1. Free Legal Help, Legal Forms and Lawyers. TheLaw.com has been providing free legal assistance online since 1995. Our most popular destinations for legal help are below. It only takes a minute to join our legal community!

    Dismiss Notice

Request for Entry of Default + Statement of Damages: Proper way to itemize amounts?

Discussion in 'Civil Court, Procedure & Litigation' started by iamHankster, Apr 30, 2012.

Thread Status:
Not open for further replies.
  1. iamHankster

    iamHankster Law Topic Starter New Member

    Messages:
    17
    Likes Received:
    0
    Trophy Points:
    0
    Hi,

    In California, I plan to file a request for entry for default. I already served defendant with a Statement of Damages. I was confused as to how I should account for the general damages specified in complaint when I itemize the various amounts in the Statement of Damages and the Request for the Entry of Default.

    Below, for the sake of example I provide a simplified Prayer for Relief, Statement of Damages and a Request for Entry of Default. I would certainly appreciate any clarification that can be provided on the proper itemization



    PRAYER FOR RELIEF

    WHEREFORE, Plaintiff prays for judgment against Defendant for the sum of $6,000.00 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;


    See also Exemplary Damages Attachment, page 20, in re: CCP § 3294).
    ____________________

    Statement of Damages
    1. General Damages
    a. Pain, suffering and inconvenience: $3,000.00
    b. Emotional distress: $3,000.00
    c. Cost of Professional Data Recovery Services: $ 2,000.00
    d. Virus Infected software development project: $2,000.00
    e. Virus Infected multi-media and miscellaneous files: $2,000.00
    ---
    Above, in the Statement of Damages, I wasn’t sure whether to also include the amount for the general damages as stated in my complaints prayer for relief, i.e., items(c), (d) and (e).

    ____________________

    Request for Entry of Default

    Judgment to be entered
    a. Demand of complaint: $6,000.00
    b. Statement of damages *
    (1) Special: $0.00
    (2) General: $6,000.00 (or should I instead specify total from
    the Statement of Damages, i.e. $12,000?)
    f. TOTALS: $12,000.00

    ---
    Above, in the Request for Entry of Default, in (a), it asks for the “Demand of complaint.” So, I put the amount of general damages that I requested in the complaint’s prayer for relief.

    In (b)(2) above, it asks for the amount of general damages that I indicated in the Statement of Damages. I am confused.

    _________

    Questions:

    (1) The amount of general damages, item (b), should not include the demand of complaint? As I already specified that in item (a)? I am assuming that I include item (a) in the total.
    (2) Or, should I specify the total $12,000 from the “general damages” section of the Statement of Damages, and not include item (a) in the total.


    Note: I decided not to seek punitive damages.


    Thank you much,

    iamHankster
     
    Last edited: Apr 30, 2012
  2. fredrikklaw

    fredrikklaw Moderator

    Messages:
    401
    Likes Received:
    78
    Trophy Points:
    0

    Some dos and some don'ts!

    IAMHANKSTER:

    Let’s take this from the top!

    Leave the Defendant be; you do not need to serve him with a list of damages and other itemized demands. He has ignored the suit up to now and he is not going to be moved into any action by any statements, but he may well spring into action with your next move which I will set out.

    Obtaining a Default Judgment in California (as you well know) is a two-step process; well it is supposed to be, anyways. Whether the dispute is over a liquidated amount or not, you will (1st) have to file a Request for Entry of Default, in the absence of which you will soon be getting an O.S.C. (order to show cause) to answer why you have not moved for default yet. The application should be filed using the proper Judicial Council Form, and only that as the application will be refused if filed in a pleading format.

    Once the clerk of the court enters the defendants’ default, you will (2nd) then call the calendar clerk of the department to which your case is assigned and schedule a Hearing for Entry of Default Judgment. This is when you will appear before the judge who will examine the application and if all is in place, will turn your request for entry of default into a Default Judgment and enters it into records as such.

    The hearing is a NOTICED HEARING which means you will have to serve Defendant notices for both the application for entry of default and also for the hearing for entry of default judgment. Your application for the request of entry of default HAS TO be accompanied with an AFFIDAVIT stating more or less that the defendants were served; they have not responded or otherwise appeared within the time allowed by the Code, and that you have exercised Due Diligence in notification to the Defendant of the proceedings, proving to the court that Defendant has had ample notice and opportunity to appear and defend against your claims but has opted not to do so and as such his default should be adjudged and entered.

