GREENUP v. RODMAN

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Court of Appeal, Second District, Division 4, California.

Eileen GREENUP, Plaintiff and Respondent, v. Dale W. RODMAN and Rodman Aviation, Defendants and Appellants.

Civ. B005745.

Decided: May 24, 1985

Maureen Doyle, Los Angeles, Horvitz & Levy, Ellis J. Horvitz, and S. Thomas Todd, Encino, for defendants and appellants. Moore & Myers, Loring Myers and John C. Moore, Manhattan Beach, for plaintiff and respondent.

We are called upon to decide whether a judgment taken against a defendant after the answer is struck and a default is entered as a discovery sanction is limited to the amount stated on the face of the complaint, as if it were a default judgment upon the defendant's failure to answer, or whether judgment may be entered in this situation according to proof at the time of the prove-up hearing, upon a prayer for damages according to proof and for such further relief as the court deems just.   We have decided that judgment may be entered according to proof, without restriction to the amount stated in the complaint.

FACTS

On August 22, 1980, Eileen Greenup (Greenup) filed a complaint against Dale W. Rodman (Rodman) personally, and as majority shareholder of Rodair, Inc., (Rodair) and as sole shareholder of Rodman Aviation, Inc., and against Rodman Aviation, Inc. (Rodman Aviation).   Greenup alleged that:  Rodman had owned an 80 percent interest in Rodair, a now dissolved corporation;  Rodman, as majority shareholder, owed a fiduciary duty to Greenup, who was a 20 percent owner and minority shareholder of Rodair, not to convert the corporate assets;  and Rodman converted the assets of Rodair for his own use in his solely owned corporation, Rodman Aviation, without compensating Rodair or Greenup, then caused Rodair to be dissolved, without distributing any assets to Greenup.

Greenup attached and incorporated by reference in the complaint a list of equipment and accounts, enumerating the corporate assets of Rodair at the time of dissolution, and a copy of the accounting submitted by Rodman in the court action to dissolve Rodair, which showed her as only a 10 percent owner.   The attachment showed machinery and equipment with an “approximate value” of $176,950, $5,218 for office furniture, and “accounts” as follows:  “Continental Airlines—$50,000 per your [sic] approximation, ․ Hughes Airwest—$180,000 per your [sic] approximation, ․ Hamilton Standard—$25,000.00 per your [sic] approximation․  All other accounts [there were 31] grossed $100,000 to $150,000 per year.”

She further alleged that she had been damaged by his conversion of the assets, and had suffered emotional and physical harm as a result of his breach of fiduciary duty.

The prayer of the complaint contained the following requests:  (1) “For general damages in a sum subject to proof at time of trial”;  (2) “For exemplary and punitive damages ․ of ․ $100,000”;  (3) “For medical ․ expenses ․ and loss of earnings ․ subject to proof at time of trial”;  and (4) “For such other and further relief that the Court may deem just․”

On October 1, 1980, Rodman, represented by attorney Michael A. Iversen, filed separate demurrers to the complaint, as majority shareholder of Rodair, as sole shareholder of Rodman Aviation, as Rodman Aviation, and as an individual.

On October 1, 1980, Greenup filed opposition to these demurrers, stating in relevant part that she had owned a 20 percent interest in Rodair;  that she believed Rodair as a going business had been worth about one million dollars;  that her share should have been “$200,000, at least”;  and that Rodair had actually continued to operate, under the new name of Rodman Aviation, a corporation created and owned solely by Rodman, despite the dissolution.

Greenup noticed Rodman's deposition for October 28, 1980, and served subpoenas duces tecum directed to Rodman as the custodian of records for Rodman Aviation, requesting production of records.   Neither Rodman nor attorney Iversen made an appearance.

On or about November 13, 1980, Rodman substituted in new counsel, Neil A. Olsen, in place of attorney Iversen.   On December 8, 1980, Rodman failed to appear for an agreed upon deposition, even though attorney Olsen, Greenup, and her counsel were present.

