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MARTIN v. TONY AND SUSAN ALAMO FOUNDATION

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Court of Appeal, Second District, Division 7, California.

Donald E. MARTIN, Plaintiff and Respondent, v. TONY AND SUSAN ALAMO FOUNDATION, a nonprofit corporation, Defendant and Appellant.

B002767.

Decided: April 15, 1985

Gittler & Wexler, and Gregg J. Gittler, Los Angeles, for defendant and appellant. Lewis, D'Amato, Brisbois & Bisgaard, Jeffrey A. Tidus and Terry Wilson, Los Angeles, for plaintiff and respondent.

Defendant, Tony and Susan Alamo Foundation, appeals from a default judgment in favor of plaintiff, Donald E. Martin, in the total amount of $462,474.77, following the denial of its motion to set aside the default judgment.   We reverse the judgment with directions.

The principal issues on appeal are:  (1) whether the court abused its discretion in denying defendant's motion for relief from default in responding to request for admissions and the order granting motion for summary adjudication of issues based upon facts deemed admitted;  (2) whether the court acted in excess of jurisdiction in authorizing the plaintiff to bring an ex parte application for an order striking the answer of defendant to the plaintiff's complaint and entering a default in the event Tony Alamo failed to appear at a court-ordered deposition;  and (3) whether the judgment is void because the trial court acted in excess of jurisdiction by awarding an amount in damages to plaintiff greater than that demanded in the prayer of the complaint.

Because this is an unreported opinion and the parties are familiar with the facts, we will dispense with their recitation.   To the extent they are relevant to our opinion, certain facts are set forth below.

DISCUSSION

IJUDICIAL ACTS IN EXCESS OF JURISDICTION

The action in this case was grounded on two causes of action against the defendant.   The first cause of action was for breach of contract.   The second cause of action was for intentional inducement of breach of contract.   The prayer of the complaint at issue sought general damages in the sum of $100,000.00, special and incidental damages with respect to costs of interest and rents according to proof, costs of suit, and such other relief as the Court deems just and proper.

A. The Conditional Order of April 20, 1983 Was In Excess of the Court's Jurisdiction

 On April 20, 1983, at the hearing on plaintiff's motion to compel either the default of defendant or the deposition of Tony Alamo, the trial court ordered all depositions to be reset by plaintiff at a time, date, and place of plaintiff's own choosing.   The court also ordered that, in the event Tony Alamo failed to appear for his deposition as renoticed, the answer of defendant should be stricken and its default entered upon an ex parte application by plaintiff, with such application being permitted without notice to the defendant.

Recently, in Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 6, 207 Cal.Rptr. 233, which involved a conditional order similar to the one in the instant case, we held that the court's authorization of an ex parte application for sanctions in the event of disobedience of a discovery order was in excess of the court's jurisdiction, because Code of Civil Procedure section 2034, subdivision (d), requires written notice of such motion at least 15 days in advance of the hearing.  (See Rodman v. Superior Court (1939) 13 Cal.2d 262, 269, 89 P.2d 109;  O'Brien v. Cseh (1983) 148 Cal.App.3d 957, 961, 196 Cal.Rptr. 409.)   Thus, we hold, as we did in Alliance Bank (161 Cal.App.3d at p. 6, 207 Cal.Rptr. 233), that the court order conditionally authorizing plaintiff to bring an ex parte application without notice to defendant is expressly violative of the statutory notice and motion requirements of Code of Civil Procedure section 2034, subdivision (d), and of the constitutional due process notice requirement of the federal and state Constitutions and therefore invalid for being in excess of the court's jurisdiction.  (See Duggan v. Moss (1979) 98 Cal.App.3d 735, 741–743, 159 Cal.Rptr. 425.)

B. Order Striking Answer and Entering Default of Defendant Is In Excess of Court's Jurisdiction

 The record shows that Tony Alamo failed to attend his renoticed deposition, which was set on May 2, 1983.

Thereafter, on the morning of May 3, 1983, plaintiff delivered to the office of defendant's attorney a letter notice of plaintiff's ex parte application to be heard on that date at 2:00 p.m., for an order striking the answer and entering the default of defendant pursuant to the court order of April 20, 1983.   Plaintiff's counsel also gave telephonic notice to defense counsel's secretary of the date, time, and place of the ex parte application, shortly after the noon hour.   Plaintiff's ex parte application was heard and granted by the trial court, striking the answer and entering the default of defendant.   Defendant did not appear at the hearing on the application.

The trial court erred in striking the answer and entering the default of defendant as the notice of plaintiff's ex parte application was inadequate under Code of Civil Procedure section 2034.  “Written notice of such motion is required to be served at least 15 days in advance of the hearing (Code Civ.Proc., §§ 1005, 1010) in order that the court will be fully apprised of the events occurring subsequent to the order compelling discovery.”  (Jones v. Otero (1984) 156 Cal.App.3d 754, 757, 203 Cal.Rptr. 90.)   Moreover, with respect to ex parte orders, the local rules for the Los Angeles Superior Court provide “[a]pplications for orders may be ex parte unless statute or rule requires notice.”  (L.A.Super.Ct. Manual of Ex Parte and Related Matters (1982) § 420, p. 6.)

