v. Stone (1968) 258 CA2d 848, 865].

As the default is void due to improper notice, the default entered June 19, 2018 is vacated.

The minute order is effective immediately.