Meanwhile, on December 9, 1980, the court overruled his demurrers to the complaint.

On January 15, 1981, all defendants (Rodman in his three capacities, and Rodman Aviation) answered the complaint, alleging that Rodman owned 90 percent of the stock of Rodair and that Greenup owned only 10 percent.

On January 21, 1981, Greenup again noticed Rodman's deposition, this time for February 11, 1981, and requested Rodman to produce documents relating to Rodair and Rodman Aviation.   Apparently, Rodman's attorney requested that the deposition actually occur the following day.

The transcript of Rodman's deposition on February 12, 1981, reflects that he attended with counsel Neil A. Olsen, but refused to answer questions on the ground that it was Lincoln's Birthday, a legal holiday, and did not produce any documents.   Greenup's counsel ascertained that the deposition had been set for that day at the convenience of Rodman's attorney and warned Rodman that Greenup would seek sanctions and an order to compel.

Rodman was substituted “in pro per” as counsel in place of Neil A. Olson, by substitution dated February 12, 1981, and filed February 17, 1981.

On April 13, 1981, Greenup filed a motion to strike the answer and enter default;  to compel deposition and production of documents;  and for costs and sanctions.

On April 28, Judge Frank J. Baffa denied the motion to strike the answer and enter default, and granted the motion to compel deposition and production.   Rodman was ordered to appear on May 20, 1981, at Greenup's counsel's office and to pay sanctions of $500.

On the ground that a notice of ruling mailed to him by plaintiff's counsel regarding the April 28 order had stated that the deposition was to take place on “March 20, 1981,” Rodman refused to appear on May 20, 1981.

On June 5, 1981, Greenup applied ex parte for an amended order for deposition on June 30, 1981, having given Rodman telephonic notice on June 3.   A judge granted the order.

On or about June 4, 1981, Rodman, represented by his original attorney, Michael A. Iversen, noticed a motion for protective order and court-supervised deposition, which apparently was denied.

As recounted in the declaration of Greenup's attorney, on June 30, Rodman appeared with attorney Iversen at the offices of Greenup's counsel for deposition.   He brought four cartons with him.   These cartons contained papers, journals and checks.   They also contained “generous amounts of hay and horse droppings.”   Rodman answered the first question regarding check registers by dumping out one carton on the conference table, scattering “papers, hay and droppings.”   Rodman and attorney Iversen “laughed merrily.”   Rodman refused to produce any of the court-ordered documents regarding Rodman Aviation, and attorney Iversen objected to production on grounds of “relevance.”

After Greenup's attorney had examined records for about one hour, Rodman announced that the records and hay contained a chemical that could be absorbed through human skin, and that plaintiff's counsel and the court reporter should be sure to wash their hands, as the chemical could make them ill.   The court reporter was then five months pregnant and became upset and asked to be excused.   Plaintiff's counsel terminated the proceedings and told Rodman to leave the office.

On November 6, 1981, Greenup moved to strike the answer and enter default, and for costs and additional monetary sanctions, alleging the above facts.

Still represented by Michael A. Iversen, Rodman opposed Greenup's motion, on the ground that he had produced the required records and, remarkably, in light of the court's order to produce of April 28, 1981, that the complaint did not support plaintiff's attempts to obtain the records of Rodman Aviation.

Rodman's declaration supporting this opposition alleged that he had brought the records and attended his deposition until 11:30 a.m., and then gone to lunch, and that when he returned, he was ordered to take his records and leave.

On December 1, 1981, Judge John Shidler granted Greenup's motion for sanctions, in part, ordering Rodman to appear on December 23, 1981, at the offices of plaintiff's counsel, with the documents.   The court imposed sanctions of $500, in addition to the $500 already awarded, and ordered that if Rodman failed to comply, the motion to enter his default would be granted.   The court found that Rodman's behavior was willful and without substantial justification.   A signed order to that effect was entered on December 15, 1981.