    The clerks reviewing your request for entry of default are not so much concerned about the amounts demanded as to notice, proof of service, and also the presence and a good showing of due diligence. So do not waste too much time calculating what amounts to enter on what line as it is the judge who will ultimately decide what the dollar amounts will be.

    But a few caveats about the nature of some of your overall demands and numbers:

    I can tell you right off the bat that a prayer for damages resulting from emotional distress, pain and suffering, and inconvenience will be summarily stricken by the court and so you had better not even include them. That is because the standard of proof for a claim of IIED is so very high as to require an unequivocal showing of an adverse physical manifestation of the stress caused by the Defendant. In other words, unless you show in no uncertain terms that the pain and suffering caused you to develop (for example) ulcer, shakes, insomnia, internal-bleeding, and other such physical ailments, then, the claim will be rejected.

    Also, your demand for general damages seems more to be for special damages. The rule of legal-thumb for General Damages are those caused incidental to the main cause of action; a by-product of Defendant’s wrongful act, if you like. So make that distinction clear in your demands.

    But that does not matter at this point.

    I understand from the information that you are in fact filing the request on FORM CIV-100, in which case you are trying to fill in and answer the wrong questions. Those questions come in section 2 and under JUDGMENT TO BE ENTERED. But you are not asking for, and in fact cannot ask for an entry of Default Judgment as that is not a task for the clerk but for the judge alone. That section should be left blank, which is what happens when you check box 1(c) which says “Enter default of defendant (names).”

    After checking box 1(c), you move on to number 4 on the second page and answer the question about if you received Legal Document assistance and the rest.

    Those numbers and dollar amounts you are concerned with should be entered and briefly explained in the Affidavit in support of the application for Request for Entry of Default, which by the way, has to be, or had better be in a pleading format (28-Line pleading paper).

    fredrikklaw
     
    Last edited: Apr 30, 2012
    iamHankster likes this.
  3. iamHankster

    iamHankster Law Topic Starter New Member

    Messages:
    17
    Likes Received:
    0
    Trophy Points:
    0
    fredrikklaw.


    Wow! I really appreciate such a clear and concise response to my questions. I had not anticipated an overview and analysis that was so thorough. (Simply remarkable!)

    I will indeed digest and incorporate your recommendations into my next steps.


    Thank you ever so much,

    iamHankster
     
  4. iamHankster

    iamHankster Law Topic Starter New Member

    Messages:
    17
    Likes Received:
    0
    Trophy Points:
    0
    I began my prayer for relief with the following line: “WHEREFORE, Plaintiff prays for judgment against Defendant for the sum of $6,000.00 for general and specific damages, as well as interest and costs of suit, including, but not limited to: …”

    I have decided to ultimately seek the following damages:


    1. Cost of professional data recovery service.
    2. Loss of software development project files, due to virus contamination. These extensive files became corrupted, hence unreadable.
    3. For the time and expense that Plaintiff spent trying to recover data files from his internal and external hard drives.
    4. For the time Plaintiff spent trying to replace certain lost files and programs.



    QUESTIONS:


    1. Is the primary distinction between special and general damages:

    (a) Measurable dollar amount of actual loss versus inferred intangible loss?

    or

    (b) Loss that is a direct result of a tort versus being incidental to the main cause of action


    2. My evidence of the value of the cost of professional data recovery service is written cost estimates from several professional data recovery specialists. So, number one is a type of special damage, correct?


    3. Are damages sought in (2), (3) and (4) also types of special damages? (These must somehow be quantifiable.)
     
    Last edited: May 1, 2012
  5. iamHankster

    iamHankster Law Topic Starter New Member

    Messages:
    17
    Likes Received:
    0
    Trophy Points:
    0
    Clerk rejected request for entry of default: surprise responsive pleading.

    Hi,

    1. I filed a request for entry of default. The clerk, in the default department, processed and rejected my request for entry of default. I later spoke to her. She explained that the rejection was because defendant filed demurrer ten days before my request. Defendant had never served me with a demurrer; so it was a surprise to me.

    That same day, I checked court records for any proof of service of that demurrer; there was none. Also, I did obtain a copy of the demurrer from the court. There is no proof of service attached. Subsequently, I mentioned the demurrer to defendant. He stated that he never served me with such demurrer because he did not think it necessary.

