Superior Court of the State of CaliforniaCity and County of San FranciscoNumber 891863Dian

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Superior Court of the State of CaliforniaCity and County of San FranciscoNumber 891863Diane Hegarty, Plaintiffv.Anton LaVey, DefendantORDER DENYING DEFENDANT'S MOTIONS TO SET ASIDE DEFAULT AND FOR NEW TRIAL, AND EXPLANATION OF DECISIONDefendant's motions for new trial and to set aside default judgment must be denied.1. Entry of default - Order of July 7, 1990.The entry of default was made by the court as a result of defendant's failure to participate in reasonable discovery. The order sanctioned defendant for misconduct and not because he had neglected to answer and appear in the action.The motion under Section 473 of the Code of Civil Procedure patently lacks merit because:-- a. It is not timely. The law requires that the application to set aside default must be made within six months after the order was taken. Over eleven months elapsed before defendant took any action. This alone is sufficient to deny his application.-- b. Defendant's application is not accompanied by any pleading. Obviously defendant would have a difficult time alleging he has a meritorious defense when his pleading has been stricken by the court for his unmeritorious conduct.-- c. There has been no excusable neglect, mistake, or surprise on the part of anyone. A complete examination of the file, as well as all of the documents produced in this proceeding reveal that defendant was fully apprised of everything that occurred.-- d. Defendant's attorney did not abandon him on the eve of trial. Defendant signed a substitution of attorney on December 12, 1989. Thereafter defendant received notices but did not hire an attorney until August 14, 1991. Significantly, when defendant received notice of this court's order of August 5, 1991, there apparently was no problem in finding a competent, enthusiastic attorney who managed to have his motions on file six days after being hired.Furthermore there is no sworn affidavit from the former attorney, Mr. Mayer, as required by Section 473 of the Code of Civil Procedure. In such affidavit the attorney is required to attest that he caused the defendant's default through inadvertence, surprise, or neglect. Mr. Own Mayer is listed in the 1991 directory of San Francisco lawyers at 44 Montgomery Street. He is likewise listed in the San Francisco telephone book at page 441. There can therefore be no contention that he is unavailable.The court specifically finds that the default did not result from the supposed mistake, inadvertence, or surprise of Mr. Mayer.-- e. Defendant's medical condition: Defendant's supposed poor health does not qualify as an excusable neglect. He has provided no medical records or declarations of medical doctors regarding the state of his health for the period prior to May 12, 1990, when he refused to submit to a deposition. In fact the medical records and declarations provided by the defendant show that he could have been deposed during this time.His records show that he was admitted to Children's Hospital emergency room on May 12, 1990 and was diagnosed with mild congestive heart failure; that his last EKG was in 1981; and that since that time defendant "did relatively well, with symptoms occurring in the last week to ten days". He attributes his high blood pressure to "white coat hypertension" in that his pressures would be 140 systolic at home at 180 in the doctor's office. At Children's he was prescribed reduced activity, heart diet, and follow-up checkups. No hypertensive medications had been prescribed for many years.On June 22, 1990 defendant was admitted to San Francisco General Hospital with similar symptoms and was diagnosed with congestive heart failure, not cardiac arrest. The hospital records state that defendant "was in his usual state of health until three weeks ago" and that "he is resistant to most efforts by physicians to initiate medical therapy" (emphasis added).Defendant has provided no other medical records, but has produced a prescription per request of his secretary dated August 20, 1991 for defendant to avoid "unnecessary stress".This court does not feel that this litigation can be avoided as an unnecessary stress. Aside from this self-serving declaration, defendant has provided nothing regarding his medical condition after July 3, 1990. Of interest, however, is a declaration stating that defendant was "on location for a video shoot sometime between November 1989 and September 1991, and that he 'delivered a flawless performance even when stricken with the flu'".This court therefore finds that the defendant's health was not the cause of his failure to attend to his legal business.2. Intrinsic fraud or mistake which prevented defendant from participating in the court proceedings.Defendant urges that there was some sort of "secret" agreement regarding his deposition which prevented him from participating in the court proceedings. However he admits in his declaration that he received