Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 05CC05072, Randell L. Wilkinson, Judge.
Pacific Law Group and Ricardo A. Nicol III for Defendant and Appellant.
Rizio, Nelson & McGuire, R. Shawn Nelson and Gregory G. Rizio, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, J.
Plaintiff Christopher Hill sued defendant Pedro Pablo Arreola and several other individuals seeking damages for injuries he suffered during an altercation. As a sanction for refusing to comply with discovery orders, the trial court struck defendant’s answer and entered his default. After a prove-up hearing, the court entered judgment against defendant and other named defendants, awarding plaintiff compensatory damages of $650,000, punitive damages of $50,000, and costs of suit. Defendant appeals contending: (1) The judgment must be reversed because plaintiff failed to mail notice of the request for entry of default; (2) the compensatory damage award is void because plaintiff failed to present adequate proof that he served a statement of damages; and (3) the punitive damage award is erroneous. We conclude the first two contentions lack merit, but reverse the punitive damage award.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and his cohorts attacked plaintiff and another person without provocation, beating and kicking them. Plaintiff suffered serious physical injuries and emotional trauma. The attackers were charged with committing two counts of assault by means of force likely to produce great bodily injury, plus a great bodily injury enhancement. Several assailants, including defendant, pleaded guilty to the charges. Defendant’s plea provided the following factual basis for it: “I committed[] and aided and abetted another in assault by means of force likely to produce great bodily injury, to wit fists[] upon [plaintiff] . . . . [¶] I did inflict great bodily injury on [plaintiff].”
Plaintiff sued his attackers seeking damages for negligence, battery, and assault. Defendant filed an answer, but failed to respond to plaintiff’s discovery requests. Plaintiff obtained orders compelling responses, but again defendant failed to comply.
Then plaintiff filed a motion for sanctions including a request to “strik[e] defendant’s answer and enter[] a default against” him. The trial court struck the answer. Believing plaintiff had not filed and served a statement of damages, the court declined to enter a default judgment and took steps to schedule a default prove-up hearing. Plaintiff mailed defendant a notice of the ruling that stated his answer had been “ordered stricken and [his] default . . . entered.”
Plaintiff filed declarations and documentary evidence in support of his request for money damages. His attorney’s declaration noted “a Statement of Damages was served on” defendant when he “was personally served with the Complaint,” and attached copies of both the process server’s proof of service and the damages statement served on defendant. The statement sought $500,000 in general damages, $150,000 in special damages, and $500,000 in punitive damages.
DISCUSSION
1. Introduction
A default judgment is appealable, but the scope of review is limited to the trial court’s jurisdiction, the sufficiency of the pleadings, and whether the damages were excessive. (Steven M. Garber & Associates v. Eskandarian (2007) 150 Cal.App.4th 813, 824; Scognamillo v. Herrick (2003) 106 Cal.App.4th 1139, 1150; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 355, p. 403.) Defendant does not challenge the sufficiency of plaintiff’s complaint. However, he asserts two claims disputing the trial court’s jurisdiction to enter a default judgment against him, plus a third claim attacking the sufficiency of the punitive damage award. Only the latter contention has merit.
2. Entry of Default
Citing the order granting plaintiff’s motions for terminating sanctions, defendant claims “the trial court . . . declined to enter [his] default” due to the absence of “a statement of damages.” Thus, he argues that, “[i]f [plaintiff] wished to proceed by default, it was incumbent upon him to re-apply for entry of default,” and plaintiff’s failure to mail a copy of the application to him before doing so rendered “the default judgment . . . void.”