Rodman did not appear on December 23, 1981, and on August 2, 1982, Greenup filed a motion to strike the answer and enter Rodman's default.

On August 24, 1982, Commissioner Abraham Gorenfeld granted plaintiff's motion, on the ground that Rodman failed to comply with proper discovery and that this failure was willful and without substantial justification.

Plaintiff's request to enter default, filed September 24, 1982, stated that default was to be entered for “Dale W. Rodman;  Rodman Aviation, Inc.” and stated the “Demand of Complaint” to be $677,433.60.

The prove-up hearing was continued several times.   Several times, Rodman, who had obtained a new attorney, filed motions to set aside the default and consolidate this action with other actions pending between the parties.  (In one of these actions, Rodman's default was also taken as a discovery sanction.)   These motions were denied.

On December 15, 1983, after an extensive prove-up hearing before Commissioner Gorenfeld, default judgment was entered against Rodman and Rodman Aviation “jointly and severally” in the sum of $676,000, consisting of $338,000 in compensatory damages, and $338,000 in punitive damages.

Rodman moved for reconsideration and to set aside the default.   This motion was also denied.

This appeal followed.

CONTENTIONS

Appellants Rodman and Rodman Aviation contend that:  (1) Entry of judgment against Rodman Aviation was a clerical error and should be reversed;  (2) The judgment should be modified by striking the award of compensatory damages, the award of punitive damages in excess of $100,000, and the award of interest, because these items were not specified in the prayer of the complaint;  and (3) If no compensatory damages are allowed, the award of punitive damages cannot stand.

 Respondent moved to dismiss the appeal as to Rodman Aviation.1

DISCUSSION

I. Judgment Was Against Rodman Aviation

 The minute order of August 24, 1982, granting Greenup's motion to strike the answer and enter default, reads as follows:  “The court finds that defendant Dale Rodman failed to comply with proper discovery and that said failure was willful and without substantial justification.   The answer of said defendant is ordered stricken and his default entered per 2034 CCP.”

On the basis of the minute order, appellants contend that the clerk's entry of default against Rodman Aviation was a clerical error, and that the default judgment against Rodman Aviation “should be reversed on that ground alone.”

However, the transcript of the oral proceedings of that day reflects that the court's order was as follows:

“The answer of the defendant is stricken.   The default of the defendant is entered.   The court finds that failure to comply with discovery was willful and without substantial justification.”

There was more than one defendant in the case.   Defendants were Rodman, in various capacities, and his solely-owned business, Rodman Aviation, but Rodman controlled the course that all defendants took.   The court can only have intended to take the default of all defendants.

The written request to enter default specified that default was to be entered against both Rodman and Rodman Aviation, “Pursuant to Court order”;  and at the close of the default prove-up, the court expressly pronounced judgment against both defendants, Rodman and Rodman Aviation, and the written judgment, accordingly, was entered against both defendants.

The terms of the written judgment entered against both Rodman and Rodman Aviation make clear that in ordering entry of the default of “defendant,” the court was referring to both Rodman, in his individual and corporate capacities, and Rodman Aviation, his solely-owned corporation.   Contrary to appellants' contention, the court's entry of judgment against Rodman Aviation was not clerical error, but was the true intention of the court.  (Cf. Jines v. Abarbanel (1978) 77 Cal.App.3d 702, 716, 143 Cal.Rptr. 818.)

II. Compensatory Damages

 Appellants' main contention is that no award of compensatory damages was proper because no specific amount of damages was stated in the complaint.   This contention is based on the assertion that a judgment taken against a defendant as a sanction for willful and unjustified failure to obey a discovery order is subject to all the restrictions placed upon a default judgment taken against a defendant who has not responded to the complaint, pursuant to Code of Civil Procedure sections 580 and 585.2

The parties have not cited, and this court's research has not disclosed, a California decision on this point.   After review of the governing statutes and the decisions which might bear on this issue, we have concluded that a default judgment taken as a discovery sanction is not subject to the restrictions upon ordinary default judgments, and that this judgment must be affirmed.

