Can You Avoid Liability For A Dog Bite If You Are Not Personally Served With The Lawsuit

May 18, 2016 5:03 pm Published by

CONNELLY v.CASTILLO, 236 Cal. Rptr. 112, 190 Cal.App.3d 1583 (1987)

Can you avoid liability on a dog bite claim by avoiding service of the lawsuit?


Can you avoid liability on a dog bite claim by ignoring the lawsuit?


Can you avoid personal responsibility on a dog bite lawsuit if you have insurance?



Plaintiff filed a lawsuit for personal injury against defendant on February 25, 1983, as the result of sustaining severe injuries to her face by bites from a dog kept on defendant's real property. Defendant’s lawyer agreed to accept service of the lawsuit, but when it was mailed to him, he declined to accept service. Defendant’s insurance company also declined to accept service. Five attempts were made to personally serve defendant, but all five attempts were unsuccessful. Subservice where the documents were presented to defendant’s mother took place on September 2, 1983.
On September 7, 1983 plaintiff serve defendant with a statement of damages, showing what the medical expenses sought were as well as what plaintiff was seeking for pain, suffering, inconvenience, emotional distress, and mental anguish among other things.
Plaintiff then filed a request to enter default on October 4, 1983. On October 12, 1983 she filed the damages statement with the trial court together with proof of service of the statement. Defendant mailed his answer to the lawsuit to the superior court on October 4, 32 days after September 2, the date of service of the complaint, but the court clerk mailed it back, informing him that the request for default had already been filed. On October 20, 1983, the matter was heard and default judgment was granted against defendant.
During the following two years, defendant appeared at several judgment debtor exams and entered into an agreement with plaintiff to make installment payments. On December 18, 1985, over two years after default judgment, defendant filed a motion to set aside the default, contending that it was void for plaintiff's failure to give defendant notice of the nature and amount of her damages pursuant to Code of Civil Procedure section 425.11. Plaintiff pointed out that she mailed her statement of damages to him on October 11, seven days after filing her request to enter default on October 4.

Plaintiff responded in her opposition motion that defendant had been served with the statement of damages prior to the entry of default, attaching to her motion a copy of the unfiled proof of service showing defendant was personally served with the damages statement on September 7, 1983. She further argued that there was no statutory rule requiring the statement of damages to be served within any specific time frame before entry of default other than to give defendant reasonable notice of the amount involved in the suit. Defendant replied that Plaintiff's extrinsic proof of service was insufficient to cure the defective judgment as it showed Plaintiff filed her request for default on October 4, a mere 28 days after serving defendant with the damages statement on September 7, and that Plaintiff should have waited at least 30 days.

On February 14, 1986, the trial court "reluctantly" granted defendant's motion and ordered the default judgment to be set aside, finding the previous judgment was void. The trial court thus found that the judgment was void because Plaintiff had not provided defendant with a 30-day response time period after personally serving him with the statement of damages before filing her request for default. Plaintiff file an appeal.
Plaintiff contends on appeal that the default judgment is not void since defendant received sufficient notice of the amount of damages claimed in the suit before she filed her request for default, therefore, the trial court had jurisdiction to grant the judgment pursuant to section 425.11. She further claims that a trial court's power to render default judgments is authorized only according to statutory terms, and section 425.11 imposes no 30-day waiting period after service of a statement of damages.
Defendant counters that the judgment is clearly void on its face since there was no record at the time default judgment was granted that defendant had been personally served with the statement of damages. Defendant further asserts, in the exhibited belief that the trial court granting default was aware of the personal service of the damages statement upon defendant on September 7, 1983, that the superior court clerk should have waited 30 days until October 7, to file Plaintiff's request for default, and therefore
acted without authority and jurisdiction. Had the court clerk waited 30 days to file the request for default, defendant contends, his answer would have been accepted by the court, having been mailed to the court on October 4, the same day that the default request was filed.


The court of appeal reversed the trial court’s order. It found that Section 425.11 was designed to give defendants "one last clear chance" to respond to allegations of complaints by providing them with "actual" notice of their exact potential liability. I stated that there is no language in section 425.11 stating or suggesting the exact amount of notice that a plaintiff must give a defendant concerning the amount of damages sought before seeking default. The statute simply provides that notice is required before entry of default. The record on appeal in the present case reveals that Plaintiff personally served defendant with a statement of damages before requesting default. The judgment is therefore not invalid on its face.
Defendant's motion to vacate default, being brought beyond the six-month period provided by section 473, was improper. It determined that a default judgment is valid when based on actual service of summons on the defendant, although no proof of service is filed prior to entry of the judgment. The modern rule is that such a judgment is irregular, but not void. Here, defendant concededed that he was personally served with Plaintiff's statement of damages on September 7, almost one month prior to Plaintiff's filing of the request for default. The court of appeal held that Plaintiff's failure to file proof of this service constituted a mere irregularity which did not void the judgment. Plaintiff correctly points out that section 425.11 contains no rule declaring a 30-day notice of the statement of damages in personal injury cases.

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