Filed 6/30/14
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
DEPARTMENT OF FAIR
EMPLOYMENT & HOUSING,
Plaintiff and Respondent, A136607
v. (Alameda County
HARVEY OTTOVICH, Individually and Super. Ct. No. RG08368372)
as Trustee, etc.,
Defendant and Appellant.
The Department of Fair Employment and Housing (the Department) brought this
action against defendant Harvey Ottovich1 alleging he engaged in housing discrimination.
After Ottovich engaged in abusive discovery tactics, the trial court sanctioned him by
striking his answer to the complaint and entering a default judgment. The trial court later
vacated the default, but continued to treat the answer as stricken. Treating the
unanswered allegations of the complaint as judicially admitted, the trial court granted
summary judgment to the Department on the issue of liability. A jury then assessed
damages at $8,705. Ottovich has appealed the ensuing judgment. His primary contention
is that the trial court was required to reinstate his answer at the time it vacated the default
judgment. We shall affirm the judgment.
*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part II.B.
1
The named defendant is Harvey Ottovich, as an individual, as the trustee of the
Harvey G. Ottovich Revocable Living Trust, and as beneficiary of the Harvey G.
Ottovich Revocable Living Trust. We shall refer to defendant as “Ottovich.”
1
I. BACKGROUND
In this action, the Department alleged that Ottovich owned or managed an
apartment building in Fremont, California. He posted an advertisement for an apartment
available for rent, and real party in interest Diane Coleman2 called him and expressed
interest in the apartment. He asked who would be living in the apartment, and she told
him she, her husband, and their young daughter would live there. Defendant responded
that he would not rent the apartment to her. Coleman told defendant, “That’s
discrimination.” He replied that he did not have to show her the apartment or rent it to
her, and he hung up.
The complaint alleged Ottovich’s actions violated Government Code
section 19255, under which it is unlawful for the owner of a housing accommodation to
discriminate against anyone based on, inter alia, familial status. In its prayer for relief,
the Department asked the court to order Ottovich to pay damages to compensate real
parties “in an amount to be proven at trial,” as well as treble damages pursuant to the
Unruh Civil Rights Act (Civ. Code, § 51) “in no case less than four thousand dollars.”
The record on appeal does not include the original complaint. Ottovich answered
the complaint on September 25, 2008. The Department filed its first amended complaint
on November 26, 2008. It appears that Ottovich did not answer the first amended
complaint.3 Instead, Ottovich moved to dismiss the complaint as a Strategic Lawsuit
Against Public Participation (SLAPP) pursuant to Code of Civil Procedure4
2
The real parties in interest are Diane Coleman, individually and as guardian ad
litem for Ronnaia Coleman, and Ronald Coleman.
3
Ottovich avers in his opening brief on appeal that he assumed his answer to the
original complaint would also serve as an answer to the first amended complaint, and that
the Department did not alert the court to the omission or seek a default on that basis. The
Department acknowledges that the trial court implicitly treated the initial answer as the
answer to the first amended complaint as well, and does not suggest this omission has any
effect on the outcome of this appeal.
4
All undesignated statutory references are to the Code of Civil Procedure.
2
section 425.16. The trial court denied this anti-SLAPP motion, found it was frivolous,
and awarded plaintiff $2,500 pursuant to section 425.16, subdivision (c).
The Department propounded discovery requests to Ottovich. In November 2008,
the trial court granted the Department’s motion to compel responses to form
interrogatories and requests for production of documents, awarded sanctions of $375, and
advised Ottovich that “failure to comply with this Order or further discovery abuse may
result in further sanctions, including monetary, evidentiary, issue, and terminating
sanctions.” In April 2009, the court granted the Department’s motion to compel
responses to its request for production of documents, and awarded sanctions of $250.
The Department moved for terminating sanctions in June 2009 on the ground that
Ottovich had committed discovery abuses. In support of the motion, the Department
submitted evidence that Ottovich had failed to comply with discovery requests, had
violated the court’s orders compelling discovery, and had been found in contempt for
failing to attend a case management conference. The court granted the motion, ordering:
“Defendant’s Answer filed September 25, 2008 is STRICKEN, and Defendant Harvey
Ottovich is DEFAULTED from this action.”