The authority for judgment by default against a defendant who has refused to comply with discovery orders is provided by section 2034.   That section in subdivision (b)(2) provides in relevant part that, “If any party or person for whose immediate benefit the action or proceeding is prosecuted or defended, or an officer ․ of that party or person refuses to obey an order made under [§ 2034] ․, the court may make any orders in regard to the refusal which are just, including, but not limited to, any of the following:  [¶] (A) An order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of the paper, or the physical or mental or blood condition of the person sought to be examined, or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.   [¶] (B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing in evidence designated documents or things or items of testimony, or from introducing evidence of the physical or mental or blood condition of the person sought to be examined.  [¶] (C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.”

Pursuant to this section, after his willful failure to comply with the discovery order, the court struck Rodman's answer and entered a default judgment against him for the approximate amount requested in the request to enter default and supported by the evidence given by Greenup at the prove-up hearing.

 The trial court has broad discretionary powers to enforce its discovery orders, but its powers are not unlimited.   The court may impose such sanctions as are suitable and necessary to enable the party seeking discovery to accomplish the objectives of discovery, but may not impose sanctions which do not tend to accomplish that purpose but to impose punishment.  (Motown Record Corp. v. Superior Court (1984) 155 Cal.App.3d 482, 489, 202 Cal.Rptr. 227.)   For example, in Morgan v. Ransom (1979) 95 Cal.App.3d 664, 157 Cal.Rptr. 212, this court held that the ultimate sanction against the plaintiff of dismissal without consideration of the merits is not justified unless plaintiff's delinquency interferes with the court's mission of seeking truth and justice.   Accordingly, where defendant did not show that he was prejudiced by plaintiff's failure to answer interrogatories or that the interrogatory had any legitimate purpose, the dismissal was not remedial, but punitive, and could not be affirmed.

Under section 2034, the court has the power to make such orders as are “just, including, but not limited to,” certain designated orders.   This statute gives the trial court broad discretion to fashion a remedy for the unavailability of discovery which is consistent with the accomplishment of justice in the case.

Plaintiff here sought to discover from defendant the very information which would enable her to make out her case that defendant had converted the assets of a going business to his own use.   That information would also have enabled plaintiff to state the amount of monetary damages to which she was entitled.   Defendant willfully and unjustifiably thwarted plaintiff's legitimate discovery efforts.   Removing defendant from the case and allowing plaintiff to prove damages according to the best evidence she could obtain without defendant's cooperation was a sanction appropriate to the situation and precisely calculated to remedy the effects of defendant's refusal to allow discovery.   The order was entirely remedial, and was not punitive, and should be upheld.

 It is a maxim of jurisprudence that one cannot take advantage of his own wrong.  (See Civ.Code, § 351.)   If this court were to accept appellants' position on this case, just such a result would occur.   Defendant would have prevented plaintiff from obtaining discovery, then, after several years of proceedings, and disobedience of two discovery orders, would have the court treat him the same as a defendant who has simply chosen to submit to judgment without contest.   Defendant who allowed the case to proceed but refused discovery would, in fact, be better off than a defendant who chose not to answer, because defendant would have a better idea, as the case progressed, of just how good plaintiff's case was.   Then, by committing willful and unjustified refusals to obey discovery orders, defendant could deprive plaintiff of the opportunity to prove any damages beyond those stated in the complaint.

To limit plaintiff in a case such as this to the same damages that could be recovered against a defendant who passively fails to file an answer would allow a defendant who was so inclined to file a responsive pleading and then take “wilful and unjustified” steps to resist discovery, secure in the knowledge that, if he should finally exhaust the patience of the plaintiff and cause the court to intervene in a discovery dispute and impose the ultimate sanction of default, he could be liable for no greater judgment than if he had never filed an answer at all.

