DAVID SCHWAB et al., Plaintiffs and Appellants, v. RONDEL HOMES, INC., et al., Defendants and Respondents, 53 Cal. 3d 428

Opinion BROUSSARD,J. —This case presents the question of whether a plaintiff’s failure to serve notice of damages upon a defendant pursuant to Code of Civil Procedure sections 425.10 and 425.11 precludes the plaintiff from taking a default against the defendant. We conclude that a plaintiff may not take a default against a defendant without giving the defendant actual notice as required by statute. I. Facts Plaintiff Bill Allen is deaf and uses a signal dog. He and his roommate, plaintiff David Schwab, wished to rent an apartment in Lincoln Terrace, an apartment complex owned and managed by defendants.

Plaintiffs informed the complex manager that they had a signal dog, showed the manager a card certifying the dog as a signal dog, and gave the manager a book discussing the legal rights of persons owning signal dogs. The manager still refused to rent to plaintiffs because of the signal dog. On September 24, 1987, plaintiffs brought an action against defendants for housing discrimination under Civil Code

section 54.1, subdivision (b)(5), and sought damages under Civil Code

section 54.3. The prayer of the complaint requested damages for each plaintiff for mental and emotional distress and for “further monetary and pecuniary losses and damages” in amounts according to proof, treble statutory damages also in amounts according to proof “but in a sum no less than $250,” attorney fees, and punitive damages of $500,000. Defendants failed to respond to the complaint and a default was entered on December 24, 1987. Thereafter, at a prove-up hearing, the trial court awarded each plaintiff “the principal sum of $50,000,” punitive damages of $100,000, and modest attorney fees and costs.

In April 1988, the trial court granted defendants’ motion to set aside the default and default judgment, finding plaintiffs should have served a statement of damages upon defendants pursuant to

section 425.11. The Court of Appeal reversed the order setting aside the default, but limited the default judgment to $25,000 per plaintiff for general damages. The Court of Appeal otherwise affirmed the remainder of the judgment, including the punitive damages of $100,000 per plaintiff. II. Discussion The question before us is whether a default may be entered and judgment taken where the plaintiff has failed to serve notice of damages on the defendant pursuant to

section 425.11. The conclusion of the Court of Appeal is in conflict with both the statute and the preponderance of the case law, and is thus reversed.

Section 585 authorizes a court to enter default against a defendant that does not answer a complaint;

section 580, however, provides: “The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint.” Accordingly, until amendments in 1974, plaintiffs in all actions were required to state in their complaints the amount of damages claimed before they could obtain damages in a default judgment. In 1974 and again in 1979,

section 425.10 was amended to provide, in pertinent part: “A complaint or cross-complaint shall contain ... [a] demand for judgment for the relief to which the pleader is entitled. If the recovery of money or damages be demanded, the amount thereof shall be stated, unless the action is brought in the superior court to recover actual or punitive damages for personal injury or wrongful death, in which case the amount thereof shall not be stated.” (Italics added.) The purpose of the 1974 amendment to

section 425.10 was to “protect the defendants from adverse publicity resulting from inflated demands, particularly in medical malpractice cases.” (Jones v. Interstate Recovery Service (1984) 160 Cal.App.3d 925, 928 [206 Cal.Rptr. 924].) Simultaneously,

section 425.11 was added, requiring in pertinent part that plaintiffs in personal injury and wrongful death cases “give notice to the defendant of the amount of special and general damages sought to be recovered . . . before a default may be taken.” Plaintiffs initially claim that their complaint is not subject to

section 425.11 because their action is not for “personal injury or wrongful death” within the meaning of

section 425.10. Indeed, we have observed in another context that where an emotional distress claim is “incidental” to the cause of action, the cause of action will not be considered an action “to recover damages for personal injury.” (See Gourley v. State Farm Mut. Auto. Ins. Co., ante, 121, at p. 123 [279 Cal.Rptr. 307, 806 P.2d 1342] [prejudgment interest under

section 3291 not allowed in action for breach of the implied covenant of good faith and fair dealing].) However, plaintiffs’ own pleadings belie their assertion that mental or emotional distress does not, in fact, lie at the heart of their action: “Plaintiffs pray for judgment as follows: 1. Damages for mental and emotional distress in an amount as may be according to proof.” In the prove-up hearing, plaintiffs presented sufficient evidence to persuade the trial judge to award each plaintiff $50,000 in general damages. Thus, we find that plaintiffs’ action is an “action ... to recover actual or punitive damages for personal injury or wrongful death” under

section 425.10. Plaintiffs alternatively assert that, even if this case is a personal injury action for purposes of

section 425.10, they are still entitled to the default entered by the trial court. In several instances the Courts of Appeal have reviewed defaults awarded when no notice of damages was served upon the defaulting defendant. Those courts, in accordance with the general rule established by

section 580, have generally refused to approve or affirm default judgments in excess of the amount of damages for which the defendants had notice. The defendant is entitled to “ ‘one “last clear chance” to respond to the allegations of the complaint and to avoid the precise consequences . . . [of] a judgment for a substantial sum .... [without] any actual notice of . . . potential liability . . . .’ [Citations omitted.]” (Twine v. Compton Supermarket, supra, 179 Cal.App.3d at p. 517, quoting Stevenson v.