This argument is both legally and factually erroneous. Under Code of Civil Procedure section 587 (all further statutory references are to this code unless otherwise stated), “[a]n application . . . for entry of default” must “include an affidavit stating that a copy of the application has been mailed to the defendant’s attorney of record or, if none, to the defendant . . . .” While mandatory, the statute is not jurisdictional. (In re Marriage of Harris (1977) 74 Cal.App.3d 98, 102; Taylor v. Varga (1995) 37 Cal.App.4th 750, 759-760.) Thus, “failure to comply with the affidavit requirement is an error in the exercise of jurisdiction, but does not deprive the court of jurisdiction to render judgment.” (In re Marriage of Harris, supra, 74 Cal.App.3d at p. 102.) Consequently, the trial court had jurisdiction to enter a default judgment against defendant even if plaintiff failed to comply with section 587.
Furthermore, contrary to defendant’s assertion, plaintiff did send defendant notice of the default request. Defendant acknowledges proper service of plaintiff’s motions for sanctions and that they expressly sought an order striking his answer and entry of a default judgment. The trial court struck defendant’s answer and entered his default. Its minute order denied “[e]ntry of default judgment” (italics added) only. Plaintiff’s notice of ruling, issued at the court’s direction, also made it clear the court had entered his default after striking the answer. (§ 1019.5.) Thus, defendant’s reliance on section 587 lacks merit.
3. Service of the Statement of Damages
Defendant contends the trial court lacked jurisdiction to enter a compensatory damage award, claiming the record fails to establish plaintiff’s statement of damages had been served on him. Again, he misstates the record.
Generally, “The relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint, in the statement required by Section 425.11 [applying to actions for personal injury or wrongful death], or in the statement provided for by Section 425.115 [applying to actions seeking punitive damages] . . . .” (§ 580, subd. (a).) “[A] court has no power to enter a default judgment other than in conformity with section 580. [Citations.]” (Becker v. S.P.V. Construction Co. (1980) 27 Cal.3d 489, 493.) Thus, “a default judgment awarding damages in excess of the amount allowed under section 580 is beyond the court’s jurisdiction and . . . void.” (Matera v. McLeod (2006) 145 Cal.App.4th 44, 59.) Since “due process requires notice to defendants, whether they default by inaction or by wilful obstruction, of the potential consequences of a refusal to pursue their defense,” the foregoing rule also applies where a trial court strikes a defendant’s answer and enters its default as a sanction for refusing to comply with discovery orders. (Greenup v. Rodman (1986) 42 Cal.3d 822, 829; see also Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1294.)
Plaintiff’s complaint alleged he was entitled to recover general, special, and punitive damages either “in an amount in excess of the jurisdictional minimum of th[e] court,” or “according to proof . . . at the time of trial.” Standing alone, these allegations fail to support an award of compensatory damages. (Greenup v. Rodman, supra, 42 Cal.3d at pp. 829-830; Becker v. S.P.V. Construction Co., supra, 27 Cal.3d at p. 494.) But at the prove-up hearing, plaintiff presented evidence he served a statement of damages satisfying the requirements of sections 425.11 and 425.115 when serving the summons and complaint on defendant.
Defendant attacks plaintiff’s documentary evidence, arguing his attorney’s declaration fails to show counsel had personal knowledge of the facts contained in it. But an appeal from a default judgment cannot challenge the sufficiency of the evidence supporting the judgment. (Corona v. Lundigan (1984) 158 Cal.App.3d 764, 767; 9 Witkin, Cal. Procedure, supra, Appeal, § 355, at p. 403.) Thus, defendant’s claim that plaintiff failed to prove service of a statement of damages is not properly before us.
But even on the merits, defendant’s insufficiency of the evidence claim fails. In cases where the trial court conducts a prove-up hearing after entry of a defendant’s default, “the court in its discretion may permit the use of affidavits, in lieu of personal testimony, as to all or any part of the evidence or proof required or permitted to be offered, received, or heard in such cases.” (§ 585, subd. (d).) While “[t]he facts stated in such . . . affidavits shall be within the personal knowledge of the affiant” (ibid.), even in default cases, “Hearsay admitted without objection is evidence that may be considered. [Citations.]” (City Bank of San Diego v. Ramage (1968) 266 Cal.App.2d 570, 584; see also Flood v. Simpson (1975) 45 Cal.App.3d 644, 649.) Counsel’s declaration and supporting documentation support the judgment in this case.
