04-23-2012, 03:21 AM #1
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Seeking a default judgment: Too late to serve defendant with a Statement of Damages?
Jurisdiction / State: California
I had the defendant served with the summons and complaint. The 30 days for the defendant to serve and file a responsive pleading will expire by the end of this week. If he does not file an answer or a demurrer by that time, I want to file an application for an entry of default and also obtain a default judgment.
1. Trespass to Chattel
2. Reckless Misconduct
4. Negligent Infliction of Emotional Distress
5. Intentional Infliction of Emotional Distress
The last two of my five causes of actions were personal injury claims. The law prohibited me from stating in the complaint itself the amount of damages I sought for those two claims. I recently learned that I am required to have served the defendant with a Statement of Damages (Judicial Council Form Civ-050), before seeking a default judgment. I need to file a Proof of Service of Statement of Damages when I file an Application for an Entry of Default.
Note that I did not use pre-printed forms for my complaint; I used pleading paper. I set forth my various causes of actions and their corresponding allegations on pleading paper. Also, I did attach an Exemplary Damages Attachment (CCP § 3294). Note that, in my complaint, I did provide many allegations in support of the reckless misconduct cause of action, as this relates to the punitive damages aspect.
I now realize that a critical step toward a default judgment is to serve the Mandatory 1997 Judicial Council form "Statement of Damages" with the complaint. I neglected to do that.
1. Is it too late to serve the defendant with such a Statement?
2. If I can still serve this statement, how can I serve it as a stand-alone document or as an amendment to the complaint?
3. If I cannot still serve this statement, does this mean that I must start all over again with a new suit?
Below is my relief request:
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for judgment against Defendant for the sum of $30,000.00 for general and specific damages, as well as interest and costs of suit, including, but not limited to:
a. For cost of professional data recovery services, in an amount according to proof;
b. For compensatory damages pursuant to California Civil Code section 3355 in an amount according to proof;
c. For mental, physical and nervous pain and suffering and severe emotional distress and incidental sundry expenses in an amount according to proof;
d. For punitive damages to be assessed against Defendant in an amount sufficient to punish and deter them and others from similar malicious and oppressive acts in the future;
e. For the time and expense that Plaintiff spent trying to recover data files from his internal and external hard drives, in an amount according to proof;
f. For the time Plaintiff spent trying to find and download certain lost files from the Internet, in an amount according to proof;
g. For the value of the lost data files, many of which Plaintiff had personalized with notations and special markups, in an amount according to proof.
See also Exemplary Damages Attachment, page 20, in re: CCP § 3294).
04-23-2012, 04:15 AM #2
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4. Can I still obtain default judgement notwithstanding the fact that I concluded each relief sought with "... in an amount according to proof"?
5. If I do get to the default stage, would if be wiser to forgo punitive damages, and simply request general damages as sought in body of my complaint?
I am trying to avoid complications that arise from default judgments necessitating prior service and filing of Statement of Damages.
California Code of Civil Procedure Section 425.11
(a) As used in this section:
(1) "Complaint" includes a cross-complaint.
(2) "Plaintiff" includes a cross-complainant.
(3) "Defendant" includes a cross-defendant.
(b) When a complaint is filed in an action to recover damages for
personal injury or wrongful death, the defendant may at any time
request a statement setting forth the nature and amount of damages
being sought. The request shall be served upon the plaintiff, who
shall serve a responsive statement as to the damages within 15 days.
In the event that a response is not served, the defendant, on notice
to the plaintiff, may petition the court in which the action is
pending to order the plaintiff to serve a responsive statement.
(c) If no request is made for the statement referred to in
subdivision (b), the plaintiff shall serve the statement on the
defendant before a default may be taken.
(d) The statement referred to in subdivision (b) shall be served
in the following manner:
(1) If a party has not appeared in the action, the statement shall
be served in the same manner as a summons.
(2) If a party has appeared in the action, the statement shall be
served upon the party's attorney, or upon the party if the party has
appeared without an attorney, in the manner provided for service of a
summons or in the manner provided by Chapter 5 (commencing with
Section 1010) of Title 14 of Part 2.
(e) The statement referred to in subdivision (b) may be combined
with the statement described in Section 425.115.
Last edited by iamHankster; 04-23-2012 at 04:45 AM. Reason: added content
04-23-2012, 09:58 AM #3
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You're worrying about procedure. Have you proven your case? No need to answer here, just think about it. Items 4 and 5 in your pleadings are extremely hard to prove. And, even if you prevail, your next battle will be collecting on your judgment. Good luck.
Happy Chanukkah, Christmas, & New Year!
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