Appeals Court of Massachusetts.

Dennis A. KELLEY

v.

RICCELLI ENTERPRISES OF MASSACHUSETTS, INC., & others.

 

Riccelli Brokerage Services, LLC; and Riccelli Enterprises, Inc.

 

No. 10–P–1796.

October 11, 2011.

 

By the Court (TRAINOR, FECTEAU & HANLON, JJ.).

 

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, Dennis A. Kelley, was an independent trucking contractor working for the defendants (collectively, Riccelli). While Kelley’s truck was parked in Riccelli’s equipment yard, it caught fire; the fire destroyed Kelley’s truck, damaged two trucks parked on either side of it, and a discharge of fuel and oil caused some environmental damage to the property. Shortly before the fire, Kelley submitted an invoice for payment of services rendered, but Riccelli withheld payment, claiming both a common-law right and a contractual right, under an indemnification provision in the contract between the parties, to offset the damages caused by the fire.

 

Kelley’s insurance carrier, Safety Insurance Company, paid the claim for the destruction of his truck. Riccelli commenced a separate action against Kelley in Superior Court to recover for the damage caused to its two trucks and its property.

 

The indemnification provision states: “To the fullest extent permissible by the law [Kelley] agrees to indemnify and hold [Riccelli] including [its] agents and employees, harmless from and against any and all losses, claims damages, penalties or expenses, including reasonable attorney’s fees, arising from bodily injury or death to any person and/or property damage including loss of use arising out of or in anyway relating to the work performed or omission caused by [Kelley], agents or employees of [Kelley] under this contract.”

 

Kelley commenced the present action in District Court for breach of contract, quantum meruit, and violation of G.L. c. 93A, § 11, for Riccelli’s withholding payment of the invoice in order to leverage a settlement in its separate action against him. A motion judge denied Riccelli’s motion for partial summary judgment. Riccelli’s argument was that based on the contract, New York law applied and barred recovery under c. 93A. After a bench trial, the trial judge (who differed from the motion judge) held that the indemnification provision did not apply on these facts; that Massachusetts law, specifically c. 93A, did apply;  and that Riccelli’s withholding payment for services rendered in order to extort a more favorable settlement in the separate action, was both unfair and knowing. Kelley was awarded $2,955.14 in damages on his contract claim, double damages under the c. 93A claim, reasonable counsel fees later determined to be $25,506.81, and costs and interest.

 

The contract provides: “This agreement shall be interpreted under the laws of New York State.”

 

Specifically, “since the actions and transactions constituting the alleged unfair method of competition or the unfair or deceptive act or practice occurred primarily and substantially within the Commonwealth,” Massachusetts law applies.

 

Riccelli appealed both the denial of its motion for partial summary judgment  and the judgment to the Appellate Division of the District Court Department. The Appellate Division affirmed, holding that Riccelli’s conduct was “in disregard of known contractual arrangements,” constituted an unfair business practice, and was knowing and wilful. Riccelli appeals to this court arguing: (1) the motion judge erred in denying its motion for partial summary judgment as the parties’ relationship is governed by New York law, which does not recognize an unfair and deceptive business practice in a nonconsumer context; (2) the trial judge erred in finding a violation of G.L. c. 93A, § 11; and (3) the trial judge erred in awarding multiple damages and attorney’s fees.

 

The Appellate Division refused to address the motion judge’s order denying partial summary judgment, which concluded that the contract provision did not mandate the application of New York law on these facts and, therefore, c. 93A was applicable. The Appellate Division held that the denial of the motion was not appealable after the bench trial on the merits, citing Deerskin Trading Post, Inc. v. Spencer Press, Inc., 398 Mass. 118, 126 (1986). Because we believe this threshold issue of law was preserved, we address the question on Riccelli’s appeal to this court.