Defendant does not contend the amount of the judgment exceeded the sum requested in the statement of damages served on him. (Scognamillo v. Herrick, supra, 106 Cal.App.4th at pp. 1147-1148.) Thus, his jurisdictional attack on the compensatory damage award is unavailing.
4. The Validity of the Punitive Damage Award
Next, defendant attacks the trial court’s punitive damages award on several grounds. We conclude that one claim, the failure to present sufficient evidence of his financial condition, has merit.
Civil Code section 3294, subdivision (a) authorizes recovery of punitive damages “[i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice . . . .” The statute’s “purpose is a purely public one[,] . . . to punish wrongdoing and thereby to protect [the public] from future misconduct, either by the same defendant or other potential wrongdoers. [Citation.]” (Adams v. Murakami (1991) 54 Cal.3d 105, 110.) “The essential question . . . in every case must be whether the amount of damages awarded substantially serves the societal interest.” (Ibid.) Thus, under state law, a court “determining whether the amount of [punitive] damages serves those interests . . . must consider the importance of the nature of the defendant’s wrongdoing, the amount of compensatory damages, and the defendant’s financial condition. [Citation.]” (Caira v. Offner (2005) 126 Cal.App.4th 12, 37; see also Adams v. Murakami, supra, 54 Cal.3d at p. 110.)
Plaintiff initially questions defendant’s right to assert this issue because it involves an attack on the sufficiency of the evidence. But, as noted, an appellate court may review the alleged excessiveness of a damages award in an appeal from a default judgment. (Steven M. Garber & Associates v. Eskandarian, supra, 150 Cal.App.4th at p. 824; Scognamillo v. Herrick, supra, 106 Cal.App.4th at p. 1150.) A damage award not supported by substantial evidence satisfies this requirement. (Ostling v. Loring (1994) 27 Cal.App.4th 1731, 1746.) In Adams, the Supreme Court declared “an award of punitive damages cannot be sustained on appeal unless the trial record contains meaningful evidence of the defendant’s financial condition” (Adams v. Murakami, supra, 54 Cal.3d at p. 109), because “[w]ithout such evidence, a reviewing court can only speculate as to whether the award is appropriate or excessive” (id. at p. 112). “Even if an award is entirely reasonable in light of the other two factors . . ., the award can be so disproportionate to the defendant’s ability to pay that the award is excessive for that reason alone.” (Id. at p. 111.) Thus, the validity of the punitive damage award is properly before us.
Alternatively, plaintiff contends “it is not an absolute precondition to an award of punitive damages that evidence of . . . defendant’s financial condition be introduced.” But Adams v. Murakami, supra, 54 Cal.3d 105 rejected a similar argument, declaring the “two [other] factors,” concerning the nature of the defendant’s misconduct and the amount of the compensatory damage award, “standing alone, . . . will not enable a reviewing court to make an informed determination of whether an award is excessive” because “an award might seem to be warranted under those factors, but nevertheless be excessive in light of the defendant’s financial condition.” (Id. at p. 114.)
The case cited by plaintiff, Mike Davidov Co. v. Issod (2000) 78 Cal.App.4th 597, does not mandate a different result in this context. There, after finding for the plaintiff on its fraud cause of action, the court ordered the defendant to produce records of his net worth. The defendant failed to comply with the order. Rejecting the defendant’s reliance on Adams, the Court of Appeal affirmed the punitive damages award. “[D]efendant was ordered to produce his financial records so that the trial court could make an evaluation of whether any particular punitive damage award would have the required deterrent effect without being overly burdensome. This order was never rescinded, nor has defendant argued on appeal that it was improper. Therefore, by failing to bring in any records which would reflect his financial condition, despite being ordered to do so, and by failing to challenge that ruling on appeal, defendant has waived any right to complain of the lack of such evidence. [Citation.]” (Id. at pp. 608-609.)
