Filed 12/14/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
PURVIS HOLLOWAY, B259622
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. TC023138)
v.
TALIA QUETEL et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County, William
Barry, Judge. Reversed and remanded.
Purvis Holloway, in pro. per., for Plaintiff and Appellant.
No appearance for Defendants and Respondents.
__________________
Purvis Holloway, an incarcerated and self-represented litigant, appeals from the
judgment entered in favor of Talia Quetel and Antonio McDaniels after the trial court
found Holloway had not provided required documentation and failed to carry his burden
of proof with regard to entry of a default judgment on his complaint for unpaid rent and
damages to the rental property. Holloway contends he provided the court with all
necessary documents and complied with the requirements of Code of Civil Procedure
section 585, subdivisions (b) and (d), and California Rules of Court, rule 3.1800(a) for
entry of a default judgment. We reverse and remand with directions to permit Holloway
to submit a new Judicial Council Forms, form CIV-100 (form CIV-100) with supporting
declarations executed under penalty of perjury and a proposed form of judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. Holloway’s Complaint, Entry of Default, Dismissal of the Action and Our
Reversal in the Prior Appeal
A detailed history of Holloway’s lawsuit, from the filing of two complaints on
May 6, 2009 naming Quetel and McDaniels as defendants, through the improper
dismissal of the action on May 11, 2012 for failure to file proofs of service and failure to
prosecute, is contained in our opinion in Holloway’s prior appeal (Holloway v. Quetel
(June 17, 2013, B242809) [nonpub. opn.] (Holloway I)) and need not be repeated here.
In brief, Holloway’s typewritten civil complaint for damages, seeking recovery for
unpaid rent and damages to the rental property, alleged Holloway owned a residential
property at 16107 South Pannes Avenue, Compton, where Quetel and her boyfriend
McDaniels lived since no later than January 2003; Quetel acknowledged her obligation to
pay rent, but claimed she had paid Holloway’s sister; Holloway’s sister denied receiving
any payments; and Holloway unsuccessfully demanded payment in writing ($500 per
month) from Quetel prior to filing the lawsuit. Holloway also alleged Quetel and
McDaniels had destroyed various items of personal property and caused damage to the
outside of the property for which they were responsible. The complaint contained a
demand for damages in the sum of $36,814, which included back rent and the cost of
repair for various items of personal property. Holloway also requested that $520.83 be
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added for every month of occupancy by Quetel and McDaniels following the date of
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filing of the complaint.
Holloway personally served the summons and civil complaint for damages on
Quetel and McDaniels. On August 7, 2009, at Holloway’s request, the clerk entered
Quetel’s and McDaniels’s defaults for failure to respond to the complaint within 30 days
of the service of summons. Holloway then made several unsuccessful attempts to obtain
a default judgment; the documents he filed were rejected for various procedural defects.
On October 13, 2009 the trial court, on its own motion, issued an order to show
cause re striking Holloway’s complaint for failure to state a cause of action. Eventually
the court struck the complaint, set aside the defaults of Quetel and McDaniels and
granted Holloway leave to file an amended complaint. When Holloway was unable to
serve the amended pleading after several extensions of time to do so, the court dismissed
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the action.
On appeal we held Holloway’s typewritten complaint for civil damages adequately
alleged the elements of an oral or implied-in-fact contract obligating Quetel and
McDaniels to pay rent for their use of the South Pannes Avenue property. Accordingly,
no amended complaint should have been required; and, as a consequence, it was error to
dismiss the action for failure to serve the amended complaint or for failure to prosecute
the action. We reversed the order of dismissal and remanded the case to the trial court
with directions “to reinstate both Holloway’s original complaint, filed May 6, 2009, and
1
Holloway had also filed a complaint for property damage that named Quetel and
McDaniels as defendants on an optional Judicial Council form. The form complaint,
which was assigned the same case number as the typewritten complaint, did not attach
any of the required separate form causes of action. As we explained in Holloway I, the
trial court properly struck the deficient (and duplicative) form pleading.
2
We explained in Holloway I, “Quetel and McDaniels apparently moved from the
South Pannes Avenue property; attempts to locate them to effect substituted service
failed; and Holloway’s lack of resources prevented him from serving them by
publication.”
