Weakly-Holt v. Foster

Filed 10/21/14

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

KATHI WEAKLY-HOYT, F067626

Plaintiff and Respondent, (Super. Ct. No. 668595)

v. OPINION LAWRENCE H. FOSTER et al.,

Defendants and Appellants.

APPEAL from a judgment of the Superior Court of Stanislaus County. Hurl W. Johnson III, Judge. Bruce P. Grego for Defendants and Appellants. Arata, Swingle, Sodhi & Van Egmond and George S. Arata for Plaintiff and Respondent. -ooOoo-

Defendant appeals from a default judgment entered against him, contending his default was improperly entered because plaintiff failed to serve him with a statement of damages prior to entry of his default, which denied him his last opportunity to plead to the complaint and avoid a default. Because of the effect of the bankruptcy proceedings on the claims against defendant, we find no error in the trial court’s proceedings and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND Plaintiff filed a medical malpractice complaint against defendant, a plastic surgeon. Defendant did not answer the complaint, but apparently notified plaintiff that he had filed a bankruptcy proceeding. On January 24, 2012, plaintiff obtained an order from the bankruptcy court granting her relief from the automatic stay of proceedings against the debtor. The order permitted her to proceed with her action, “so long as recovery against debtor is limited to available insurance proceeds.” On July 19, 2012, plaintiff requested, and the trial court entered, defendant’s default. On April 1, 2013, plaintiff served on defendant’s insurer, with a courtesy copy to defendant, a notice of default hearing, accompanied by a statement of damages; the statement of damages requested $41,800 for future medical expenses, $1,400 for loss of earning capacity, and $250,000 for general damages. Plaintiff filed affidavits in support of her request for damages, including the affidavit of an expert witness, who opined that defendant’s care and treatment of plaintiff failed to meet the applicable standard of care, recommended further treatment to alleviate the effects of defendant’s negligence, and estimated the cost of such future care. Defendant appeared at the default hearing, attempted to file a trial brief, and orally argued that the matter could not proceed because he had not been served with a statement of damages and the matter was stayed by his bankruptcy proceeding. The trial court rejected defendant’s arguments, found plaintiff had proved her case, and awarded her damages totaling $293,240, plus costs. Defendant appeals from the judgment, contending plaintiff was required to serve him with a statement of damages before requesting entry of default, plaintiff did not comply with that requirement, and when she did serve a statement of damages, it acted as an amendment of the complaint, opened up his default, and entitled him to an opportunity to file a response to the complaint.