Hamm v. Elkin

Opinion

KING, J.

—In this case we hold that service of a statement of damages after taking a default but before entry of the default judgment did not satisfy the

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requirement of Code of Civil Procedure section 425.11 that a statement of damages must be served “before a default may be taken” in a personal injury case.

Kenneth Hamm filed a complaint alleging that Armón Elkin had punched him in the face. The complaint sought unspecified general and special damages and $100,000 punitive damages. Elkin was personally served on October 19, 1984.

Hamm filed a request to enter default in the amount of $100,000 plus costs on November 20, 1984. He filed a statement of damages (Code Civ. Proc., § 425.11) on January 7, 1985, specifying $100,000 punitive damages, $5,000 consequential damages, and “unknown” medical and special damages. Elkin failed to appear at the hearing on damages. On March 13, 1985, the court rendered a default judgment awarding Hamm $5,000 general damages and $5,000 punitive damages.

On May 16, 1985, Elkin moved for relief from the default. (Code Civ. Proc., § 473.) He admitted he had hit Hamm during an argument which arose while the two were attempting to park their cars; he had pleaded guilty to a criminal charge of battery and paid a $500 fine. Elkin asserted he had believed the civil suit could not result in a substantial damage award because Hamm had sustained no injuries, and he did not realize the suit might have serious consequences until he received the statement of damages.

The court granted the motion from the bench on June 14, 1985. Hamm filed a notice of appeal on August 13, 1985.

The superior court file does not contain a minute order setting aside the default and default judgment, although the court’s ruling on the motion is entered in the register of actions. Technically, no appealable order has yet been rendered. However, to dismiss the appeal merely for preparation of a minute order and a new appeal would be a waste of judicial time. The appropriate procedure is for us to order the superior court to enter, nunc pro tunc as of the date the motion was granted, a minute order setting aside the default and default judgment, and to treat the notice of appeal as a premature but effective appeal from that order.