Furthermore, unlike Alliance, where we held that the appellant's appearance at the hearing and opposition to the motion on its merits constituted a waiver of the defective notice of motion (161 Cal.App.3d at p. 7, 207 Cal.Rptr. 233), the defendant here did not appear and participate in the hearing on the ex parte application.   Thus we hold that the court order striking the answer and entering the default of defendant is invalid because the order was in excess of the court's jurisdiction.

C. The Default Judgment Was In Excess of the Court's Jurisdiction.

 On June 10, 1983, the trial court awarded judgment in favor of plaintiff.   Thereafter, the judgment in the total sum of $462,474.77 in favor of plaintiff was signed and entered, consisting of $232,000 for compensatory damages, $100,000 for punitive damages, $122,992.97 for pre-judgment interest, and $7,481.80 for costs.

 Code of Civil Procedure section 580 provides that if there is no answer the relief granted to the plaintiff “cannot exceed that which he shall have demanded in his complaint․”  Moreover, this section applies even where an answer to the complaint is filed, but is subsequently stricken by the court.  (Lattimer v. Ryan (1862) 20 Cal. 628, 633.)   Thus, a default judgment, which exceeds the demand of the prayer of the complaint, is given in excess of the court's jurisdiction.  (Gudarov v. Hadjieff (1952) 38 Cal.2d 412, 415–416, 240 P.2d 621.)

However, in an action for personal injury or wrongful death, the plaintiff is prohibited from stating the amount of damages sought either in the body of the complaint or its prayer.  (Code Civ.Proc., § 425.10.)   Instead, the plaintiff must give notice to the defendant of the amount sought in a statement of damages before a default may be taken.  (Code Civ.Proc., § 425.11;  Plotitsa v. Superior Court (1983) 140 Cal.App.3d 755, 761–762, 189 Cal.Rptr. 769.)   Hence a default judgment entered without giving such notice to defendant is void.  (Stevenson v. Turner (1979) 94 Cal.App.3d 315, 319, 156 Cal.Rptr. 499.)

Here, the record discloses that after the defendant's default was entered on May 3, 1983, the plaintiff served defense counsel by mail with a statement of damages pursuant to Code of Civil Procedure section 425.11, even though neither cause of action in the complaint involved personal injury or wrongful death.   It is apparent from this statement of damages that plaintiff sought not only to give notice of the damages sought but also to improperly expand the basis on which damages could be awarded.   In any event, this statement of damages is ineffective because it was not personally served on defendant as required by section 425.11.

It is clear from the record in this case that the default judgment was in excess of the demand, and thus violated the mandatory language of section 580.   Hence, we hold that the default judgment exceeded the court's jurisdiction.  (Burtnett v. King (1949) 33 Cal.2d 805, 807, 205 P.2d 657.)

II

ABUSE OF DISCRETION

On May 19, 1982, plaintiff mailed a request for admissions to defendant's attorney, Joan Celia Lavine.   The request concerned the ultimate issues in the case.   When the request was not responded to within the requisite 30 days, plaintiff on July 2, 1982 mailed a certified letter, return receipt requested, to Lavine, notifying defendant that the facts alleged in the request for admissions were deemed admitted.   The certified letter was never received by Lavine, and was subsequently returned to plaintiff's attorney marked “unclaimed.”

Thereafter, on August 12, 1982, plaintiff filed a noticed motion for summary adjudication of issues, based upon the facts deemed admitted.

On August 24, 1982, defendant substituted Willy Rosenblatt as its attorney in place of Lavine.   On August 27, 1982, defendant's new attorney filed a motion for relief under Code of Civil Procedure section 473 from default in responding to the request for admissions, together with defendant's responses to the request for admission and a declaration by Lavine.   In her declaration, Lavine alleged that from April 20, 1982, she spent most her time with her father who was hospitalized in critical condition in Good Samaritan hospital, and that she had in effect abandoned her practice.   In his opposition to defendant's 473 motion, plaintiff's attorneys conceded that Lavine had abandoned her practice and thereby ceased to receive or pick up her mail.

On September 3, 1982, the trial court heard both motions.   The trial court granted plaintiff's motion for summary adjudication of issues, and denied defendant's 473 motion, without prejudice, on the ground Lavine's declaration was not executed in accordance with the requirements of Code of Civil Procedure section 2015.5.

On September 22, 1982, defendant filed a 473 motion for relief from default in responding to the request for admissions and the order granting summary adjudication of issues, together with the declarations of Rosenblatt and Lavine.   In her declaration, Lavine made similar allegations showing the abandonment of her practice, which was again conceded by plaintiff's attorneys in their opposition to the motion.   On January 4, 1983, the trial court denied the motion.

 Once a party is served with notice of default under Code of Civil Procedure section 2033, he or she has only 30 days to file a motion for relief under Code of Civil Procedure section 473.  (Billings v. Edwards (1981) 120 Cal.App.3d 238, 243, 174 Cal.Rptr. 722.)   However, this 30-day limitation does not apply where the party seeks relief from default under the equity power of the court to grant relief in cases of extrinsic fraud or mistake.  (Id., at p. 245, 174 Cal.Rptr. 722.)   Also, even though a party seeking relief from default bases his motion solely on section 473 of the Code of Civil Procedure, the court has power to treat the motion as one for equitable relief.  (Davis v. Thayer (1980) 113 Cal.App.3d 892, 910, 170 Cal.Rptr. 328.)

