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Court of Appeal, Fourth District, Division 1, California.

STATION WEST, Plaintiff and Respondent, v. Daniel C. BUNN, et al., Defendants and Appellants.

Civ. 28092.

Decided: August 26, 1983

Stephen P. McDonald and McDonald & Allen, San Diego, for defendants and appellants. Michael M. Hogan and Gray, Cary, Ames & Frye, San Diego, for plaintiff and respondent.

Daniel C. Bunn appeals a grant of an application for writ of execution to levy on real property.   He challenges the writ upon the ground the underlying default judgment is void.


Station West leased commercial premises to Bunn.   When Bunn defaulted on the rent, Station West filed a complaint for recovery of unpaid rent and for recovery on guaranty.   Named as defendants were “Daniel C. Bunn” and several others.   Attached to the complaint and incorporated by reference were various lease documents.   In the lease documents, beneath some of the signature lines, was typed the name “Daniel C. Bunn.”   The signature reads “Daniel Bunn.”   The rental on the premises was on the basis of a specified minimum monthly rental ($2,416.67 monthly for first five years) in addition to which a certain percentage was payable on a gross sales basis (five percent of gross monthly sales in excess of $48,333.)   The prayer of the complaint asked for damages in the amount of $7,250.01 for minimum monthly past due rent (the sum of the fixed rental plus percentage paid for last month of occupancy) plus interest of 10 percent plus damages in an amount to be ascertained from the termination of the lease until the end of the lease term, $414.80 for unpaid common area costs, $1,033.75 for past due property taxes, other rent and damages according to proof, reasonable attorney fees, costs and further relief as the court deemed proper.

Judgment for default was entered on April 28, 1981, for $25,482.91 ($21,974.48 for past due rents and other lease obligations, $2,715.50 in attorney fees, $556.08 in interest and $236.85 in costs).   On Station West's motion the original judgment was vacated and a second judgment for default was entered on June 23, 1981, for $80,400.50 to reflect Station West's recovery for all rents and losses incurred after termination of the lease and before reletting the premises.   Station West claims entitlement to these sums under Civil Code section 1951.2, subdivisions (a)(1), (a)(2), and (a)(3).

A motion to set aside the default was filed by Bunn's codefendants in December 1982.   Bunn deliberately chose not to join in this motion.   On January 18, 1982, the motion was denied.   The lease in question was executed September 1, 1978.   Bunn took the lease as assignee as of October 25, 1979.   The lease terms were for 20 years.   Bunn abandoned the premises on November 7, 1980, and failed to pay the rent or perform any other lease obligations thereafter.   During this time, Bunn kept in touch with Station West, acknowledging notices sent to him by them and asking to be informed about the reletting of the premises.

On January 29, 1982, Station West filed an application for a writ of execution against a dwelling owned by “Daniel C. Bunn” in Rancho Santa Fe.   In opposition, Bunn filed a two-page declaration stating that he was not “Daniel C. Bunn,” but rather, “Daniel Bunn” or “Daniel Wayne Bunn” and that the property was in the name of “Daniel Bunn” not “Daniel C. Bunn.”   After oral argument, the trial court concluded “Daniel C. Bunn” and “Daniel Bunn” were one and the same person and granted Station West's application for a writ of execution.   Subsequently, Station West sought by motion to correct the misnomer by deleting the middle initial of “Daniel C. Bunn.”   After a hearing, the court granted the motion.

Bunn appeals from the order granting Station West's application for a writ of execution.   He contends the writ and underlying default judgment are void because they refer to “Daniel C. Bunn,” not “Daniel Bunn,” and the court was without jurisdiction to correct the mistake more than six months after the judgment.   He also contends the default judgment is void because it exceeds the relief prayed for in the complaint.



 A court which has jurisdiction over the person and the subject of the action necessarily possesses the power to correct a misnomer and to make its judgment reflect the defendant's true name.  (Mirabito v. San Francisco Dairy Co., 8 Cal.App.2d 54, 60, 47 P.2d 530;  Thomson v. L.C. Roney & Co., 112 Cal.App.2d 420, 427, 246 P.2d 1017.)

 An insubstantial error in a defendant's name in the pleadings and judgment is not a valid defense to an execution of a default judgment.   (Brum v. Ivins, 154 Cal. 17, 96 P. 876.)   In Brum, Manuel S. Brum was sued on a promissory note and was personally served under the name “Manuel S. de Brum”.   He made no appearance and allowed a default judgment to be entered against him.   When the sheriff sought to levy execution upon his real property, Brum sued to enjoin the execution because of misnomer.   He claimed that execution against his property was improper because his name was “Manuel S. Brum” not “Manuel S. de Brum.”   The Supreme Court rejected his argument on the ground that a judgment is binding upon the party served and that the party served must come in and set up the misnomer as a defense or else be bound by the judgment.  (Id., at pp. 19–20, 96 P. 876.)