    ---

    I thought that simply filing such demurrer was not sufficient, as defendant should have also served me within it before the expiration of that 30-day period after he was served with Complaint.


    2. The boiler-plate demurrer is based, in part, upon my Complaint's failure to state facts sufficient to constitute a cause of action, i.e. general demurrer. (Note: My Complaint contains five causes of actions.)


    3. Demurrer is also based upon the ground that the pleading is uncertain, i.e., special demurrer: "The Complaint is ambiguous and lacks any understanding."


    4. Nowhere in the Memorandum of Points an Authorities does defendant cite any statutes or case law relating to defendant's contention that each of my five cause of actions lack allegations corresponding to an essential element thereof. He only cites a statute and a case that relate to the standard of review for demurrers.


    5. Defendant did not specifically indicate which cause of action is lacking which essential element(s). i.e., which allegations I failed to plead for a given cause of action. (Note: My pleadings is most comprehensive; and I took great pains to properly frame it so as to adequately allege each and every element of its various cause of actions. All were supported by detailed facts.)


    6. Finally, defendant did not identify any specific allegation or fact that is supposedly uncertain or ambiguous. (Note that, in each heading section of the body of my pleadings, I specifically stated that the cause of action specified therein was against defendant.)


    ---

    QUESTIONS:

    a. What can I do about defendant’s failure to serve me with any such demurrer within the 30 days after having been served with my Complaint? (It doesn't seem fair that I must now wait until September for the demurrer motion hearing. After all, why should a demurrer—with which I was not served—cut off any prospect of a default judgment and also presently preclude any discovery?)

    b. Does defendant need to specifically state the basis upon which he claims each of my cause of actions lack a necessary element, i.e., allegation?

    c. Does defendant not need to specifically identify each part of my Complaint that he contends is ambiguous and/or uncertain as well as why he believes it to be so?



    ---
    “...uncertainties” must be specified. Where a demurrer is made upon this ground, it must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears (by reference to page and line numbers of the complaint). Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809.
    ---



    Thanks in advance,

    iamHankster
     
    Last edited: Jul 4, 2012
  6. fredrikklaw

    fredrikklaw Moderator

    Messages:
    401
    Likes Received:
    78
    Trophy Points:
    0

    Slap in the demurrer!

    As I have suggested to you already, do not waste good energy in attempts to make an issue out of (and rightly so) the late filing of the demurrer and the total lack of service of process. It is a bit of a sly legal manoeuvring which although perfectly within the bounds, its intended consequences are highly dubious and downright frivolous and it is a slap in the face of all well meaning and bona fide pro se litigants like yourself.

    But fear or stress not; two can play that game and it takes two to tango! As well as all the other similar clichés notwithstanding. Because there is a perfectly legal, responsive manoeuvre available to you courtesy of the Code of Civil Procedure which will assist you to turn arrogance into minced-meat and the Demurrer into De-what? without so much as dignifying the antagonist's action with an iota of direct response.

    It is basically what Bruce Lee defined best in the Enter of the Dragon: "The Art of Fighting, without Fighting!" Just need to know the date the Demurrer was filed, that is all.

    fredrikklaw
     
  7. iamHankster

    iamHankster Law Topic Starter New Member

    Messages:
    17
    Likes Received:
    0
    Trophy Points:
    0

    The defendant filed demurrer on June 21, 2012.
     
  8. fredrikklaw

    fredrikklaw Moderator

    Messages:
    401
    Likes Received:
    78
    Trophy Points:
    0

    One more question! Well two, really.

    I want to be absolutely positive of what I am about to suggest, so... I understand that since filing the Original Complaint, you have not moved for anything else (not including Request for Default), have you?

    By the way, since Demurrer is a mandatory Noticed Motion, there should be showing on the Notice of Demurrer
    a court date on which it will be heard and decided. What is that hearing date please? I am guessing around the first week of August 2012. Also, what is your jurisdiction/state?

    fredrikklaw
     
  9. iamHankster

    iamHankster Law Topic Starter New Member

    Messages:
    17
    Likes Received:
    0
    Trophy Points:
    0
    This is the demurrer filing date and hearing date for motion

    The state is California.