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the default entered against Quetel and McDaniels on August 7, 2009, and to conduct
further proceedings not inconsistent with [our] opinion.”
2. Holloway’s Efforts To Effect Entry of a Default Judgment
Following our decision in Holloway I, Holloway proceeded once again to attempt
to have a default judgment entered against Quetel and McDaniels. Initially, on
September 30, 2013 Holloway filed a document entitled “motion for enforcement of
judgment and request for sanctions for non-complaint [sic].” The trial court denied the
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motion without prejudice as premature because no judgment had yet been entered. The
court then set an order to show cause re dismissal for failure to prosecute for April 11,
2014, giving Holloway six months to file the documents necessary to obtain a default
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judgment.
On November 5, 2013 Holloway submitted a motion to renew the request for
default judgment that he had previously filed in August 2009 prior to the dismissal of his
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action. That motion, which requested entry of judgment of $36,814, included a
completed form CIV-100 (Request for Entry of Default/Court Judgment) and a
3
Our decision in Holloway I was filed June 17, 2013; the remittitur issued on
October 16, 2013 and was filed in the superior court on October 29, 2013. Both
Holloway’s September 30, 2013 motion for enforcement of judgment and the court’s
October 8, 2013 order denying the motion were filed before the trial court’s jurisdiction
had been restored.
4
In Holloway I we indicated that setting an order to show cause in advance of the
deadline for a prescribed time standard (there, the time period for filing proofs of service
of the amended complaint) is improper, citing language in California Rules of Court,
rule 2.30(c) that requires a court issuing an order to show cause to “state the applicable
rule that has been violated” and to “describe the specific conduct that appears to have
violated the rule.” Notwithstanding that caution, the trial court (albeit a different judge)
once again utilized this disfavored case management technique.
5
The August 2009 motion for default judgment is included in a supplemental
clerk’s transcript that is part of the record on appeal in Holloway I. On our own motion
we incorporate by reference that portion of the record in Holloway I. (See Cal. Rules of
Court, rule 8.147(b)(1).)
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declaration by Holloway, signed under penalty of perjury on August 27, 2009. The
declaration, however, focused on Holloway’s service of the summons and complaint and
the defendants’ failure to answer and did not provide any detail or evidentiary support for
his demand for $36,814 in damages. This motion was apparently denied at or about the
time it was filed although the record on appeal does not contain a copy of the court’s
order.
Holloway attempted to file a new motion for default judgment on March 14, 2014.
The attached form CIV-100 identified as evidentiary support “plaintiff declaration filed
May 6, 2009”—apparently a reference to the “declaration . . . in support of his civil
complaint” contained within the body of Holloway’s initial May 6, 2009 typewritten
complaint. This portion of the complaint sets forth the factual basis for Holloway’s
claims against Quetel and McDaniels, including his damage calculations, and states, “I
am the plaintiff in this action[.] [A]ll facts alleged in this document not otherwise
supported by citations to the record, exhibits, or other documents, are true of my own
personal knowledge.” However, neither the pleading itself nor the declaration pages
were signed under penalty of perjury. The March 14, 2014 motion was originally marked
“received” by the court, rather than “filed”; and the “received” stamp was then marked
“canceled.” However, an April 11, 2014 minute order indicates “the March 14, 2014
motion packet” was reviewed by the court on that date, and a subsequent April 11, 2014
minute order states, “Plaintiff’s May 6, 2009 declaration is not in proper form and will
not be used for the default judgment.” A new order to show cause was set for June 13,
2014 to give Holloway an additional 60 days to file default judgment papers that
complied with Code of Civil Procedure section 585 and California Rules of Court,
rule 3.1800.
The next motion for default judgment was received by the court on April 28, 2014.
It contained a new form CIV-100, but was rejected with an explanatory form on June 9,
2014 because the name of one of the defendants did not match the complaint (Antonio
McDaniels’s first name was misspelled “Antonil”), Judicial Council form JUD-100
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(Judgment) had not been submitted and no declarations were provided that complied with
the requirements of Code of Civil Procedure section 585, subdivision (d). On June 13,
2014 the order to show cause was continued to September 12, 2014, and the court stated
no further continuances would be allowed.