notices after the substitution of attorneys was filed in December 1989, but that he turned over the entire responsibility of the lawsuit to Blanche Barton, his secretary. Barton states in her declaration that she had "no knowledge of deadlines"; however she corresponded with plaintiff's attorney regarding the notices of defendant's deposition and the notice of entry of default. Barton even sent $20 in payment of the $956 sanctions which defendant was apprised of in the notice of entry of default. At this point defendant had six months to move to set aside the default, and judgment on the default was not entered for another year.Barton also states that she continued to receive mail directed to defendant in 1990 and 1991. Upon receipt of the notice of entry of judgment, she "promptly" obtained counsel.For the first time defendant and his secretary state in their declarations problems with mailbox vandalism. In all of the documents between the parties over the past two years, there was no mention of this problem. In fact, if there were such problems, defendant's daughter could not reasonably rely upon the fact that she received no correspondence from the plaintiff's attorney in response to her letter of August 30, 1990 regarding a conservatorship. It was certainly not plaintiff's responsibility to monitor defendant's mailbox.Defendant declares that he sent a letter to a judge on April 23, 1990, but he does not say what judge or provide a copy of the letter as an exhibit.Of particular interest is a letter dated June 6, 1990 from Barton to plaintiff's attorney. This letter made reference to plaintiff's demands and the subject property agreement, and proposed an alternate settlement plan. This letter also threatens plaintiff with action by "blind zealots" of defendant's church should she persist with her lawsuit.Thus defendant's contention that there was intrinsic fraud which prevented him from participating in this lawsuit plainly has no merit. He says: "I avoided any involvement with the pending lawsuit, assuming that it would be postponed until I was able to recover enough to submit to court proceedings, and that if anything happened I would be treated fairly."3. The August 5, 1991 prove-up hearing:Notices of all proceedings were served on defendant by mail. He now asserts, however, that he should have been personally served with a statement of damages pursuant to Section 425.11 of the Code of Civil Procedure. Section 425.11 requires such a statement of damages, before a default judgment may be taken, in a personal injury or wrongful death action. Plaintiff's action is primarily for breach of contract, specific performance, fraud and deceit, rescission, partition, declaratory relief, and emotional distress. The judgment of August 5, 1991 did not award any damages for emotional distress. Thus this court finds that the plaintiff's cause of action for emotional distress is incidental. Where an emotional distress claim is incidental to the case, it will not be considered "an action to recover damages for personal injury". (Cf. _Schwab v. Rondel Homes, Inc._, 53 Cal.3d 428, 432 (2a).)Therefore the defendant was not entitled to personal service of a statement of damages. This is not the ordinary case where a defendant has merely failed or neglected to answer a complaint. Here the defendant not only answered, but he filed his own cross-complaint. There is therefore no reason to give him "one last clear chance" to respond inasmuch as it has already been determined that he is not entitled to any further privileges because of his own misconduct. Like the court of appeal in _Beeman v. Burling_, 216 Cal.App.3d 1586, 1594, this trial court can see no reason to require service of a statement of damages on a person who has already appeared in the case and who has been found guilty of disregarding the procedure of the court and the duties of a diligent, good-faith litigant.Finally no irregularity can be found in the default or the trial proceedings. However, even if there were something procedurally wrong with the manner in which the August 5th judgment were entered, the defendant has forfeited his right to appear and defend. His answer has been stricken, and his default was entered long ago. Thus, even if the court were to set aside the August 5th judgment, nothing beneficial to the defendant would accrue. All the court can do is order the plaintiff to send out another notice of time and place of trial and then proceed with the testimony all over again. Defendant would have no right to participate in that trial. It would be a waste of time.4. The prayer and body of the complaint:Although not addressed in defendant's moving papers, it appears that the only relevant issue in this case is the fact that the prayer of plaintiff's first amended complaint did not specifically quantify damages. (Section 425.10(b), Code Civ. Proc.)The first amended complaint did specify amounts in the body of the complaint in the 4th, 6th, and 8th causes of action, but defendant's demurrer was sustained as to