Appellants assert that defaults as discovery sanctions are governed by the first clause of section 580, so that judgment cannot exceed the amount stated in the complaint, but reasonable statutory interpretation does not support this assertion.   Additionally, we have determined that the rationale of those decisions holding that a default judgment upon defendant's failure to answer the complaint is limited to the amount on the face of the complaint is inapplicable to a default entered as a discovery sanction.   Likewise, the federal decisions on default judgments are inapplicable because of certain differences in the governing rules.

Section 580 provides in relevant part that, “[t]he relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint;  but in any other case, the court may grant him any relief consistent with the case made by the complaint and embraced within the issue.”  (Italics added.)

Appellants also cite section 585 to support their contention.   That section provides in relevant part that, “In [an action], if ․ no answer ․ has been filed ․ judgment [may be awarded] for such sum (not exceeding the amount stated in the complaint), as appears by such evidence to be just.”

Appellants contend that the phrases, “if there be no answer,” and “if ․ no answer ․ has been filed,” cover both the situation where defendant has never answered the complaint and the situation where the answer has been stricken as a discovery sanction, and that to strike an answer as a discovery sanction should return the case to exactly the same posture as if an answer had never been filed.

 Statutes must be given a reasonable construction which conforms to the legislative intent.   They should be interpreted to promote the objective intended and consistent with wise policy, and the statutory language read as a whole, as well as the consequences that would flow from a particular result, must be considered.   Significance should be given to each word or phrase.  (Kahn v. Kahn (1977) 68 Cal.App.3d 372, 381, 137 Cal.Rptr. 332.)

 We have set forth above the unreasonable result which would flow from treating a sanction default the same as a failure to answer a complaint under section 580, and we are satisfied that “if there be no answer” does not cover an answer stricken as a discovery sanction.   This conclusion is further supported by section 585, which refers to a situation in which no answer has been filed, and by its own terms, does not have reference to a situation in which an answer has been filed and stricken by order of court as a discovery sanction.   Moreover, our conclusion is further supported by the language of section 586, which provides for certain situations in which default “shall be rendered in the same manner, as if the defendant had failed to answer,” and does not include the situation in which the answer is stricken as a discovery sanction.   As amended in 1983 (1983 Stats., ch. 1167), subdivision 7 of section 586 provides that default shall be rendered in the same manner as if the defendant failed to answer, “If a motion to strike the answer in whole, of the character specified in Section 585, is granted․”  (Italics added.)  Section 585 provides in relevant part that, “A notice of motion to strike within the meaning of this section is a notice of motion to strike ․ a pleading filed within the time which the moving party is required otherwise to plead to such pleading.”  (Italics added.)   Thus, it appears that sections 585 and 586 require entry of default in the manner provided in section 585, after the answer has been stricken, only when the answer has been stricken pursuant to a motion to strike filed within the pleading phase of the case.   No mention is made in either statute of the situation in which the answer is stricken as a discovery sanction.

 The enumeration of things coming within the statute will preclude the inclusion by implication of other things.  (People v. Mancha (1974) 39 Cal.App.3d 703, 713, 114 Cal.Rptr. 392.)   Thus, we conclude that the Legislature did not intend the limitations of sections 585 and 586 to apply to defaults as discovery sanctions.

In those cases holding that when an answer is stricken, the effect is to place the case in the same posture “as if” no answer had been filed, the answer was stricken as a pleading matter, and for the reasons discussed above, those cases are distinguishable from the present case.  (See, e.g., Brown v. Ridgeway (1983) 149 Cal.App.3d 732, 197 Cal.Rptr. 327;  Lattimer v. Ryan (1862) 20 Cal. 628, 632–633 (answer struck for lack of verification).)

In Becker v. S.P.V. Construction Co. (1980) 27 Cal.3d 489, 493–494, 165 Cal.Rptr. 825, 612 P.2d 915, the court said, “The primary purpose of [section 580, which provides that ‘the relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint․’] is to insure that defendants in cases which involve a default judgment have adequate notice of the judgments that may be taken against them.  [Citation.] ․  [¶] The notice requirement of section 580 was designed to insure fundamental fairness.”