Yet another motion for default judgment was filed on July 14, 2014 and apparently
refiled on July 28, 2014. The papers included Holloway’s “affidavit” stating “all facts
not supported by the record, exhibits are true of plaintiff’s own personal knowledge; Also
supported by the facts in [Holloway I].” A form CIV-100 was attached. The document
was neither sworn nor executed under penalty of perjury. On September 12, 2014 the
court ruled none of the papers filed by Holloway as of that date complied with applicable
statutes and rules of court and the truth of the material referred to in the documents
identified by Holloway could not be judicially noticed. Rather than enter judgment in
favor of defendants, however, the court gave Holloway “one last chance to comply,”
setting October 14, 2014 as the next hearing date. The court cautioned, if Holloway
failed to file the necessary papers or did not provide persuasive evidence in support of his
claims, the court might enter judgment against him at that time. On October 3, 2014
Holloway filed a notice of appeal from the court’s September 12, 2014 order.
On October 14, 2014 the court entered a new order. The court first explained the
notice of appeal was “immaterial” because the September 12, 2014 order was not a
judgment or otherwise appealable; it simply gave Holloway another opportunity to
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submit the required documentation for his default judgment. The court then noted that
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An appeal from a nonappealable order does not divest the trial court of
jurisdiction. (Maxwell v. Superior Court (1934) 1 Cal.2d 294, 297; Hopkins & Carley v.
Gens (2011) 200 Cal.App.4th 1401, 1409, fn. 4; Pazderka v. Caballeros Dimas Alang,
Inc. (1998) 62 Cal.App.4th 658, 666.) Holloway’s contention the September 12, 2014
order was immediately appealable, notwithstanding his acknowledgement it was an
“intermediate ruling, proceeding, order or decision,” is simply incorrect. That order,
which, as the court explained, continued the order to show cause hearing to allow more
time for Holloway to file the required default judgment papers, is reviewable under Code
6
Holloway had not filed any new documents and found that waiting longer for Holloway
to provide his evidence would be futile. Accordingly, the court ruled Holloway had
failed to meet his burden of proof and directed that judgment be entered in favor of
defendants Quetel and McDaniels on the May 6, 2009 complaint. Alternatively (and
somewhat inconsistently), the court ordered the case dismissed without prejudice for
failure to prosecute.
DISCUSSION
1. Requirements for Entry of a Default Judgment
Code of Civil Procedure section 585 sets forth two methods for obtaining a default
judgment. First, when the complaint seeks compensatory damages only, in a sum certain
that is readily ascertainable from the allegations of the complaint or statement of
damages, the clerk may enter the default judgment for that amount. (Code Civ. Proc.,
§ 585, subd. (a).) However, a clerk’s judgment is appropriate only in cases where the
determination of damages is a purely ministerial act, that is, where there is “some
definite, fixed amount of damages or where such may be ascertained by computation
made by the clerk. If evidence must be taken to establish the amount due . . . , the clerk
may not render judgment.” (Ford v. Superior Court (1973) 34 Cal.App.3d 338, 342;
accord, Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 287.)
Second, if the complaint seeks nonmonetary relief or monetary relief in amounts
that require additional evidence or the exercise of judgment to determine, the plaintiff
must request entry of judgment by the court. (Code Civ. Proc., § 585, subd. (b).) In
those cases the plaintiff must affirmatively establish his or her entitlement to the specific
judgment requested: “The court shall hear the evidence offered by the plaintiff, and shall
render judgment in the plaintiff’s favor for that relief, not exceeding the amount stated in
the complaint, in the statement required by [Code of Civil Procedure] [s]ection 425.11, or
in the statement provided for by [Code of Civil Procedure] [s]ection 425.115, as appears
of Civil Procedure section 906 only as part of the appeal from the judgment entered on
October 14, 2014.
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by the evidence to be just. . . .” (Ibid.) Code of Civil Procedure section 585,
subdivision (d), authorizes the court to “permit the use of affidavits, in lieu of personal
testimony, as to all or any part of the evidence or proof required or permitted to be
offered, received, or heard in those cases,” but specifically requires that “[t]he facts stated
in the affidavit or affidavits shall be within the personal knowledge of the affiant and
shall be set forth with particularity, and each affidavit shall show affirmatively that the
affiant, if sworn as a witness, can testify competently thereto.”
