FLIER, J. —
Nam Min Cho appeals from an order denying his motion to set aside the default judgment in this action. Cho raises two main contentions, one relating to purportedly improper or fraudulent service of the summons and complaint, and the second relating to the amount of damages awarded in the default judgment. We find the first contention lacks merit but the second does not. We hold the default judgment is void because it exceeded the amount of damages stated in the complaint. Accordingly, we reverse and remand with directions.
Dulce Rodriguez filed a complaint on July 11, 2011, against defendants Cho and Reliable Building Maintenance (Reliable), alleging Cho did business as Reliable. The complaint alleged defendants employed Rodriguez as a "housekeeper" at the Los Angeles County courthouse in Pomona from September 2005 to November 2010. Rodriguez's husband also worked for defendants at the same location. When she finished her shift, she would stay and assist her husband with his cleaning. Defendants knew of her overtime work and did not object, and they did not pay her overtime.
In 2009, Rodriguez filed a claim with the Division of Labor Standards Enforcement (DLSE) seeking unpaid overtime wages. Maintenance Cooperation Trust Fund, a statewide watchdog organization that works to abolish illegal and unfair business practices in the janitorial industry, assisted her with the DLSE claim. She presented letters from witnesses in support of her claimed overtime hours. The deputy labor commissioner assigned to her case would not accept such letters, but wanted sworn affidavits or live testimony. The DLSE dismissed her claim. In July 2009, the Maintenance Cooperation Trust Fund sent defendants a letter stating the dismissal of Rodriguez's claim did not change the fact that her filing was a protected action under California law, and the law prohibited retaliating against her for the filing.
Rodriguez's coworker also filed a claim against defendants for unpaid overtime with the Maintenance Cooperation Trust Fund's assistance. In November 2010, Rodriguez's manager informed her that because she had filed a claim with the DLSE, and because she had inspired her coworker to likewise file a claim, defendants were terminating her effective November 18, 2010. Rodriguez alleged defendants' conduct caused her pain and suffering, extreme and severe mental anguish, and emotional distress, as well as a loss of earnings and other benefits and job opportunities.
The complaint alleged causes of action for retaliation under three different Labor Code sections (Lab. Code, §§ 98.6, 232, subd. (c), 1102.5, subd. (b)), violations of the Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.), and wrongful termination in violation of public policy.
The prayer for relief requested general, special, compensatory, and punitive damages in an amount to be proved at trial, a civil penalty in the amount of $10,000 (Lab. Code, § 1102.5, subd. (f)), civil penalties under PAGA, and reasonable attorney fees and costs.
In August 2011, Rodriguez filed proofs of service of summons on Reliable and Cho. The proofs showed that she served each with the complaint and a statement of damages, among other things. The sworn declaration of the registered process server showed he served Reliable on July 28, 2011, at 4:37 p.m., by personally serving the papers on Hang Bock Lee, Reliable's agent for service of process, at 3700 Wilshire Boulevard in Los Angeles.
The second sworn declaration of the same process server showed he served Cho on August 1, 2011, through substituted service on Kimmy Hanzaki, office manager, at 3200 Wilshire Boulevard in Los Angeles. The process server also mailed the papers through first class mail to the same location. The process server's due diligence declaration stated he had received the papers on July 27, 2011, and had been unable to effect personal service on Cho. He had attempted service on Cho at 3200 Wilshire Boulevard, his business address, three times (July 27 at 5:19 p.m., Aug. 1 at 8:00 a.m., and Aug. 1 at 3:33 p.m.). Each time, Cho was not in the office. Cho's residential address was not available.
The statement of damages served with the complaint disclosed that Rodriguez was seeking $1 million in general damages for emotional distress; $50,000 in special damages for lost earnings; $150,000 in special damages for loss of future earning capacity; and punitive damages in the amount of $2 million.
After Reliable and Cho did not respond to the complaint, the court entered the default of Reliable on September 13, 2011, and the default of Cho on
Rodriguez's prove-up in support of default judgment included, among other things, her and her counsel's sworn declarations attesting to the facts alleged in the complaint, the statement of damages, and the documents demonstrating proof of service described above. In addition, her prove-up documents showed she sent defendants a prelawsuit letter via certified mail at the 3200 Wilshire Boulevard address where she served Cho. The letter warned defendants that she would be filing this action and included the allegations of her forthcoming complaint. As for damages, her prove-up documents requested $23,680 in backpay with 10 percent prejudgment interest on that amount (or $2,368); $250,000 in general damages; $300 in civil penalties under PAGA; a $10,000 civil penalty against Reliable only under Labor Code section 1102.5; reasonable attorney fees; and $565 in costs.