The Department filed a Statement of Damages (§ 585) in September 2009,
claiming $55,000 in damages for emotional distress, trebled pursuant to the Unruh Act
($165,000 total), $5,588.53 for the costs of hotel stays, restaurant meals, and storage,
trebled pursuant to the Unruh Act ($16,765.59 total), and $100,000 in punitive damages.
After a default prove-up hearing in October 2009, the trial court awarded total damages
of $242,354.12, and ordered judgment entered accordingly.
Ottovich moved to vacate the judgment in December 2010. As he argued, section
425.11 requires a plaintiff in an action for personal injury or wrongful death to serve a
statement of damages on a defendant before a default may be taken. (§ 425.11, subd.
(c).) Because the Department had failed to do so, he contended, the default judgment was
void. The Department did not oppose the motion, and the trial court granted it on January
20, 2011, ruling: “The Court HEREBY VACATES the October 13, 2009 Default
3
Judgment . . . and the portion of the July 23, 2009 Order Entering Default against
Defendant pursuant to CCP § 2023.030(d).”
Ottovich did not seek to reinstate his original answer or file an answer to the first
amended complaint. In July 2011, the Department moved for summary judgment,
arguing that Ottovich’s failure to answer the allegations of the complaint acted as a
judicial admission of the truth of those allegations. (§ 431.20, subd. (a).) In his
opposition to the motion, Ottovich argued in part that when the trial court vacated the
default, his answer was reinstated as a matter of law. In the alternative, Ottovich
requested leave to file an answer and for a continuance of the hearing on the summary
judgment motion. The trial court granted the motion for summary judgment. In doing
so, the court stated that in its order setting aside the default, it had “specifically declined
to set aside its order striking the Answer of Defendant Ottovich due to the pattern of
discovery misuse shown in the Motion for Terminating Sanctions.” The court entered an
“Interlocutory Judgment Establishing Defendants’ Liability Pending Determination of
Damages.”
Ottovich moved for reconsideration of the order granting summary judgment. He
argued that, as a matter of law, his answer to the complaint was reinstated when the
default judgment was vacated, and, in the alternative, that his attorney’s mistake in
believing the answer would be considered reinstated was the result of mistake or
excusable neglect. The motion included a declaration of Ottovich’s attorney stating that
by the time the trial court vacated the default judgment in January 2011, he had forgotten
that no answer to the first amended complaint had been filed, that he believed the court’s
order necessarily reinstated the previously filed answer, and that he would have filed an
answer if he had believed it was necessary. The trial court denied the motion for
reconsideration, ruling that Ottovich had not shown any new or different facts,
circumstances, or law, and—even if such facts existed—had not shown that he could not
have brought them to the court’s attention before the initial order granting summary
judgment in the exercise of reasonable diligence.
4
A jury trial was held on the amount of the real parties’ damages. The jury found
the damages totaled $8,705, and judgment was entered accordingly.
II. DISCUSSION
A. Reinstatement of Answer
Ottovich contends that when the trial court vacated his default, it also implicitly
reinstated his answer. The order granting terminating sanctions read in its entirety: “The
tentative ruling is affirmed as follows: Plaintiff’s unopposed Motion for Terminating
Sanctions is GRANTED, based on Defendant’s failure to comply with, inter alia, the
Court’s Orders entered November 26, 2008 and April 16, 2009. Defendant’s Answer
filed September 25, 2008 is STRICKEN, and Defendant Harvey Ottovich is
DEFAULTED from this action.” We agree with the trial court that its January 20, 2011
order vacating the default judgment, “and the portion of the July 23, 2009 Order Entering
Default against Defendant” by its terms left intact the portion of the earlier order striking
Ottovich’s answer.
Ottovich argues in the alternative that the trial court erred by failing to reinstate
the answer when it vacated the default. He argues, relying on Matera v. McLeod (2006)
145 Cal.App.4th 44 (Matera) that vacating the default without reinstating the answer
failed to provide meaningful relief. We conclude Matera does not control on the facts
presented here.