The present case is distinguishable. The trial court issued its order striking defendant’s answer and entering his default on January 18, 2006. But the prove-up hearing did not occur until April 12, nearly three months later. By statute, plaintiff could have either (1) “subpoena[ed] documents or witnesses to be available at the trial for the purpose of establishing the [defendant’s] profits or financial condition,” or (2) moved for discovery of defendant’s financial condition on the basis that, as a result of the discovery sanctions order, there was now “a substantial probability [he] will prevail on the [punitive damages] claim . . . .” (Civ. Code, § 3295, subd. (c); see Jabro v. Superior Court (2002) 95 Cal.App.4th 754, 758 [“the words ‘substantial probability’ . . . mean ‘very likely’ or ‘a strong likelihood’”].) “The record does not suggest [plaintiff] utilized these procedures.” (Kelly v. Haag (2006) 145 Cal.App.4th 910, 919.)
Furthermore, as in Mike Davidov Co., at the time of the prove-up hearing plaintiff could have sought an order directing defendant to produce his financial records. (See also Caira v. Offner, supra, 126 Cal.App.4th at p. 37; StreetScenes v. ITC Entertainment Group, Inc. (2002) 103 Cal.App.4th 233, 243.) Again, plaintiff made no attempt to take this step to support his punitive damage claim.
Plaintiff argues defendant’s “failure to provide responses” to his prior discovery requests rendered further evidence of defendant’s financial condition unnecessary. Had plaintiff taken the steps cited above and defendant failed or refused to respond, this argument would have merit. But the prior discovery requests, form interrogatories, and requests for production of documents, did not seek information about defendant’s financial situation.
Plaintiff also claims he submitted evidence of defendant’s financial circumstances, citing documentation that showed defendant was in the United States Army when the police arrested him for the assault. This evidence clearly fails to support the punitive damage award. “What is required is evidence of the defendant’s ability to pay the damage award. [Citation.]” (Robert L. Cloud & Associates, Inc. v. Mikesell (1999) 69 Cal.App.4th 1141, 1152.) “In most cases, evidence of earnings alone [is] not sufficient . . . . [Citations.]” (Baxter v. Peterson (2007) 150 Cal.App.4th 673, 680.) “Normally, evidence of . . . expenses should accompany evidence of income.” (Ibid.) Furthermore, “A punitive damages award is based on the defendant’s financial condition at the time of trial. [Citations.]” (Kelly v. Haag, supra, 145 Cal.App.4th at p. 915.)
Plaintiff presented evidence that, when the assault occurred, defendant presumably had a source of income stemming from his military service. But he does not cite to anything in the record reflecting defendant’s income or the extent of his expenses, nor is there any indication defendant was still in the military or otherwise gainfully employed at the time of the prove-up hearing.
Finally, plaintiff claims that if the punitive damage award is reversed the trial court can “conduct a new prove[-]up hearing and enter a new judgment,” thereby “making the whole affair an exercise in futility.” But cases have held that where a party has “had ‘a full and fair opportunity to present his case for punitive damages, and . . . does not contend otherwise[]’ . . . no retrial of the issue is required. [Citation.]” (Baxter v. Peterson, supra, 150 Cal.4th at p. 681; see also Kelly v. Haag, supra, 145 Cal.App.4th at pp. 919-920.) Given plaintiff’s failure to take advantage of the opportunities to acquire evidence concerning defendant’s financial wealth, we conclude no retrial is necessary in this case.
DISPOSITION
The portion of the judgment awarding plaintiff punitive damages is reversed. In all other respects, the judgment is affirmed. Each party shall bear his own costs on appeal.
WE CONCUR: SILLS, P. J., FYBEL, J.