Turner, supra, 94 Cal.App.3d at p. 320.) Indeed, as “knowledge of the alleged amount of damages may be crucial to a defendant’s decision whether to permit a clerk’s default” (Hamm v. Elkin, supra, 196 Cal.App.3d at p. 1346), liability imposed upon a defaulting defendant without notice of the amount of damages claimed violates both sections 425.11 and 580. As a general rule, a default judgment is thus limited to the damages of which the defendants had notice. Yet plaintiffs argue, relying upon Morgan v. Southern Cal.

Rapid Transit Dist., supra, 192 Cal.App.3d 976 (hereafter Morgan), that because this action has been brought in superior court, defendants are on notice that plaintiffs claim at least the jurisdictional minimum in damages. We do not agree. We determined in Greenup v.

Rodman (1986) 42 Cal.3d 822 [231 Cal.Rptr. 220, 726 P.2d 1295] (hereafter Greenup) that a plaintiff’s complaint claiming general damages “in an amount that exceeds the jurisdictional requirements of this court” provided the defendant notice that the plaintiff was seeking general damages of at least $15,000—the jurisdictional minimum of the court in which she appeared. (Id. at p. 830.) Morgan, supra, 192 Cal.App.3d 976, extended Greenup's holding in a case where it found inadequate notice of damages to the defendant, interpreting Greenup to hold that “the usual remedy [for the failure to give notice of damages] would be to reduce the default judgment to the amount demanded in the complaint or, if no amount is demanded, to the minimum jurisdiction of the superior court.'' (Id. at p. 987, italics added.) The court in Morgan, supra, 192 Cal.App.3d 976, interpreted Greenup too broadly.

While we did award the plaintiff the jurisdictional minimum in general damages in Greenup, the facts in that case differed substantially from the facts before the court in Morgan and the facts before us today. Indeed, for its rationale Greenup cited and relied in large part on Engebretson & Co. v.

Harrison (1981) 125 Cal.App.3d 436 [178 Cal.Rptr. 77], a case that held that a plaintiff’s prayer for damages “in excess of $5,000” entitled that plaintiff to a default judgment of $5,000, but no more. (Id. at pp. 444-445.) In Greenup, the plaintiff pleaded general damages, specifically stated to be in excess of the court’s jurisdictional requirements.

Based on such notice, we held that the defendant knew, or should have known, that the plaintiff was claiming at least $15,000 in general damages. (Greenup, supra, 42 Cal.3d at p. 830.) Morgan interpreted Greenup to hold that all defendants should be presumed to be on notice of the plaintiffs’ claim for general damages of at least the jurisdictional minimum regardless of the form of complaint. The case before us, however, shows the flaw in this reasoning: plaintiffs’ claim for $500,000 per plaintiff in punitive damages in itself properly put this case before the superior court. (See Hoban v.

Ryan (1900) 130 Cal. 96 [62 P. 296]; 2 Witkin, Cal. Procedure (3d ed. 1985) Jurisdiction, § 20, p. 387.) Because plaintiffs’ claim for punitive damages had already established the superior court’s jurisdiction, neither a layperson nor an experienced attorney could be presumed to know the amount of general damages plaintiffs were seeking in this case. The theory that all defendants have constructive notice that the plaintiffs claim at least the jurisdictional minimum in damages unravels on examination of

section 425.11. That

section requires not only that the plaintiffs give notice of damages, but specifically of “the amount of special and general damages sought to be recovered.” Even if we were to presume that a layperson is aware of the jurisdictional minimum in superior court, no person could know the amount of general damages sought in this case. Accordingly, we disapprove Morgan, supra, 192 Cal.App.3d 976, to the extent that it suggests that a default judgment may be entered in the absence of notice in the complaint or a “statement of damages” of the special and general damages sought.

In contrast to Morgan, several Courts of Appeal have not presumed notice of a minimum jurisdictional amount in determining whether the notice requirement of

section 425.11 has been fulfilled. In Petty v. Manpower, Inc., supra, 94 Cal.App.3d 794, the Court of Appeal reversed a default judgment in the absence of notice to the defendant of the amount of damages sought. Similarly, in Hamm v. Elkin, supra, 196 Cal.App.3d 1343, the Court of Appeal refused to uphold a default where a statement of damages was not served upon the defendant until after the default was entered. And in Plotitsa v.