Section 2023.030 authorizes a court to impose sanctions for misuse of the
discovery process. In addition to authorizing monetary sanctions and issue sanctions
(§ 2023.030, subds. (a) & (b)), it provides in part: “(d) The court may impose a
terminating sanction by one of the following orders: [¶] (1) An order striking out the
pleadings or parts of the pleadings of any party engaging in the misuse of the discovery
process. [¶] . . . [¶] (4) An order rendering a judgment by default against that party.”
It is well settled that a plaintiff may not take a default against a defendant without
giving the defendant actual notice of the amount of damages claimed. (Schwab v. Rondel
Homes, Inc. (1991) 53 Cal.3d 428, 430.) In general, this notice is found in the complaint
or cross-complaint. (§ 425.10, subd. (a).) However, where, as here, an action is brought
5
to recover damages for personal injury, the amount of damages claimed may not be stated
in the complaint. (§ 425.10, subd. (b).) Instead, the defendant “may at any time request a
statement setting forth the nature and amount of damages being sought. (§ 425.11, subd.
(b).) If the defendant does not make such a request, “the plaintiff shall serve the
statement on the defendant before a default may be taken.” (§ 425.11, subd. (c).) Thus,
“[n]ot only is a default judgment for an amount greater than that specifically demanded
void, but when a statement of damages is required but not served, the underlying entry of
default is invalid also and is subject to set-aside.” (Van Sickle v. Gilbert (2011) 196
Cal.App.4th 1495, 1521.)
For purposes of this rule, a default taken after the answer to a complaint is stricken
as a discovery sanction is treated the same way as a default taken after the defendant fails
to answer the complaint. (Greenup v. Rodman (1986) 42 Cal.3d 822, 824–829
(Greenup).) The question before the court in Greenup was “whether a default judgment
entered as a discovery sanction is excepted from the general rule that ‘if there be no
answer’ filed, the plaintiff’s relief ‘cannot exceed that which he shall have demanded in
his complaint . . . .’ (Code Civ. Proc., § 580.)”5 (Id. at p. 824.) The court concluded:
“The rationale . . . that striking the answer renders it a nullity [citation], applies equally
when the answer is stricken [as a discovery sanction]. It is true that sections 586, 585,
and 580, which together govern default judgments, do not explicitly list answers stricken
pursuant to [former] section 2034 as proceedings in which default judgment is rendered
‘as if the defendant had failed to answer . . . .’ (§ 586.) Yet unless and until the
Legislature specifically provides a separate procedure for defaults after discovery
5
Section 580 currently provides in pertinent part: “The relief granted to the
plaintiff, if there is no answer, cannot exceed that demanded in the complaint, in the
statement required by section 425.11, or in the statement provided for by section 425.115
[regarding punitive damages]; but in any other case, the court may grant the plaintiff any
relief consistent with the case made by the complaint and embraced within the issue.” At
the time of the Greenup opinion, it provided: “The relief granted to the plaintiff, if there
be no answer, cannot exceed that which he shall have demanded in his complaint; but in
any other case, the Court may grant him any relief consistent with the case made by the
complaint and embraced within the issue.” (Greenup, supra, 42 Cal.3d at p. 824, fn. 1.)
6
sanctions, these sections remain the sole statutory procedures for default judgments. . . .
We conclude that the damages awarded must be limited by the terms of the same section:
when an answer is stricken as a sanction for the defendant’s obstruction of discovery, it is
as if no answer had been filed in the first instance.” (Greenup, supra, 42 Cal.3d at
p. 828.)
Here, the Department did not file a statement of damages before default judgment
was entered; recognizing the impropriety of this procedure, the trial court later vacated
the default while leaving intact its order striking Ottovich’s answer. The question before
us is whether the trial court was required to reinstate the answer as a matter of law.
