Levine v. Smith

California Court of Appeal Dec 18, 2006 No. B191815Published

Before: Yegan

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Holding. The court held that a default judgment in a legal malpractice action is void if it exceeds the amount specifically demanded in the complaint, and such a judgment may be challenged as void in a separate enforcement proceeding in another county.

Issues

Whether a superior court in one county may set aside a default judgment rendered in another county as void.
Whether a statement of damages filed in a legal malpractice action satisfies the notice requirements of Code of Civil Procedure section 580.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the default judgment was set aside as void because it is greater than the amount demanded in her first amended complaint.”

“a default judgment greater than the amount specifically demanded is void as beyond the trial court's jurisdiction.”

“Strictly construed, serving a statement of damages cannot satisfy section 580 in an action not involving personal injury or wrongful death.”

52 Cal.Rptr.3d 197 (2006) 145 Cal.App.4th 1131 Carol Ann LEVINE, Plaintiff and Appellant,

Lawrence G. SMITH, Defendant and Respondent.

No. B191815. Court of Appeal of California, Second District, Division Six.

December 18, 2006. [198] Gregory T. May, for Appellant.

Lawrence O. Smith, in pro per, Respondent.

YEGAN, Acting P.J.

Carol Ann Levine appeals from a Santa Barbara Superior Court order setting aside her $2.5 million Alameda Superior Court default judgment. The default judgment was set aside as void because it is greater than the amount demanded in her first amended complaint. (Code Civ. Proc., § 580; Greenup v. Rodman (1986) 42 Cal.3d 822, 826, 231 Cal.Rptr. 220, 726 P.2d 1295.)[1] We affirm.

Facts and Procedural History

Respondent Lawrence G. Smith (respondent) is an attorney who represented appellant from 1995 to 1997 in a sexual harassment and gender bias action against the University of California (University). Respondent was appellant's third attorney and filed first and second amended complaints which were demurred to by University. Respondent urged Appellant to hire new counsel and was granted permission to withdraw as appellant's attorney.

In 2001, appellant sued respondent and her other attorneys in Alameda County Superior Court based on theories of professional negligence, breach of contract, and fraud. (Appellant v. Moriarty, et al., Alameda County Sup.Ct., Case No. 790398-8.) The sixteenth cause of action for emotional distress was also based on respondent's alleged failure to provide competent legal services. Like the other causes of action, it prayed for damages according to proof.

Respondent was served with the first amended complaint and a statement of damages (Code Civ. Proc., § 425.11), but did not file an answer. After a default was entered, he filed a motion to vacate the default. (Code Civ. Proc., § 473, subd. (b).) The Alameda County Superior Court denied the motion on the ground that it was untimely. A $2,501,733 default judgment was entered against respondent.

Approximately a year had a half later, appellant instituted a collection action in the Santa Barbara Superior Court (Levine v. Moriarty et al., Santa Barbara County Sup.Ct., Case No. 1110833), by filing an abstract of default judgment and an application to sell respondent's residence. (§ 704.750, subd. (b).) Respondent moved to set aside the default judgment on the ground that the damages awarded exceeded the amount pleaded in the Alameda County complaint. (§ 580.) Respondent further argued that the statement of damages

Levine v. Smith

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