On December 16, 2011, the court entered a default judgment for Rodriguez based on her written declaration under Code of Civil Procedure section 585, subdivision (d).
Over two years later, in April 2014, Cho filed a motion to set aside the default judgment. Cho's motion argued the default judgment was void because the amount of damages was excessive; Rodriguez did not demand an amount of damages in the complaint, and a default judgment may award only what the plaintiff demanded in the complaint. Although Rodriguez served a statement of damages, Cho argued this was irrelevant because a statement of damages applies only in personal injury and wrongful death actions, and this was not such. Further, Cho argued the declaration of the process server did not pass "the smell test," and he never received notice of the action until recently. Cho's declaration in support of the motion stated that he never received the summons and complaint, and the proofs of service were therefore untrue on their face. He also averred that, had he known of the action, he would have responded to and successfully defended against the action, as he had done with "several frivolous actions" Rodriguez had previously filed
Cho filed a supplemental declaration stating he had been diligently searching for Hanzaki, the office manager on whom the process server effected substitute service, but he had been unable to locate her. He also submitted a declaration of Lee, Reliable's agent for service of process. Lee declared he did not recall where he was on July 28, 2011, when the process server indicated he served Lee. Lee stated his calendar indicates he was out of the office in Fullerton, California, at the time. He further stated he did not receive the summons and complaint, and if he had, he would have given the papers to Cho.
The trial court denied Cho's motion to set aside the default judgment in a considered 15-page minute order issued in May 2014. The court held Cho had not rebutted the presumption of valid service established by the declaration of the registered process server. As such, he failed to prove extrinsic fraud sufficient to set aside the default judgment. Moreover, the default judgment did not award excessive damages. Rodriguez was not required to state the amount of damages in the complaint and could properly use the separate statement of damages for this.
Cho filed a timely notice of appeal. In June 2014, Rodriguez filed an acknowledgment of satisfaction of judgment declaring Cho had satisfied the judgment in full.
Additionally, the party seeking equitable relief on the grounds of extrinsic fraud or mistake must show three elements: (1) a meritorious defense; (2) a satisfactory excuse for not presenting a defense in the first place; and (3) diligence in seeking to set aside the default judgment once discovered. (Gibble v. Car-Lene Research, Inc., supra, 67 Cal.App.4th at p. 315.)
As to Reliable, the registered process server swore he had personally served Lee as Reliable's agent for service of process. A corporation may be served with a summons and complaint by personally delivering the documents to the person designated as its agent for service of process. (§ 416.10, subd. (a).) Cho failed to establish that Lee was not Reliable's agent for service of process. Instead, Lee said he did not remember where he was on the date of service, but he did not receive the summons and complaint. The court "was not required to accept this self-serving evidence contradicting the process server's declaration." (American Express Centurion Bank v. Zara, supra, 199 Cal.App.4th at p. 390.)
In addition to the lack of evidence that Rodriguez fraudulently or improperly served defendants, there was evidence that she attempted to give Cho notice of the lawsuit in other ways. She sent a prelawsuit letter via certified mail to Cho's business address that outlined her claims and warned she would be filing this action. And she served both defendants with the request to enter default at the addresses where she served the summons and complaint.
Moreover, even if evidence of extrinsic fraud existed, Cho did not establish he had a meritorious defense — a necessary element for equitable relief. (Gibble v. Car-Lene Research, Inc., supra, 67 Cal.App.4th at p. 315.) He attached a proposed answer to his motion reciting a kitchen sink full of affirmative defenses, but he did not attempt to demonstrate any of these defenses had merit by, for example, explaining the underlying facts and applying the law to them. On appeal, he contends for the first time that he has a meritorious defense because Rodriguez had no evidence that he, as opposed to Reliable, was her employer. This contention is not well taken. Rodriguez's prove-up package contained court documents from a small claims court action Cho filed against her in which he identified himself as "Nam Min Cho DBA Reliable Building Maintenance Company," and he referred to Reliable as "plaintiffs [sic] company." She further presented evidence of a payroll document and other correspondence from Reliable showing she was an
In short, there is no evidence Rodriguez did something fraudulent to prevent Cho or Reliable from responding to the summons and complaint, and Cho did not establish a meritorious defense anyway. The court did not abuse its discretion in denying him equitable relief from the default judgment.
