Becker v. S.P v. Construction Co.

Opinion

BIRD, C. J.

This court must decide whether a default judgment for $26,457.50 in damages, and $2,500 attorney’s fees, is void under Code

[492]

of Civil Procedure section 580 if the underlying complaint sought damages “in excess of $20,000. . .or according to proof,” punitive damages of $100,000, and costs.

I

Plaintiffs, Hugh Peter Becker and Ute I. Becker, appeal from an order vacating a default judgment against defendants S.P.V. Construction Company, Inc. (S.P.V.) and its president, George S. Soles. The case arose out of a contract for the construction of a residence for the Beckers by S.P.V. The Beckers asserted causes of action for breach of contract, fraud, and negligent misrepresentation.

On June 29, 1976, the summons and complaint were personally served on George Soles, individually and as president of S.P.V. Despite plaintiffs’ numerous attempts to secure a responsive pleading, the defendants failed to respond to the complaint. On January 14, 1977, plaintiffs mailed copies to defendants and their attorney of a request to the court to enter default. The court entered the default five days later.

On February 7, 1977, plaintiffs agreed to set aside the default and gave the defendants 15 additional days in which to respond to the complaint. Again, the defendants failed to respond. Accordingly, the defaults of both defendants were entered for the second time on August 10, 1977. Following a hearing and review of documentary evidence, judgment by default was rendered against defendants on November 7, 1977, for $26,457.50 compensatory damages, $2,500 attorney’s fees, and costs.

Over eight months later, on July 11, 1978, defendants moved to vacate the judgment on the ground that it exceeded the court’s jurisdiction under Code of Civil Procedure section 580.

1

That motion was granted without opinion on August 9, 1978. This appeal followed.

II

To determine the propriety of the defendants’ motion to vacate the default judgment, this court must look to the rules which govern collateral attacks on judgments since the defendants’ motion was not timely