Petty v. Manpower, Inc.

Opinion

WHITE, P. J.

Respondent, plaintiff below, filed a complaint in Monterey County Superior Court on October 13, 1977, serving appellant-defendant through its agent for service of process, C. T. Systems Corporation, on October 20, 1977. On November 4, appellant’s liability insurance carrier discussed the case with respondent’s attorney and requested an extension of time in which to plead. A 26-day extension, until December 15, was granted in which to answer. On November 18, appellant’s liability insurance carrier sent the summons and complaint to appellant’s workers’ compensation carrier and apparently disassociated itself from the case. When no answer was filed by December 15, respondent’s attorney filed a request for default on December 16, which was entered that same day.

The complaint filed by respondent alleges in relevant part that the activities of appellant were responsible for “great physical damage, pain and mental anguish” being inflicted upon respondent. It further alleges that respondent “incurred medical expenses and hospital bills in an amount which has not as yet been specifically ascertained. . . .” The prayer “prays for judgment. . [¶] 1. For general and special damages; [¶] 2. For costs of suit; and [¶] 3. For such other relief as the Court may deem just.” A review of the clerk’s transcript reveals that respondent failed to comply with the mandate of section 425.11 of the Code of Civil Procedure. Respondent did not file a statement notifying appellant of the amount of special and general damages sought to be recovered. Moreover, the record reveals that respondent’s written request to enter default (form adopted by the Judicial Council of California, revised effective July 1, 1975) left totally blank the “amount” of “judgment to be entered.”

[797]

Appellant moved to set aside the default on January 3, 1978, and when the motion was denied, moved for reconsideration on February 7, 1978. This motion was denied and the default reaffirmed.

Appellant petitioned this court for a writ of prohibition/mandamus which was denied on February 28, 1978. On March 1, 1978, a judgment hearing was held, testimony taken, and the trial court rendered judgment in favor of respondent for $150,000 plus costs. The judgment was entered on March 2, 1978 and this timely appeal from the judgment was filed on March 6, 1978. Appellant also is appealing from the order denying the motion to vacate the default and the motion for reconsideration after prior refusal. We point out that no appeal lies from the denial of a motion to vacate default, although such a ruling can be reviewed on appeal from the judgment. (See