Tharpe & Howell
News : Appellate Court Reminds All: Failure To Serve Statement of Damages = No Punitives Upon Default!
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APPELLATE COURT REMINDS ALL: FAILURE TO SERVE STATEMENT OF DAMAGES = NO PUNITIVES UPON DEFAULT!
The California Court of Appeal recently sent a strong reminder to all plaintiffs' counsel about the need to serve a Statement of Damages along with the Complaint - when making a claim for punitive damages. In this unpublished case, plaintiff Dale Sare, an attorney, filed an action for malicious prosecution against defendant Bernard Joseph Rosa, Jr. The complaint did not allege a specific damage amount, and Sare did not serve a Statement of Damages or a notice of intent to seek punitive damages on defendant Rosa. Following Rosa’s default, plaintiff Sare requested and received a default Judgment of over $200,000 in compensatory and punitive damages, plus attorney fees and costs. However, the Judgment was subsequently vacated on Appeal due to plaintiff Sare's failure to properly notify the defendant of the damages sought. During its review of the case, the Court of Appeal determined that, after a civil action filed by Rosa in propria persona against Sare was dismissed, Sare filed his complaint for damages (malicious prosecution). In the complaint, Mr. Sare alleged financial loss and loss of reputation, and sought: 1. General damages according to proof; 2. Special damages for financial loss according to proof; 3. Costs of suit; and 4. Such other and further relief as this Court may deem just and proper. Defendant Rosa, still proceeding in propria persona, failed to file a timely responsive pleading. On June 7, 2005, plaintiff Sare requested defendant Rosa’s default, stating all amounts demanded in damages, interest, costs, and attorney fees as $0.00. The Superior Court Clerk entered the default on June 9, 2005. On July 5, 2005, plaintiff Sare filed a Request for Default Judgment and a supporting Declaration, both submitted under penalty of perjury. He sought a total award of $104,824.50, consisting of $100,000 in damages, $324.50 in costs, and $4,500 in attorney fees. His request stated that the Complaint had demanded $100,000 in damages. After Defendant Rosa filed two unsuccessful motions for relief from default, Rosa appealed the default judgment. Finding that no Judgment or appealable order had yet been entered, the Court of Appeal dismissed the appeal on September 20, 2006. On October 12, 2006, plaintiff Sare filed a new Request for Default Judgment - now seeking a total award of $209,754.45, consisting of $100,000 in damages allegedly demanded in his Complaint, $9,141.75 in special damages, $100,000 in general damages, and $612.70 in costs. His supporting declaration characterized the new "special damages" as attorney fees and the new "general damages" as punitive damages. The declaration designated November 9, 2006, as the date for the prove-up hearing. On October 18, 2006, without having held a hearing or explaining why it had not done so, the trial court entered Judgment for plaintiff Sare in the full amount requested. After retaining counsel, defendant Rosa filed notice of appeal. In his appeal, defendant Rosa contended that because plaintiff Sare did not give notice of any specific amount of alleged damages, due process barred him from recovering anything in a default Judgment. In the end, the Court of Appeal agreed and the Judgment was vacated. |
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