A party seeking a default judgment on declarations must use mandatory form
CIV-100. (Cal. Rules of Court, rule 3.1800(a).) The documents filed with the clerk must
include “[d]eclarations or other admissible evidence in support of the judgment
requested” (Cal. Rules of Court, rule 3.1800(a)(2)) and a proposed form of judgment
(Cal. Rules of Court, rule 3.1800(a)(6)).
Los Angeles Superior Court Local Rule 3.201(a) states that determination of
applications for default judgment on declarations is the preferred procedure. That rule
also cautions that “[d]eclarations must comply with Code of Civil Procedure
section 2015.5,” which specifies the required format for a declaration under penalty of
perjury to be used in lieu of a sworn statement or affidavit.
2. Holloway Failed To Submit the Documents Required for Entry of a
Default Judgment
Despite repeated attempts, Holloway failed to submit all the documents necessary
for the court to enter a default judgment in his favor against Quetel and McDaniels. He
did complete and file the mandatory form CIV-100 and corrected the minor typographical
error in McDaniels’s first name that appeared in one of the early iterations of that form.
However, he never prepared and filed a declaration under penalty of perjury that set forth
the elements of his contract claim—specifically, detailed information concerning Quetel
and McDaniels’s occupancy of the South Pannes Avenue property, their agreement to
pay rent or acknowledgement of their obligation to do so, the amount of monthly rent and
the period of their occupancy. (To the extent McDaniels believed it appropriate to refute
any contention payment had been made to his sister, a separate declaration under penalty
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of perjury from her was also necessary.) Similarly, no declaration under penalty of
perjury was submitted that listed the items of personal property that had been damaged
and explained how loss in value or cost of repair was calculated. In addition, Holloway
never submitted a proposed form of judgment, either on optional form JUD-100 or
otherwise. Accordingly, the trial court did not err in refusing to enter the default
judgment. (See Kim v. Westmoore Partners, Inc., supra, 201 Cal.App.4th at p. 288
[“‘[p]laintiffs in a default judgment proceeding must prove they are entitled to the
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damages claimed’”].)
3. The Cause Is Properly Returned to the Trial Court To Permit Holloway To File
a Request for Entry of a Default Judgment Based on an Accurate Statement of
the Required Documentation
A trial judge presiding over a case initiated by an incarcerated and self-represented
plaintiff, particularly when there has been no appearance by any defendant, faces a
significant challenge in balancing his or her obligations to facilitate the ability of the self-
represented litigant to be fairly heard, on the one hand, and to refrain from assuming the
role of advocate, on the other. Canon 3B(8) of the California Code of Judicial Ethics
requires a judge to “dispose of all judicial matters fairly, promptly, and efficiently” and to
“manage the courtroom in a manner that provides all litigants the opportunity to have
their matters fairly adjudicated in accordance with the law.” The Advisory Committee
Commentary to this canon provides, in part, “The obligation of a judge to dispose of
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In addition to incorrectly arguing he had submitted all required papers in proper
form for entry of a default judgment, Holloway asserts this court erred when it denied a
petition to enforce judgment in November 2013 and a separate petition for writ of
mandate in February 2014. Neither order is properly before us in this appeal from the
trial court’s judgment entered October 14, 2014.
Holloway also contends, citing to Code of Civil Procedure section 1029, that
sanctions in the form of costs should be awarded against the superior court for issuing
erroneous orders, apparently referring not only to the order we reversed in Holloway I but
also to the orders he challenges in the instant appeal. That provision, however, concerns
awards of costs against public agencies when they are parties to the litigation. Neither it,
nor any other statute, authorizes the type of sanctions or award of costs sought by
Holloway.