Superior Court, supra, 140 Cal.App.3d 755, the Court of Appeal vacated a default where notice of damages claimed had been sent only one day before default was entered against the defendant. (See also Twine v. Compton Supermarket, supra, 179 Cal.App.3d 514.) We agree with these decisions’

interpretation of the statute. “ ‘ “[Significance should be given to every word, phrase, sentence and part of

an act in pursuance of the legislative purpose.” ’ ” (J. R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 36 [160 Cal.Rptr. 710, 603 P.2d 1306].) In

section 425.11, the use of the word “notice” and the terms of art “special and general damages” implies that the Legislature intended that a defendant be given actual notice of the special and general damages claimed by the plaintiff. This holding is consistent with our holding in Greenup.

In that case, we recognized that sections 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.” (Greenup, supra, 42 Cal.3d at p. 826.) We also noted that “the allegations of a complaint may cure a defective prayer for damages.” (Id. at p. 829.) Thus, even though the plaintiff in Greenup did not follow the procedure required by sections 425.10 and 425.11, we held that the plaintiff’s prayer in the complaint for general damages “in an amount that exceeds the jurisdictional requirements” of the superior court provided sufficient notice to that defendant of the amount of damages claimed. (Id. at p. 830.) In this case, the fact that defendants had notice of plaintiffs’ prayer for statutory damages in an amount according to proof but “no less than $250” and punitive damages in the amount of $500,000 is not sufficient to meet the requirements of

section 425.11. Neither statutory nor punitive damages fulfills the mandate of

section 425.11, which requires specific notice of “the amount of special and general damages sought to be recovered . . . .” (Italics added.) Accordingly, we decline to hold that notice of statutory or punitive damages provides “notice” of special and general damages claimed as required by

section 425.11. We cannot allow 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. The trial court in this case properly vacated the default entered against defendants. III. Disposition The judgment of the Court of Appeal is reversed. Lucas, C. J., Panelli, J., Kennard, J., Arabian, J., and Baxter, J., concurred.

All further statutory references are to the Code of Civil Procedure unless otherwise indicated. In light of our conclusion that the trial court order setting aside the default judgment should be afirmed because of the inadequacy of the notice of damages, we have no occasion to pass on defendants’ additional objections to the judgment. As originally passed,

section 425.10 read simply: “A complaint or cross-complaint shall contain both of the following: [1J] (

a) A statement of facts constituting the cause of action, in ordinary and concise language. [1|] (

b) A demand for judgment for the relief to which the pleader claims he is entitled. If the recovery of money or damages be demanded, the amount thereof shall be stated . . . .” (Italics added.)

Section 425.11 reads: “When a complaint or cross-complaint is filed in an action in the superior court to recover damages for personal injury or wrongful death, the party against whom the action is brought may at any time request a statement setting forth the nature and amount of damages sought. The request shall be served upon the plaintiff or cross-complainant, who shall serve a responsive statement as to the damages within 15 days thereafter.

In the event that a response is not served, the party, on notice to the plaintiff or cross-complainant, may petition the court in which the action is pending to order the plaintiff or cross-complainant to serve a responsive statement. “If no request is made for such a statement setting forth the nature and amount of damages being sought, the plaintiff shall give notice to the defendant of the amount of special and general damages sought to be recovered (1) before a default may be taken; or (2) in the event an answer is filed, at least 60 days prior to the date set for trial.” See, e.g., Hamm v.

Elkin (1987) 196 Cal.App.3d 1343 [242 Cal.Rptr. 545]; Morgan v. Southern Cal Rapid Transit Dist. (1987) 192 Cal.App.3d 976 [237 Cal.Rptr. 756]; Twine v. Compton Supermarket (1986) 179 Cal.App.3d 514 [224 Cal.Rptr. 562]; Plotitsa v. Superior Court (1983) 140 Cal.App.3d 755 [189 Cal.Rptr. 769]; Petty v. Manpower, Inc. (1979) 94 Cal.App.3d 794 [156 Cal.Rptr. 622]; Stevenson v. Turner (1979) 94 Cal.App.3d 315 [156 Cal.Rptr. 499]; and Uva v. Evans (1978) 83 Cal.App.3d 356 [147 Cal.Rptr. 795]. None of these cases attempt to interpret or cite Greenup, supra, 42 Cal.3d 822.

However, all these cases require actual notice of damages claimed and thus implicitly reject the Morgan

interpretation of Greenup’s holding. Where the defendant has been given actual notice, though no document entitled “statement of damages” has been served upon the defendant, the Courts of Appeal have sometimes sustained an entry of default. Thus, in Uva v. Evans, supra, 83 Cal.App.3d 356, a default was entered against the defendant when damages were stated in the complaint (contrary to the provisions of § 425.10).