    ---

    SEE topic # 5, above. It explains, "I filed a request for entry of default." The default department clerk rejected it due to the demurrer filing; that is how I found out about the demurrer, with which I had never been served.

    Note: Defendant filed demurrer on 6/21/12. Notice of Demurrer indicates that hearing date is 9/25/2012.

    I thought that was a quite along time to wait for such a hearing.

    Accordingly, I found the following information in my research:


    A party filing a demurrer must serve and file a Notice of Demurrer that sets forth a hearing date in compliance with CCP § 1005. [CRC Rule 3.1320(c)]

    The hearing on the Demurrer must not be more than 35 days following the filing of the Demurrer or on the first date available to the court thereafter. [CRC Rule 3.1320(d)]
     
    Last edited: Jul 4, 2012
  10. fredrikklaw

    fredrikklaw Moderator

    Messages:
    401
    Likes Received:
    78
    Trophy Points:
    0

    F.A.C. will moot the Demurrer!

    Well, the long lead time for the hearing is squarely due to the rampaging budget cuts. Accordingly, from July 1st, the Central Division of the San Diego Superior Court has or is in the process of closing down (I believe) 8 criminal court rooms and about 4 civil ones with Friday being gradually phased out at the Civil Business Office, so, nothing sinister in that respect.

    And yes, you are of course correct on all your points regarding the various timelines governing the action of demurrer, including what really sounds like an underhanded attempt to score some brownie points off the grid and without your knowledge until it was too late.

    But all things considered, said, and done, none of the defendant’s shenanigans will matter worth a sausage if you decide to take the next course of action that I highly suggest here. And again, my suggestion will not be an action that would be immoral, illegal, unlawful, and such as you will see. And there is nothing stopping you serving a double-whammy by attaching a request for sanctions against the defendant with your next action.

    What I suggest to you as a viable next move is very simply to prepare, file, and serve the defendant with a First Amended Complaint (F.A.C.) the effect of which will be rendering the Demurrer MOOT for all intents and purposes and taking the scheduled hearing off calendar. In California, the filing of F.A.C. is of course and does not require court’s permission.

    And the rationale for such a move is as follows:

    The Defendant has already told you what he considers to be the prima fasciae deficiencies of your complaint including facts insufficient to constitute the various causes of action, a few or all of which he was hoping to have dismissed at the hearing by way of the demurrer. Therefore, you will be free to write a F.A.C. without any pressure from the court and with full knowledge of what the opposition considers to be lacking. So you will be able to nip, tuck, add, subtract, bend, tweak, and basically purpose-write the complaint.

    By filing a F.A.C. as soon as possible, you will also help expedite the litigation of this case, because the chances are always high for a demurrer to be sustained at least in parts, which would have meant for you the mandatory filing of a first amended complaint anyways. But the lead time for that is only 10 days and who knows how much substance you will have lost from your complaint. If your serve the voluntary F.A.C. let’s say on July 10th, the defendant will HAVE TO answer within 30 days and he cannot repeat his cutesy legal moves like not making proper service an what not.

    It is highly unlikely for the defendant to once again demur to the F.A.C. if you cure the supposed insufficiencies properly and he will not have the brass-requisites to transplant a nonsense demurrer because he has already moaned and groaned the entire length and breadth of your complaint.

    The filing of an F.A.C. while there is on the table a demurrer schedule to be heard and decided is the closest you can come to Jurist Prudence Castration of the opposition while declaring in no uncertain terms that you read their intentions like a cheap novel and the filing of the F.A.C. is your pre-emptive (counter) strike, if such a thing is even correct in military parlance.

    The other positive, short term, even immediate term effect of filing a F.A.C. is the relief from unnecessary stress that it provides by not having to spend weeks on end answering, preparing, writing, filing, arguing, and finally hoping to prevail on the action.

    Again I have to stress the fact that I never, ever preach what I haven’t personally either practiced, experienced, prepared, written, filed, argued, lost, or prevailed in, in real life, in real court rooms, arguing real points of law, up-close-and-personal and sometimes getting way too close for comfort.

    So, that was my two-cents on the subject. Take it for a ride and kick the tires a bit and see what you think and how you feel about it, and hey, call an attorney and run this by him or her just for good measure.

    Q.E.D: ...

    fredrikklaw
     
    iamHankster likes this.

Share This Page

Thread Status:
Not open for further replies.