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matters promptly and efficiently must not take precedence over the judge’s obligation to
dispose of the matters fairly and with patience. For example, when a litigant is self-
represented, a judge has the discretion to take reasonable steps, appropriate under the
circumstance and consistent with the law and the canons, to enable the litigant to be
heard.” (See also ABA Model Code of Jud. Conduct, canon 2, rule 2.2, comment 4 [“[i]t
is not a violation of this Rule [regarding impartiality and fairness] for a judge to make
reasonable accommodations to ensure pro se litigants the opportunity to have their
matters fairly heard”].) The canons and commentary thus provide a path to ensure a self-
represented litigant can be fairly heard on the merits while the court maintains its
impartiality and does not assume (or appear to assume) the role of advocate or partisan.
(See Cal. Code Jud. Ethics, canon 3 [“a judge shall perform the duties of judicial office
impartially, competently, and diligently”].)
That difficult balance was not maintained in this case. From the record it is
apparent Holloway understood some of the requirements for entry of a default judgment
(use of mandatory form CIV-100) but not others (a detailed declaration containing the
factual basis for his claims and an explanation of the calculation of the damages sought,
based on personal knowledge and signed under penalty of perjury, and presentation of a
proposed form of judgment). Rather than clearly identifying the defects or omissions in
the moving party’s papers, as is routinely done in tentative rulings in cases where the
parties are represented by counsel, however, the notices and orders sent to Holloway
when his papers were rejected only obliquely or, in one repeated instance, incorrectly
notified him of his errors. Thus, the court cited Code of Civil Procedure section 585,
subdivision (d), and California Rules of Court, rule 3.1800, and stated the declarations
submitted at various times were “not in proper form,” but did not cite rule 3.201 of the
Los Angeles Superior Court Local Rules regarding use of declarations when requesting a
default judgment or Code of Civil Procedure section 2015.5 concerning the required
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format for a declaration under penalty of perjury, let alone actually specify the nature of
the deficiencies in the documents Holloway had submitted in an effort to comply with the
declaration requirement.
Even more troublesome, the court noted in response to several filings that
Holloway had not submitted Judicial Council form JUD-100, an optional form, which the
court incorrectly stated was essential for entry of a default judgment. Compounding the
error, the court’s September 12, 2014 order indicated its local rule 3.213 required use of
form JUD-100. In fact, that rule does not refer to form JUD-100 and specifies only that
“Judicial Council judgment forms must be used whenever required.” (Super. Ct. L.A.
County, Local Rules, rule 3.213(b), Form of Judgment.) Far from prompting Holloway
to submit either form JUD-100 or some other form of proposed judgment as required by
rule 3.1800(a)(6) of the California Rules of Court, these misstatements led to further
filings in which Holloway argued form JUD-100 is not a mandatory form and a local
court rule could not require use of an optional Judicial Council form.
The court here was certainly patient with Holloway, giving him multiple
opportunities to prepare and file the necessary papers for entry of his default judgment
against Quetel and McDaniels. And because he was incarcerated, the court could not
suggest that Holloway visit one of the self-help centers located at the courthouse. But the
court appears not to have recognized its discretion to give neutral (and accurate) guidance
to Holloway about the requirements for entry of a default judgment—“reasonable steps,
appropriate under the circumstances, . . . to enable the litigant to be heard.” (Cf. Austin v.
Valverde (2012) 211 Cal.App.4th 546, 550 [“[f]ailure to exercise discretion is itself an
abuse of discretion”].) Doing so would have served the interests of justice as well as
conserving the resources of the court and its personnel. Accordingly, we reverse the
judgment and remand with directions to give Holloway a reasonable period of time
attempt to file the request for entry of default with the required form CIV-100; a new
8
The court finally did cite Code of Civil Procedure section 2015.5 in its order of
October 14, 2014 entering judgment against Holloway.
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declaration containing the necessary detail for his claims, based on personal knowledge
and executed under penalty of perjury as required by Code of Civil Procedure
section 2015.5; and a proposed form of judgment as required by California Rules of
Court, rule 3.1800(a)(6), either on optional Judicial Council form JUD-100 or some
other, appropriate form prepared by Holloway himself.
DISPOSITION
The judgment is reversed, and the cause remanded with directions to permit
Holloway to submit a new form CIV-100 with supporting declarations executed under
penalty of perjury and a proposed form of judgment. There is no award of costs on
appeal.
PERLUSS, P. J.
We concur:
ZELON, J.
SEGAL, J.
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