However, when defendant's default is properly taken pursuant to section 2034, and the defendant has had fair notice of all that plaintiff is seeking and all that has occurred in the case prior to entry of the default, and not merely what is stated in the complaint, as is the case before us, the defendant is afforded protection from arbitrary and punitive judgments by the requirement that the court take evidence on the amount of damages, pursuant to the second clause of section 580.

The federal decisions holding that a default judgment taken as a discovery sanction is limited to the amount demanded at the time defendant commits the sanctioned behavior are distinguishable because they are based on a federal rule which is worded differently from section 580, in a respect that is material here.

Federal Rules of Civil Procedure, rule 54(c), provides in relevant part:  “A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment.”  (Italics added.)

Rule 54(c), purports to cover any “judgment by default,” and does not contain the language, “if there be no answer,” which is contained in section 580.

It is this broader language in the federal rule which supports the conclusion of commentators and some of the federal decisions (see, e.g., Fong v. United States (9th Cir.1962) 300 F.2d 400, 412–413, cert. denied 370 U.S. 938, 82 S.Ct. 1584, 8 L.Ed.2d 807), that rule 54(c) does not differentiate between a default taken after the failure of defendant to appear and one taken following appearance.  (See 6 Moore, Federal Practice (2d ed. 1983) para. 54.61.)   Even so, there has been some criticism of the federal rule.  (See Moore, supra.)

Nevertheless, under some federal decisions, when default judgment is entered as a discovery sanction, defendant is charged with notice not only of what is demanded in the complaint, but of demands made in papers filed later.

In Trans World Airlines, Inc. v. Hughes (2d Cir.1971) 449 F.2d 51, 78–79 (rev. on another ground in Hughes Tool Co. v. Trans World Airlines (1973) 409 U.S. 363, 93 S.Ct. 647, 34 L.Ed.2d 577), the court upheld an award of damages above that requested in the complaint, upon the default of defendant taken after refusal to cooperate with legitimate discovery orders, reasoning as follows:  “Although the authorities do not appear to be in agreement ․, we are of the view that there is no sound basis for restricting TWA to the precise damages originally sought in a case where damages alleged were unliquidated, and where defendant did not default by nonappearance, but rather because of noncompliance with discovery procedures, and indeed was granted a full trial on the question of damages actually caused by the allegations established by its default.  [Citations.]”

The federal rule in some districts is that where a defaulted defendant appears at a prove-up hearing on unliquidated damages (as federal law permits), or where plaintiff makes known its increased demand for damages before defendant's failure to comply with discovery orders, a default judgment may award more than originally sought, despite the provisions of rule 54(c).  (6 Moore, Federal Practice, ¶ 55.08.)

The courts of this state are not bound by the undifferentiated language of rule 54(c) regarding all judgments “by default,” and, therefore, have jurisdiction to award damages according to proof embraced within the complaint and other proceedings taken in the case.

Because the court was not limited at the prove-up hearing to the amount of damages noticed in the complaint, we need not consider appellants' contention that the prayer for general damages according to proof, read with the allegations of the complaint and the exhibits incorporated by reference therein do not constitute sufficient notice to support an award of damages.

III. Interest

Appellants contend that interest should not have been awarded because there was no request for interest in the prayer of the complaint.

They also contend that “the award of interest in the judgment had the effect of awarding plaintiff double interest,” because the court had already included prejudgment interest in its award of compensatory damages.

The facts were as follows:  The court did include an amount representing prejudgment interest in its award of $338,000 in compensatory damages.   The judgment then awarded plaintiff “$338,000.00 in compensatory damages and $338,000.00 in punitive damages ․ [and] interest thereon as provided by law․”

 The award of interest included within the $338,000 compensatory damages award was supported by the demand for “general damages in a sum subject to proof,” as it was an element of those damages.  (See Big Bear Properties, Inc. v. Gherman (1979) 95 Cal.App.3d 908, 914, 157 Cal.Rptr. 443.)   Rodman had notice from the complaint that Greenup sought damages resulting from his conversion, at a certain time, of Rodair, and, under the circumstances of this case, he had fair notice that Greenup could obtain prejudgment interest.   As we have already held that the award of damages was not limited to specific amounts pled by plaintiff, the award of prejudgment interest was also within the court's jurisdiction.

