Case Number: BC607276??? Hearing Date: September 06, 2016??? Dept: 31


Where the complaint seeks monetary relief that requires ?the exercise of judgment to ascertain (such as emotional distress damages, pain and suffering, or punitive damages), the plaintiff must request entry of judgment by the court. (Code Civ. Proc., ? 585, subd. (b).) In such cases, the plaintiff must affirmatively establish his entitlement to the specific judgment requested. ?The court shall hear the evidence offered by the plaintiff, and shall render judgment in the plaintiff’s favor for that relief, not exceeding the amount stated in the complaint, in the statement required by Section 425.11, or in the statement provided for by Section 425.115, as appears by the evidence to be just. If the taking of an account, or the proof of any fact, is necessary to enable the court to give judgment or to carry the judgment into effect, the court may take the account or hear the proof, or may, in its discretion, order a reference for that purpose. If the action is for the recovery of damages, in whole or in part, the court may order the damages to be assessed by a jury.? Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 287.
Here, the Complaint does not contain any numerical value as to the damages sought, but rather only seeks damages ?according to proof.? ?[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.? Becker v. S.P.V. Construction Co. (1980) 27 Cal.3d 489, 494. The Complaint does not even allege that the damages sought exceed the jurisdiction of this court. See e.g. Julius Schifaugh IV Consulting Services, Inc. v. Avaris Capital, Inc. (2008) 164 Cal.App.4th 1393, 1396 (noting that a claim that damages exceed the jurisdiction of the court provides notice of $25,000.00 in damages.) Because the Complaint fails to allege any numerical value for the damages sought, the Court cannot enter default on the Complaint.

Additionally, while Plaintiff?s request for entry of default refers to a statement of damages, a statement of damages has not been filed with the Court and there is no evidence that a statement of damages was ever served upon Defendant. Even if Plaintiff was able to demonstrate service of a statement of damages, it would be insufficient to establish the amount of damages sought in this non-personal injury action. Levine v. Smith (2006) 145 Cal.App.4th 1131, 1136-37 (?Statement of damages are used only in personal injury and wrongful death…. In all other cases, when recovering damages in a default judgment, the plaintiff is limited to the damages specified in the complaint.?) Therefore, a judgment based on a statement of damages in a non-personal injury or wrongful death case would be void. Id.; Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 286 (?we have also made it clear that a statement of damages cannot be relied upon to establish plaintiff’s monetary damages, except in cases of personal injury or wrongful death.?) Even if Plaintiff provided adequate notice in the Complaint, there is no evidence supporting the requested $100,000.00 in general damages.

Given the deficiencies in the Complaint, the Court cannot enter default judgment on the currently operative pleading. Plaintiff must file and serve an amended complaint providing Defendant with notice of the extent of his liability. The defects in the Complaint are incapable of correction without amendment.

The matter is continued to November 7, 2016. In this approximately 60-day period the court expects that plaintiff will file and serve an amended complaint that addresses the issues set forth herein. In addition, the court will expect plaintiff to have applied for and obtained entry of default assuming defendant once again does not answer. Plaintiff is ordered to provide the court with an amended default prove-up package no later than November 28, 2016.