Ottovich contends this question is governed by Matera, supra, 145
Cal.App.4th 44. As a sanction for abusive discovery practices, the trial court there
ordered the defendants’ answer stricken, entered their defaults, held a prove-up hearing,
and entered a default judgment. (Id. at pp. 52–53.) On appeal, the defendants argued that
the default judgment was void because plaintiffs had failed to provide actual notice of the
amount of damages they sought a reasonable time before the entry of defaults. (Id. at
p. 59.) The plaintiffs did not allege any amount of damages in their complaint, and first
served their statement of damages two days before the hearing on the motion for
terminating sanctions and entry of default. (Ibid.) The Court of Appeal concluded this
short notice did not comport with due process, and the default judgment was therefore
void. (Id. at pp. 60–62.) The Matera court went on: “The striking of a defendant’s
answer as a terminating sanction leads inexorably to the entry of default. [Citations.] To
vacate the defaults without reinstating defendants’ answer would be an empty gesture.
We therefore conclude that the order striking the answer must be vacated and the answer
reinstated.” (Id. at p. 62.)
The Department distinguishes the rule of Matera, arguing that, in practice, a
default “need not follow immediately upon the heels of the striking of an answer. Rather,
as here, the striking of the answer may simply resolve liability issues, while the defendant
retains the right to litigate damages.” This procedure, the Department argues, was
7
approved in Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613
(Johnson).
In Johnson, as a sanction for discovery abuses, the trial court struck the
defendant’s answer except as to the issue of damages. (Johnson, supra, Cal.App.4th at.
p. 621 & fn. 8.) The court then granted summary adjudication of the defendant’s liability
on each cause of action, and a jury trial on the issue of damages was held. (Id. at pp.
621–622.) The complaint had sought damages “in excess of Twenty-Five Thousand
Dollars [] according to proof”; the jury awarded $4.9 million in damages. (Id. at pp. 617,
622.) Relying on Greenup, the defendant contended that, rather than compelling it to
litigate the damages issue, the trial court should have ordered a default prove-up hearing
and limited the plaintiffs’ recovery to the $25,000 jurisdictional limit pleaded in the
complaint. (Id. at p. 623.)
The Court of Appeal rejected this contention. It found Greenup “inapt” because
the trial court there not only struck the answer but also entered a default judgment in an
amount exceeding the prayer in the complaint. The Supreme Court granted review “ ‘to
consider whether a default judgment entered as a discovery sanction is excepted from the
general rule that “if there be no answer” filed, the plaintiff’s relief “cannot exceed that
. . . demanded in [the] complaint . . . .” ’ ” (Johnson, supra, 28 Cal.App.4th at p. 623,
citing Greenup, supra, 42 Cal.3d at p. 824.) The rule of Greenup, the Johnson court
concluded, was limited to cases of default. (Johnson, supra, 28 Cal.App.4th at pp. 623–
624.) The court went on to note that the defendant “was in no different position than any
defendant who admits liability, but disputes damages; who answers the allegations
concerning damages, but fails to answer the liability allegations; or who has suffered an
adverse summary adjudication of the issue of liability. In none of those instances is there
a default—or a default prove-up hearing. Here, where there was no entry of default, a
default prove-up hearing would have been not only inappropriate, but unauthorized. The
court could not have excluded [the defendant] from proceedings to determine plaintiff’s
damages. It therefore correctly conducted an adversarial jury trial on the only issue
remaining, i.e., the extent of plaintiffs’ damages.” (Id. at pp. 624–625.)
8
The procedural posture of this case lies somewhere between Johnson and Matera.
The trial court’s January 20, 2011 order vacating the default left intact the portion of the
order striking Ottovich’s answer to the complaint (not, as in Johnson, only a portion of
the answer). But, as in Johnson, the court also kept alive the issue of damages, and
Ottovich was able to defend that issue fully—so successfully, in fact, that rather than the
damages of nearly a quarter of a million dollars originally awarded at the default prove-
up hearing, the jury awarded total damages of less than $9,000.6
A close reading of Greenup suggests this result comports with due process. In
arguing that defaults entered as a discovery sanction should not be subject to the same
rules as those entered as a result of a failure to answer a complaint, the plaintiff relied on
federal cases upholding judgments that exceeded the demand of the complaint.