 There was no “double” award of interest.   The award of “interest thereon as provided by law” referred to postjudgment interest.   Postjudgment interest is properly awarded, even where the judgment includes an award of prejudgment interest.  (Big Bear Properties, Inc. v. Gherman, supra, 95 Cal.App.3d at pp. 913–915, 157 Cal.Rptr. 443.)

Therefore, the awards of interest must be affirmed.

IV. Punitive Damages

The prayer of the complaint requested $100,000 in punitive damages, but, after the prove-up hearing, plaintiff was awarded $338,000 in punitive damages.   Appellants contend that the award must be reduced to $100,000.

 For the reasons set forth in our discussion of compensatory damages, the award of punitive damages greater than the amount set forth in the prayer and pled in the complaint was within the jurisdiction of the trial court, as it was clearly contemplated by the parties that punitive damages could be awarded according to proof.   The body of the complaint alleged that punitive damages should be awarded, but did not specify an amount, whereas the prayer requested $100,000 in punitive damages.

 It is without question that the issue of whether damages are grossly excessive may be addressed on appeal from a default judgment.  (Uva v. Evans (1978) 83 Cal.App.3d 356, 363, 147 Cal.Rptr. 795.)   Therefore, we may consider on its merits appellants' contention that punitive damages were excessive.

 Appellants contend that the court improperly based its award of punitive damages on the gross value of real estate owned by Rodman, rather than its net value.   Although net worth is one factor used in assessing punitive damages, gross wealth may also be considered.  (Vossler v. Richards Manufacturing Co. (1983) 143 Cal.App.3d 952, 967, 192 Cal.Rptr. 219.)   Other relevant factors are the reprehensible nature of defendant's conduct;  the degree of harm suffered by plaintiff;  and the level of damages necessary to punish and deter.  (Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 928–929, 148 Cal.Rptr. 389, 582 P.2d 980.)

In Goshgarian v. George (1984) 161 Cal.App.3d 1214, 1227–1229, 208 Cal.Rptr. 321, the court noted that punitive damages awards exceeding 10 percent of net worth have usually been found excessive, but that ratios of punitive to actual damages ranging from 0.8 to 1 to 2,000:1, have been upheld.

 The ratio in this case was 1:1, and, given such a low ratio, the fact that the compensatory award represented only 20 percent of Rodair's value, and that Rodman had other very substantial assets, it necessarily follows that the punitive damages did not represent an excessive percentage of his net worth.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   Respondent moved to dismiss the appeal of Rodman Aviation on the ground that only Dale W. Rodman is specified as an appellant in the notice of appeal.   However, the notice of appeal specifies that “defendants Dale W. Rodman, et al.,” appeal from the judgment.   The defendants in this case included Rodman, in his individual and corporate capacities, and Rodman Aviation.   The phrase “et al.,” which is an abbreviation for “et alia,” means “and others.”   It can only be reasonably interpreted on this notice of appeal to mean that Rodman Aviation is also an appellant.Moreover, the rule of liberal construction of the notice of appeal supports inclusion of Rodman Aviation as an appellant.   Where respondent is not misled or prejudiced, the filing of a notice of appeal by one appellant will support the treatment of another, related party who did not file a notice of appeal as another appellant.  (See Beltram v. Appellate Department (1977) 66 Cal.App.3d 711, 715–716, 136 Cal.Rptr. 211.)We deem Rodman Aviation to have appealed from the judgment taken against it.

2.   References to sections hereafter are to the Code of Civil Procedure, unless otherwise noted.

ARGUELLES, Associate Justice.

WOODS, P.J., and McCLOSKY, J., concur.

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