Still, the motion to set aside the judgment should have been granted on the ground that the default judgment is void. A court generally may not grant a default judgment that exceeds the amount demanded in the complaint. (§§ 580, subd. (a), 585, subd. (b).) Pursuant to section 425.11, a different rule applies "[w]hen a complaint is filed in an action to recover damages for personal injury or wrongful death." (§ 425.11, subd. (b).) In such cases, the plaintiff may not state the amount demanded in the complaint, but must serve on the defendant a statement setting forth the nature and amount of damages. (§§ 425.10, subd. (b), 425.11, subds. (b), (c); Sakaguchi v. Sakaguchi, supra, 173 Cal.App.4th at p. 860.) Thus, in these cases, the court must limit its default judgment to the amount demanded in the statement of damages. (§§ 580, subd. (a), 585, subd. (b).)
Cho contends the default judgment is void because it exceeded the amount demanded in the complaint. Only the statement of damages served with the summons and complaint set forth the amount Rodriguez was seeking. Cho asserts the statement of damages cannot be the point of reference because this action is not one "to recover damages for personal injury or wrongful death." (§ 425.11, subd. (b).) Rodriguez disagrees, arguing an action for wrongful termination in violation of public policy constitutes an action to recover damages for personal injury. If Cho is correct that the statement of damages was irrelevant, the default judgment was indeed void. (Greenup v. Rodman, supra, 42 Cal.3d at p. 826; Levine, supra, 145 Cal.App.4th at p. 1137.)
Rodriguez argues that because Barton determined the primary interest protected was a personal right, the wrongful termination cause of action was a personal injury action within the meaning of section 425.11.
We are not persuaded. In Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418 [22 Cal.Rptr.2d 172] (Holmes), the court determined a cause of action for wrongful termination in violation of public policy was not a personal injury action, in the context of interpreting a statute worded similarly to the statute at issue here. (Id. at pp. 1426, 1436.) The issue was prejudgment interest under Civil Code section 3291. "Civil Code section 3291 ... requires a court to award prejudgment interest when a defendant refuses a plaintiff's Code of Civil Procedure section 998 settlement offer and the plaintiff later recovers a more favorable judgment." (Holmes, at p. 1435.) The statute expressly applies only to those actions "brought to recover damages for personal injury sustained by any person resulting from or occasioned by the tort of any other person, corporation, association, or partnership." (Civ. Code, § 3291, italics added.) The Holmes court had to determine whether the plaintiff's cause of action for wrongful termination in violation of public policy was a personal injury action within the meaning of the prejudgment interest statute. The court ultimately held that a "wrongful termination claim primarily involves the infringement of property rights, not personal injury." (Holmes, supra, at p. 1436.) The decision was guided by our Supreme Court's decision in Gourley v. State Farm Mut. Auto. Ins. Co. (1991) 53 Cal.3d 121, 127 [3 Cal.Rptr.2d 666, 822 P.2d 374] (Gourley), when the court determined an insurance bad faith action was one seeking recovery of a property right, not personal injury, and emphasized that the plaintiffs brought the action primarily to recover financial damages, while emotional distress damages were only incidental to the economic loss. (Holmes, supra, at p. 1436, citing Gourley, supra, at pp. 128-129.) Holmes determined a wrongful termination action was like the insurance bad faith action in Gourley, insofar as "it is the employer's violation of a public policy resulting in the loss of a tangible economic benefit (a job), rather than the invasion of a personal freedom interest, which primarily defines the action." (Holmes, at p. 1437, fn. 15.) Moreover, "the nature of a tortious wrongful termination action is not to vindicate the plaintiff's personal interest. Rather, the essence of such claim is to vindicate the public interest." (Id. at p. 1436.)
Rodriguez has filed a motion for sanctions on the ground that this appeal is frivolous. Given that we are reversing and remanding the judgment with directions, we cannot say the appeal is frivolous. The motion is denied.
The order is reversed. The matter is remanded with directions to vacate the judgment. Rodriguez may choose to simply accept a modified judgment, in which case the trial court shall enter a modified judgment not exceeding the amount demanded in the complaint. Alternatively, Rodriguez may amend her complaint to increase the amount of damages she is seeking, at which point defendants' default will be vacated. Cho shall recover costs on appeal.
Bigelow, P. J., and Grimes, J., concurred.