 

We disagree with Riccelli that New York law applies on these facts. The contractual language that Riccelli relies on, that the agreement “shall be interpreted under the laws of New York,” is not equivalent to language that New York law shall govern the contract. Furthermore, even if New York law does apply, “[t]he choice of law provision ordinarily will apply only to contract claims that arise from the agreement.” Stagecoach Transp., Inc. v. Shuttle, Inc., 50 Mass.App.Ct. 812, 818 (2001), citing Knieriemen v. Bache Halsey Stuart Shields, Inc., 74 A.D.2d 290, 293–294 (N.Y.1980). Riccelli’s conduct that constituted the unfair and deceptive act, i.e., the withholding of payment of Kelley’s invoice in an effort to leverage settlement in the separate case, did not arise out of the contract. Cf. ibid. We agree with the trial judge that the relationship of the parties and of the unfair or deceptive act to Massachusetts necessitated the application of Massachusetts law, specifically c. 93A.

 

With respect to Riccelli’s additional claim that its “conduct did not rise to the ‘level of rascality’ and egregiousness as [necessary] between business entities, … we conclude that the trial judge’s rulings in this respect are fully supported by the record.” Id. at 819, citing Linkage Corp. v. Trustees of Boston Univ., 425 Mass. 1, 26–27, cert. denied, 522 U.S. 1015 (1997). As the Appellate Division held, “the trial judge’s finding that Riccelli’s withholding of payment was undertaken to leverage its position on its claim against Kelley for environmental cleanup costs indicates [the judge’s] awareness of the level of unfairness and deception required under § 11.” RA 429. See Anthony’s Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 474 (1991) (“[C]onduct ‘in disregard of known contractual arrangements’ and intended to secure benefits for the breaching party constitutes an unfair act or practice for c. 93A purposes”), quoting from Wang Labs., Inc. v. Business Incentives, Inc., 398 Mass. 854, 857 (1986). There was evidence that Riccelli knew that Kelley’s destroyed truck was his sole source of income, which meant that withholding payment of the invoice left him unable to care for his family. In addition, there was evidence that if the insurance claim for the property damage was paid, Riccelli would release the invoice payment. As there was sufficient evidence of Riccelli’s violation of c. 93A, the trial judge’s award of multiple damages and attorney’s fees was appropriate. Kelley seeks attorney’s fees associated with this appeal which we think warranted in this instance.

 

Kelley initially sought payment of an invoice for an amount less than $3,000 and was forced to expend nearly ten times that amount in attorney’s fees below just to obtain judgment. Kelley, therefore, should file within fourteen days of the date of the rescript an application for appellate attorney’s fees and costs with the appropriate supporting materials. See Fabre v. Walton, 441 Mass. 9, 10–11 (2004). Riccelli then will have ten days to respond.

 

Decision and order of Appellate Division affirmed.

Court of Appeal, Second District, Division 5, California.

GLOBE CON FREIGHT SYSTEMS, INC., Plaintiff, Cross–Defendant and Appellant,

v.

APM TERMINALS PACIFIC, LTD. et al., Defendants, Cross–Complainants and Respondents.

 

No. B229652.

(Los Angeles County Super. Ct. No. NC051708).

Oct. 7, 2011.

 

APPEAL from an order of the Superior Court of Los Angeles County, Ross M. Klein, Judge. Reversed.

Guy L. Kirkpatrick and Brendan J. Thorpe for Plaintiff, Cross–Defendant and Appellant.

 

Keesal, Young & Logan, Albert E. Peacock III, Glen R. Piper and James F. Kuhne, Jr., for Defendants, Cross–Complainants and Respondents.

 

TURNER, P.J.

I. INTRODUCTION

In a personal injury action, a cross-complaint was filed by the City of Los Angeles (the city), which is not a party to this appeal, and two other parties, APM Terminals Pacific Ltd. and Maersk, Inc. (cross-complainants). Eventually, on January 23, 2009, the default of Globe–Con Freight Systems Inc. (cross-defendant) was entered. On several occasions, the trial court refused to set aside cross-defendant’s default. Thereafter, on October 21, 2010 cross-complainants secured a default judgment of $2,886,468 against cross-defendant. On December 2, 2010, the trial court refused to set aside the default and default judgment. Cross-defendant appeals from the trial court’s refusal to vacate the January 23, 2009 default and the October 21, 2010 default judgment. Cross-defendant argues it was not provided legally sufficient notice of the damages amount sought by cross-complainants. We agree and reverse the default judgment. (Code Civ. Proc., § 580, subd. (a) )