(Greenup, supra, 42 Cal.3d at p. 828.) Our high court rejected this argument, stating,
“Plaintiff overlooks a crucial difference between state and federal procedures in default
judgments: . . . federal defendants who default are entitled to a minitrial on the sole issue
of damages. [Citations.] Unlike the ex parte hearing provided for by section 585
[citation], the hearing in federal court is a full-fledged adversarial contest. [¶] It is here
that plaintiff’s analogy to federal law . . . breaks down: under section 585 there is no
contest whatever once a defendant defaults. [Citation.] We conclude that due process
requires notice to defendants, whether they default by inaction or by willful obstruction,
of the potential consequences of a refusal to pursue their defense. Such notice enables a
defendant to exercise his right to choose—at any point before trial, even after discovery
has begun—between (1) giving up his right to defend in exchange for the certainty that
he cannot be held liable for more than a known amount, and (2) exercising his right to
defend at the cost of exposing himself to greater liability.” (Id. at pp. 828–829.) Here, of
course, Ottovich was entitled to a full-fledged adversarial proceeding on the issue of
6
We also note that this result was exactly what Ottovich asked for in his motion to
vacate the judgment. He argued that the default judgment was void, and that “[t]he
proper procedure would have been for Judge True to strike Harvey Ottovich’s answer,
and then for plaintiff to serve a Statement of Damages.”
9
damages, thus obviating our Supreme Court’s due process concerns where such a trial
was not available.
This result is also consistent with the statutory scheme. Section 2023.030,
subdivision (d) authorizes a trial court to impose various types of terminating sanctions,
including “[a]n order striking out the pleadings or parts of the pleadings of any party
engaging in the misuse of the discovery process” (§ 2023.030, subd. (d)(1)) and “[a]n
order rendering a judgment by default against that party” (§ 2023.030, subd. (d)(4)).
Thus, the statute does not appear to treat an order striking a party’s pleadings as
equivalent to a default.
Here, as in Johnson, defendant remained able to appear in the action and protect
his interests in the trial on damages. In effect, Ottovich was in the same position as he
would have been if the trial court had ordered issue sanctions; that is, his liability was
established, but he remained able to participate in the proceedings and contest the issue of
damages. In these circumstances, we conclude the trial court was not required to
reinstate his answer when it vacated the default judgment.7
B. Denial of Motion for Reconsideration
Ottovich also contends the trial court abused its discretion in failing to grant relief
under section 473. This argument appears to challenge the denial of his motion for
reconsideration of the order granting summary judgment, in which Ottovich argued, inter
alia, that his failure to amend his answer was due to his attorney’s excusable mistake in
believing the answer had automatically been restored when the trial court set aside the
default and vacated the default judgment. In support of his motion, Ottovich submitted
his counsel’s “declaration of fault” stating that after the motion to vacate the judgment
was granted, both he and Ottovich had forgotten that no answer to the first amended
7
Ottovich contends in his reply brief that section 2023.030 authorizes a trial court
to impose only one terminating sanction, not more than one in the same case. He also
argues in his reply brief that the trial court created an “impermissible [c]onditional
[t]erminating sanction.” We will not consider contentions raised for the first time in a
reply brief. (Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 548.)
10
complaint had been filed, that he believed the trial court had necessarily reinstated
Ottovich’s answer to the original complaint, and that if he had believed it was necessary
to amend the answer on file in order to protect Ottovich from a motion for summary
judgment, he would have done so.
In denying the motion for reconsideration, the trial court ruled that reconsideration
was not warranted under section 1008, subdivision (a), because Ottovich had not shown
either that new or different facts, circumstances, or law existed or that he could not have
brought any such circumstances to the court’s attention by the exercise of reasonable
diligence prior to the initial order granting summary judgment.8 As explained in New
York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212, “Section 1008,
subdivision (a) requires that a motion for reconsideration be based on new or different
facts, circumstances, or law. A party seeking reconsideration also must provide a
satisfactory explanation for the failure to produce the evidence at an earlier time.