Here there was no doubt that Bunn was the party served and that Daniel C. Bunn and Daniel Bunn are one and the same person.   Bunn did not set up the misnomer as a defense to the judgment.

Nor does Bunn's authority, Goatman v. Fuller, 191 Cal. 245, 216 P. 35, support his position that a misnomer must be corrected within six months after the entry of default as required by Code of Civil Procedure section 473.   In Goatman, plaintiffs' complaint to recover a lease and possession of the underlying property incorporated a copy of the lease containing the wrong description of the real property.   Plaintiffs sought to amend the judgment by substituting the correct description.   Initially, the Supreme Court noted:

“The only evidence tending to show there is any irregularity in the record appears aliunde [1] in the affidavits of the respective parties.   Under the authorities cited above, the court has no power in such a situation to amend the judgment upon its own motion or upon motion of a party, for more than six months had elapsed after the judgment was entered before steps were taken to amend it.”  (Id., at p. 250, 216 P. 35.)

However, the Supreme Court went on to hold that the error did not prejudice the parties as the lease and property were sufficiently described elsewhere and because to reverse would mean that there would be an action in equity which would eventually reach the same result.

 In the instant case, not only did the misnomer not prejudice Bunn since it did not prevent him from receiving notice nor deceive him into believing the action did not apply to him, but the misnomer is not “aliunde ” but rather appears on the face of the record.   In several of the lease documents Bunn is referred to by both names.   Exhibits show he signed signature lines labeled “Daniel C. Bunn.”   Significantly, Bunn directed notices be sent to him addressed to “Daniel C. Bunn” and such notices were sent to him.   Therefore, even under Bunn's own authority, Station West was not time barred.

Finally, it would not serve any public policy to allow Bunn to escape the execution of the judgment because of a mere technicality.   To hold otherwise would be to take a step backwards to the old days of formalized, rigid pleading requirements.   This we decline to do.  (See Menefee v. Oxnam, 42 Cal.App. 81, 96, 183 P. 379.)


Bunn next contends the default judgment was void because the award exceeds the amount specified in the prayer.

Code of Civil Procedure section 580 provides:  “The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint ․”  The policy underlying section 580 is to ensure the defendant is given adequate notice of what judgment may be taken against him.  (Burtnett v. King, 33 Cal.2d 805, 808, 205 P.2d 657.)   It has been held:  “A judgment by default in excess of the amount of the relief demanded by the prayer denies the defaulting defendant a fair hearing and is an act in excess of jurisdiction.”  (Petty v. Manpower, Inc., 94 Cal.App.3d 794, 798, 156 Cal.Rptr. 622.)

 However, the specific monetary amount need not be in the prayer itself so long as the type of relief is in the prayer and the amount is alleged elsewhere in the complaint.  (Becker v. S.P.V. Construction Co., 27 Cal.3d 489, 494, 165 Cal.Rptr. 825, 612 P.2d 915;  see also Thorson v. Western Development Corp., 251 Cal.App.2d 206, 59 Cal.Rptr. 299.   In Thorson the prayer sought “damages according to proof” but the body of the complaint stated damages were $10,000.   The appellate court held sufficient notice was given.   In Securities Co. v. van Loben Sels, 13 Cal.App.2d 265, 56 P.2d 1247, the prayer sought only possession of real property.   Since the prayer asked for specific performance and a trust document was attached, the court also awarded income from the property.

Bunn relies on Becker v. S.P.V. Construction Co., supra, 27 Cal.3d 489, 165 Cal.Rptr. 825, 612 P.2d 915, to support his claim that all of the judgment over $8,698.56 (the only monetary amount specified in the prayer itself) is void.   In Becker, the trial court awarded $26,457.50 for compensatory damages and $2,500 for attorney fees based upon a prayer which sought compensatory damages “in excess of $20,000 ․ or according to proof” for breach of a contract to construct a residence, fraud, and negligent misrepresentation.   The Supreme Court remanded the case to the trial court with directions to strike the damages over $20,000 and attorney fees since the amount awarded exceeded the compensatory damages specified and no attorney fees were sought.   The court reasoned that the notice requirement of section 580

“would be undermined if the door were opened to speculation, no matter how reasonable it might appear in a particular case, that a prayer for damages according to proof provided adequate notice of a defaulting defendant's potential liability․  Consequently, a prayer for damages according to proof passes muster under section 580 only if a specific amount of damages is alleged in the body of the complaint.”  (Id., at p. 494, 165 Cal.Rptr. 825, 612 P.2d 915.)