 

All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

 

II. BACKGROUND

A. Complaint And Cross-complaint

According to the cross-complaint, on August 2, 2007, plaintiff, Oscar Ceballos, was injured in an accident while working for cross-defendant. According to the cross-complaint, the marine terminal was operated by cross-complainants and owned by the city. On August 25, 2008, Mr. Ceballos and his wife, sued cross-complainants, the city, Avtar Singh and Herman Trucking, Inc. for personal injury and consortium loss. Plaintiffs’ complaint seeks compensatory damages according to proof.

 

On December 15, 2008, cross-complainants and the city filed a cross-complaint against: cross-defendant; Mr. Singh; Herman Trucking, Inc.; Herman Transport; Karamjit S. Grewal; and Paramjit S. Grewal. The cross-complaint contains causes of action for contractual, equitable and comparative indemnity, contract breach, contribution and declaratory judgment. The contractual indemnity, contract breach and declaratory relief claims were based on alleged contractual obligations owed by cross-defendant and Herman Trucking, Inc. under the Uniform Intermodal Interchange and Facilities Access Agreement. The cross-complaint alleges cross-defendant and Herman Trucking, Inc. were obligated to defend and indemnify cross-complainants and the city under the terms of that agreement. The cross-complaint does not specify a dollar amount for the claimed damages. Rather, the cross-complaint seeks: damages in a sum according to proof at trial; full indemnification from cross-defendant for any judgments plaintiffs may recover against cross-complainants and the city; contribution based upon proportionate share of fault to the extent cross-complainants and the city were found to be tortfeasors; defense costs including costs, expenses and attorneys’ fees; and declaratory relief.

 

B. Cross-defendant’s Default

Cross-defendant did not answer the cross-complaint. On January 23, 2009, cross-complainants and the city filed a default entry request against cross-defendant. The default entry request was served on Kenneth R. Devine, cross-defendant’s president, by mail. The default entry request does not state the amount of judgment to be entered. Cross-defendant’s default was entered on the same day.

 

On September 3, 2009, cross-complainants and the city served a damages statement pursuant to section 425.11, subdivision (b) on the Grewals seeking $2 million in damages and $58,664 in attorneys’ fees. Cross-complainants and the city did not serve a damages statement on cross-defendant. On December 15, 2009, plaintiffs served a damages statement on cross-complainants. Plaintiffs’ damages statement sought: $50 million in general damages; $50 million in emotional distress damages; $1.25 million in medical expenses; $125,000 in past lost earnings; and unspecified losses for future medical expenses and lost earnings.

 

On February 10, 2010, cross-defendant moved to set aside the default on the ground it was never served with the summons and cross-complaint or the default entry request. In its points and authorities, cross-defendant asserted that it was unaware of the cross-complaint and default entry until November 2009. Declarations filed by cross-defendant denied the summons and cross-complaint were served in November 2009. According to cross-defendant, it became aware of the cross complaint and default when Mr. Devine was notified of the default by cross-defendant’s insurer. On April 12 and 14, 2010, hearings were held on cross-defendant’s motion to set aside the default. Testimony was presented by a process server and Mr. Devine concerning service of the summons and cross-complaint. The trial court believed the process server’s testimony and denied cross-defendant’s motion to set aside the default.

 

On May 12, 2010, cross-defendant again moved to set aside the default. Cross-defendant argued the court lacked jurisdiction to enter the default because cross-complainants and the city had failed to serve a damages statement pursuant to sections 425.10, 425.11 and 585. On July 2, 2010, cross-defendant’s second motion to set aside the default was denied. The trial court ruled no damages statement was required for the cross-complaint because this was not a personal injury case. The trial court found the cross-complaint’s contractual, equitable and comparative indemnity, contract breach, and declaratory relief causes of action were not personal injury claims. Rather, the trial court ruled the cross-complaint’s causes of action arose from a contractual relationship between the parties. The trial court reasoned: “A party seeking indemnity cannot serve a statement of damages because such a party cannot state what its damages will be—only the original Plaintiff can specify the amount of the claim. Indemnity is a way of claiming that whatever Plaintiff recovers should be paid by a more responsible party. A party seeking indemnity based on a contractual provision cannot be held to making a claim for personal injuries or be made responsible for delineating the damages a party plaintiff will seek to recover.”