[Citation.] A trial court’s ruling on a motion for reconsideration is reviewed under the
abuse of discretion standard.” Ottovich makes no attempt to show on appeal that new or
different facts or law existed, that he could not have brought any such changes to the
court’s attention before it ruled on his motion for summary judgment, or that he met the
requirements of section 1008 in any other way. Accordingly, he has failed to meet his
burden on appeal to show error.
Even if we were to treat Ottovich’s motion for reconsideration as a request under
section 473 for leave to file an answer, we would reject his contention. Section 473,
subdivision (b), provides in pertinent part: “The court may, upon any terms as may be
just, relieve a party or his or her legal representative from a judgment, dismissal, order or
other proceeding taken against him or her through his or her mistake, inadvertence,
surprise, or excusable neglect. . . . Notwithstanding any other requirements of this
8
Section 1008, subdivision (a) provides that a party may seek reconsideration of
an order “based upon new or different facts, circumstances, or law,” and that the party
must state by affidavit “what new or different facts, circumstances, or law are claimed to
be shown.”
11
section, the court shall, whenever an application for relief is made no more than six
months after entry of judgment, is in proper form, and is accompanied by an attorney’s
sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate
any (1) resulting default entered by the clerk against his or her client, and which will
result in entry of a default judgment, or (2) resulting default judgment or dismissal
entered against his or her client, unless the court finds that the default or dismissal was
not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”
We are unpersuaded that the trial court abused its discretion in not allowing
Ottovich to file a new answer under the first part of this subdivision, which provides for
discretionary relief. (See Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 681.)9 Ottovich
argues that the requisite “mistake, inadvertence, surprise, or excusable neglect” can be
found in his belief that his answer was automatically reinstated when the trial court
vacated the default. He argues that between the time the trial court lifted the default and
the time the Department brought its motion for summary judgment, both the trial court
and the Department proceeded as if the matter were going to trial, and thus “lulled” him
into believing the answer had been implicitly revived; if he had realized that was not the
case, he contends, he would have applied earlier to reinstate the answer. However, he has
made no attempt to show either that the trial abused its discretion in striking his answer in
the first place or that this discovery sanction was imposed as a result of his “mistake,
inadvertence, surprise, or excusable neglect.” (§ 473, subd. (b).) Nor has he shown that
his counsel’s mistake in failing to seek leave earlier to file a new answer prejudiced
him—that is, that the trial court would have lifted that discovery sanction, allowed him to
file an answer, and denied the motion for summary judgment if he had made the request
earlier—and we see no basis for such a conclusion.
Finally, we reject Ottovich’s argument that the interests of justice require the
reversal of the judgment because he has a valid defense to the action and because public
9
The second part of this subdivision—providing for mandatory relief from default
upon a proper showing—is inapplicable here because the trial court vacated the default it
originally entered against Ottovich.
12
policy favors the resolution of disputes on their merits. Our Legislature has authorized
trial courts to issue terminating sanctions for discovery abuses (§ 2023.030), and the very
nature of such sanctions is that a defendant will be precluded from asserting otherwise
legitimate defenses. (See Johnson, supra, 28 Cal.App.4th 613, 627, fn. 19 [“an issue
sanction can implicitly preclude a defendant from presenting an otherwise perfectly
legitimate defense that is inextricably intertwined with the issue which the defendant is
prohibited from contesting.”].)
III. DISPOSITION
The judgment is affirmed.
_________________________
Rivera, J.
We concur:
_________________________
Ruvolo, P.J.
_________________________
Reardon, J.
13
Trial court: Alameda County
Trial judge: Hon. John M. True, III
Attorneys:
Harvey Ottovich for Defendant and Appellant
Law Offices of Randall B. Schmidt, Randall B. Schmidt for Defendant and Appellant
Kamala D. Harris, Attorney General of California, Angela Sierra, Senior Assistant
Attorney General, Antoinette Benita Cordero, Deputy Attorney General, John M.
Appelbaum, Deputy Attorney General, and Department of Fair Housing and
Employment, Megan Elizabeth Elsea, for Plaintiff and Respondent
14