Argame v. Werasophon

Opinion

SILLS, P. J.

Jennelyn Argame was a nurse at a medical center. In her complaint for sex discrimination, constructive discharge, assault and battery, and other causes of action, she alleges Dr. Somchai Werasophon, a staff physician at the center, subjected her to unwanted touching and verbal abuse. The complaint, as required by Code of Civil Procedure section 425.10, subdivision (b), did not state the amount of damages being demanded.

Pursuant to Code of Civil Procedure section 425.11, subdivision (b), the center and Dr. Werasophon served Argame with three different requests for

[618]

a statement of damages, but she never responded.

1

At trial, each defendant made a motion

in limine

to exclude evidence of damages because of Ar-game’s failure to serve a responsive statement. Argame’s attorney conceded she had not responded, but explained it was her standard practice to ignore those requests because, “I’m not. . . really good at evaluating the value of cases. And it’s always uncomfortable for me to come up with a dollar amount.” The court granted the motions. Since she was now prevented by those rulings from seeking anything but nominal damages, Argame stipulated to entry of judgment in order to facilitate an appeal as to their correctness.

2

Where a plaintiff who was properly served with a request for statement of damages fails or refuses to serve a responsive statement, Code of Civil Procedure section 425.11, subdivision (b) provides that the defendant may petition the court for an order that the plaintiff serve one. (See also Weil & Brown, Cal. Practice Guide: Civil Proc. Before Trial (The Rutter Group 1997) 18:1763, p. 8K-2.) Because the statute provides these defendants with a specific remedy, they must pursue it first before seeking any other relief which might be appropriate. Having elected not to make a motion to compel, defendants waived their right at trial to exclude evidence of damages.

3