the 4th and 8th causes of action. Defendant subsequently answered. The court must now determine if the monetary amount in the judgment awarded to plaintiff is limited to $300,000 as specifically stated in the 6th cause of action.In _Becker v. S.P.V. Construction Co._, 27 Cal.3d 489, 494 the Supreme Court had before it a case involving breach of a construction contract. The defendants failed to respond to the complaint, and a default judgment was entered. Over eight months after entry of the judgment, the defendants moved to vacate the judgment on the ground that it exceeded the court's jurisdiction under Section 580 of the Code of Civil Procedure. The motion was granted by the trial court. The Supreme Court, in remanding the case with instructions, pointed out that the motion was not timely under Section 473 of the Code of Civil Procedure; however that a collateral attack was appropriate if the trial court actually had no power to enter a default judgment other than in conformity with Section 580. The prayer in the _Becker_ case requested compensatory damages in an amount in excess of $20,000 and punitive damages of $100,000. The body of the complaint was for $20,000 compensatory damages. The Supreme Court concluded that the trial court exceeded its authority by entering a judgment for $26,457 and ordered it to modify the judgment by striking the award of damages in excess of $20,000.In _Greenup v. Rodman_, 42 Cal.3d 822, 829, 830 the Supreme Court had before it a case similar to the instant case. In Greenup the defendant's answer was stricken as a sanction for discovery abuses in a dispute involving a minority shareholder's complaint. In the prayer of the complaint, plaintiff requested $100,000 in exemplary and punitive damages and other damages "in a sum that exceeds the jurisdictional requirements" of the superior court. The Court of Appeal held that the default for discovery violations exempted the case from the limit on damages on default judgments. The Supreme Court reversed, declaring that a default judgment exceeding the demand must be reduced to conform to the limitations specified in Section 580 of the Code of Civil Procedure.It is to be noted, however, that the present case differs in many respects from the above Supreme Court decisions. In the first place plaintiff's attorney did serve on defendant a statement of damages. Secondly the complaint here is specific about the other relief demanded. Plaintiff wants her share of a residence and a business, and that is exactly what this court has ordered except for $47,000 for rents, $30,000 for attorney's fees, and $175,000 punitive damages.Also of interest here is the case of _Mikail v. Sauerwald_, 227 Cal.App.3d 1090. This was an action for personal injuries wherein the defendant answered, but her answer was stricken because of discovery misdeeds. A default judgment was entered for $250,000, but upon defendant's motion it was reduced to $25,000. Since it was a personal injury case, the trial court and the Court of Appeal felt that a statement of damages had to be personally served on the defendant. The statement was in fact served on defendant's attorney. The Supreme Court granted review in Mikail; on August 8th of this year, however, it was dismissed as having improvidently been granted pursuant to Rule 29.4 and was remanded to the Court of Appeal. On September 5, 1991 the Court of Appeal readmitted the case to the trial court with instructions to reinstate the plaintiff's original judgment.In light of the above discussion, there appears to be some ambiguity in the decisional law where there is only a monetary judgment. In the present case, however, we need not be overly concerned about the actual money, except for the amount of the attorney's fees. The amount of punitive damages is appropriate because it does not exceed more than three times the actual damages. Defendant cannot in any manner content that he did not have actual notice of what plaintiff was demanding. She filed a complaint and an amended complaint to which defendant responded. He was well aware of what was at stake from the outset of this litigation. He was given notice of the prove-up hearing. Yet in spite of having two months to obtain counsel, no one - not defendant, his personal secretary, nor his daughter Karla - appeared for that hearing.Accordingly this court finds that plaintiff's judgment is valid and should not be set aside, except that there should be a hearing on the amount of attorney's fees awarded to plaintiff's attorney.Finally, for future reference and possible review by the Court of Appeal, this court specifically finds that defendant's conduct has been calculated and designed to prevent plaintiff from obtaining her rights to the jointly-owned real and personal property. He has disobeyed a court order and has suffered the consequences. He now seeks relief from the very court for which he has shown contempt in the past. The August 5, 1991 judgment has caused him to change

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