 The inexcusable neglect of an attorney is usually not a proper basis for granting the client's motion under section 473.  (Buckert v. Briggs (1971) 15 Cal.App.3d 296, 301, 93 Cal.Rptr. 61.)   The client must seek relief through a malpractice action against the negligent attorney.  (See Martin v. Cook (1977) 68 Cal.App.3d 799, 809, 137 Cal.Rptr. 434.)   However, the courts have developed an exception for situations where the attorney's neglect is so extreme that it operates to “impair or destroy the client's cause of action or defense.”  (Orange Empire Nat. Bank v. Kirk (1968) 259 Cal.App.2d 347, 353, 66 Cal.Rptr. 240;  Daley v. County of Butte (1964) 227 Cal.App.2d 380, 391, 38 Cal.Rptr. 693.)

 Here, we conclude from the record that Lavine had abandoned the representation of defendant during the period of time when plaintiff served defendant's counsel with request for admissions.   Such abandonment, which was conceded by plaintiff's attorneys, operated to destroy defendant's defense to plaintiff's action.   Moreover, defendant had no knowledge of plaintiff's request for admissions.   Under these circumstances, we find that defendant's failure to respond in a timely manner to plaintiff's request for admissions was the “product of extrinsic surprise and mistake without negligence on [its] part.”  (Buckert v. Briggs, supra, 15 Cal.App.3d at p. 302, 93 Cal.Rptr. 61.)   Accordingly, we hold that the trial court abused its discretion in denying defendant's motion for relief from default in responding to plaintiff's request for admissions and the order granting plaintiff's motion for summary adjudication of issues.

CONCLUSION

The judgment is reversed.   The trial court is directed to vacate that part of the court order of April 20, 1983, allowing the plaintiff to present an ex parte application for sanctions.   The trial court is also directed to vacate the order of May 3, 1983, striking the answer and entering the default of defendant, and to deny plaintiff's ex parte application for the same.   The trial court is further directed to vacate its order of January 4, 1983, denying the motion of defendant for relief from default in responding to plaintiff's request for admissions and the order granting plaintiff's motion for summary adjudication of issues, and to issue an order granting the motion.   Each party shall bear its own costs on appeal.

On April 15, 1985, this court filed herein its opinion.   Upon further consideration, we determine that this opinion meets the standard for publication specified in rule 976(b)(3), California Rules of Court, and order that said opinion be published in the Official Reports.

On April 30, 1985, respondent filed with this court his petition for rehearing.   That petition contains, inter alia, the following language:  “The argument that plaintiff's counsel somehow ‘admitted’ such abandonment is not supported by anything in the appellate record.   Instead, this Court's decision takes the easy way out without regard for Ms. Lavine's declaration outlining the steps which she took to keep her practice extant.   Since the abandonment issue was never raised in the trial court, this Court's intellectually dishonest, result-oriented decision totally ignores the relevant facts, issues and controlling legal principles.”  (Italics added.)

We recognize that “[a]n attorney has the duty to protect the interests of his client.   He has a right to press legitimate argument and to protest an erroneous ruling.”  (Gallagher v. Municipal Court (1948) 31 Cal.2d 784, 796, 192 P.2d 905.)   We also recognize that “[j]udges are supposed to be men [and women] of fortitude, able to thrive in a hardy climate.”  (Craig v. Harney (1947) 331 U.S. 367, 376, 67 S.Ct. 1249, 1255, 91 L.Ed. 1546.)   However, we think it is manifest that the above italicized language of respondent's counsel constitutes an attack on the integrity of the court.  (In re Buckley (1973) 10 Cal.3d 237, 250, 110 Cal.Rptr. 121, 514 P.2d 1201.)

In Buckley, where an attorney said, “ ‘[t]his Court obviously doesn't want to apply the law,’ ” our Supreme Court stated:  “In our view the statement goes beyond one reflecting a mere mental outlook or predilection and makes a charge of deliberate judicial dishonesty.   We are of the opinion that the record does not support such an accusation against the judge and that the statement was insolent, offensive, insulting, and impunged the integrity of the court.   We conclude that the statement was contemptuous on its face.”  (10 Cal.3d at p. 250, 110 Cal.Rptr. 121, 514 P.2d 1201;  footnotes omitted and italics added.)   We deem the statement here even more egregious.

We therefore conclude, as did the court in Ruby v. Superior Court (1951) 104 Cal.App.2d 175, 177, 230 P.2d 860, 231 P.2d 868, that to allow this document to be filed would expose the respondent and his attorneys to a charge of contempt of the appellate court.

Accordingly, the clerk of this court is ordered to strike the filing of respondent's petition for rehearing.

FOOTNOTES

FOOTNOTE.  

THOMPSON, Associate Justice.

LILLIE, P.J., and JOHNSON, J., concur.

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