 Becker is distinguishable.   First, there was no reference anywhere else in the Becker complaint to monetary sums or contract provisions which would give notice to the defendant of the amount sought.   The lease specifically setting forth Bunn's monetary obligations was attached to and incorporated by reference into the complaint as well as recited in haec verba.   Such contract provisions can and do provide adequate notice.   In Becker the court specifically noted Richee v. Gillette Realty Co., 97 Cal.App. 365, 275 P. 477, was consistent with their position.  Richee awarded attorney fees in a default judgment on the basis of a provision for reasonable attorney fees in the contract attached to the complaint even though no amount was specified in the prayer.   The Becker court noted:  “Since the defendant had agreed to abide by the discretion of the court in this matter, the court held it could not be heard to complain that the complaint lacked specificity.”  (Becker v. S.P.V. Construction Co., supra, 27 Cal.3d at p. 494, fn. 2, 165 Cal.Rptr. 825, 612 P.2d 915.)   Here, Bunn was notified in the prayer that damages would be sought in an amount to be ascertained from the date of termination of the lease.

This prayer sought with all the specificity it was capable the exact measure of damages authorized by Civil Code section 1951.2, subdivisions (a), (b) and (c).   Absent a specific provision in the lease to the contrary, a tenant's breach of the lease and abandonment of the property operates to terminate the lease.  (Civ.Code, § 1951.2, subd. (a).)  Upon such termination, the landlord may recover from the lessee the unpaid rent earned to the time of termination, with interest, plus the excess of the amount of rent that would have been earned from the date of termination to the date of the award in excess of the rent loss that the tenant proves could reasonably have been avoided by the landlord (Civ.Code, § 1951.2, subd. (a)(2)), and any other amount necessary to compensate the landlord for the detriment proximately caused him by the tenant's failure to perform or which in the ordinary course of events would be likely to result from his breach.

This statute engrafts the contract remedy of loss of bargain into the law of real property.   It abrogates the common law rule that the lessee's obligation to pay rent depends upon the continued existence of the lease term.   It encourages the lessor to mitigate damages.   It discounts unpaid future rent to present value.  (Sanders Construction Co. v. San Joaquin First Fed. Sav. & Loan Assn., 136 Cal.App.3d 387, 399, 186 Cal.Rptr. 218.)   This is not a case where no specific amount of damages was requested.   Bunn was notified that damages would be assessed at time of entry of judgment.   That amount was capable of calculation, ascertainable by referring to the precise language of the pleading spelling out Bunn's obligations under the lease.   Thus the prayer was as precise as possible in light of the nature of the breach and resultant damages authorized by law.

Unlike Becker, damages here could not be precisely computed at the time the complaint was filed since damages for further rents continue to accrue until a new tenant is secured.  (Civ.Code, § 1951.2.)   Under the circumstances, the best the plaintiff could do was to specify the type of relief sought, the total amount due at the time the complaint was filed and specify how future damages would accrue.   This was done here.   The pleadings and prayer gave adequate notice to Bunn.   These are not the kind of speculative damages rejected in Becker.

Assuming arguendo the prayer and pleadings were not sufficiently specific, the default judgment should not be set aside if Bunn had actual knowledge of the relief sought.  (Barquis v. Merchants Collection Assn., 7 Cal.3d 94, 120, fn. 25, 101 Cal.Rptr. 745, 496 P.2d 817.)   Since the primary purpose of Code of Civil Procedure section 580 is to ensure adequate notice to a defendant of the demands made upon him, that policy will be met if the defendant has actual knowledge of the damages.   Bunn had such knowledge here by the exact specification of damages sought contained in the request to enter the default.  (See Petty v. Manpower, Inc., supra, 94 Cal.App.3d 794, at p. 798, 156 Cal.Rptr. 622.)

Finally, this court is not privy to the evidentiary basis adduced at the hearing for default judgment.   The burden is on Bunn to establish the lack of an evidentiary basis for the $80,400.50 judgment awarded in response to the prayer and pleading and incorrect exhibits and damages authorized by Civil Code section 1951.2, subdivisions (a), (b) and (c).   He has totally failed to show error in the assessment of damages.

The judgment is affirmed.


1.   Aliunde means “From another source;  from elsewhere;  from outside.”  (Black's Law Dict. (5th ed. 1979) p. 68.)

STANIFORTH, Associate Justice.

COLOGNE, Acting P.J., and WORK, J., concur.

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