 

C. Default Judgment Against Cross–Defendant

On September 10, 2010, according to a declaration, cross-defendants settled with the plaintiffs for $2 million. Plaintiffs also settled with Mr. Singh and Herman Trucking, Inc. for $2 million. Cross-complainants incurred $886,468 in defense fees including attorneys’ and expert fees, costs and expenses.

 

In October 2010, cross-complainants filed various papers in support of their default judgment entry request. On October 21, 2010, the trial court entered a default judgment in favor of cross-complainants for $2,886,468. On October 28, 2010, cross-defendant filed a motion for mandatory relief from the default judgment. On December 2, 2010, cross-defendant’s motion for mandatory relief from the default judgment was denied. The trial court ruled cross-complainants did not need to serve a damages statement because the cross-complaint did not contain claims for personal injury but arose from contractual relations. On December 17, 2010, cross-defendant filed a timely notice of appeal.

 

III. DISCUSSION

A. Standard Of Review

Section 473, subdivision (d) permits a court to set aside any void judgment or order upon the motion of an injured party. The motion may be made at any time and it is immaterial how the judgment’s invalidity is called to the court’s attention. ( Schwab v. Southern California Gas Co. (2004) 114 Cal.App.4th 1308, 1320; Heidary v. Yadollahi (2002) 99 Cal.App.4th 857, 862.) Further, the Court of Appeal has held: “ ‘[I]ndependent of section 473 of the Code of Civil Procedure, the right exists to have a void judgment vacated and set aside upon motion of the aggrieved party. [Citations.]’ “ ( Levine v. Smith (2006) 145 Cal.App.4th 1131, 1135, quoting Ross v. Murphy (1952) 113 Cal.App.2d 453, 455.) We review de novo a trial court’s ruling on whether the default and default judgment are void. ( Talley v. Valuation Counselors Group, Inc. (2010) 191 Cal.App.4th 132, 146; Cruz v. Fagor America, Inc . (2007) 146 Cal.App.4th 488, 496.)

 

B. Notice Requirements For Entry Of A Default and Default Judgment

Our Supreme Court has held, “It is a fundamental concept of due process that a judgment against a defendant cannot be entered unless he was given proper notice and an opportunity to defend.” ( In re Marriage of Lippel (1990) 51 Cal.3d 1160, 1166; see Schwab v. Southern California Gas Co., supra, 114 Cal.App.4th at p. 1321.) In Greenup v. Rodman (1986) 42 Cal.3d 822, 829, our Supreme Court held: “[D]ue 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 .” (Accord Schwab v. Southern California Gas Co., supra, 114 Cal.App.4th at p. 1321.) A defendant who is denied adequate notice of the amount of the default judgment against it is “effectively” denied a fair hearing. ( Greenup v. Rodman, supra, 42 Cal.3d at p. 826; Becker v. S.P.V. Construction Co. (1980) 27 Cal.3d 489, 493.)

 

In Greenup, our Supreme Court explained the purposes of different statutory provisions pertinent to defaults: “Section 580, and related sections 585, 586, 425.10 and 425.11, aim to endure that a defendant who declines to contest an action does not thereby subject himself to open-ended liability.” ( Greenup v. Rodman, supra, 42 Cal.3d at p. 826; see Levine v. Smith, supra, 145 Cal.App.4th at p. 1136.) Section 425.10, subdivision (a) requires: “A complaint or cross-complaint shall contain both of the following: [¶] (1) A statement of the facts constituting the cause of action, in ordinary and concise language. [¶] (2) A demand for judgment for the relief to which the pleader claims to be entitled. If the recovery of money or damages is demanded, the amount demanded shall be stated.” However, section 425.10, subdivision (b) states, “Notwithstanding subdivision (a), where an action is brought to recover actual or punitive damages for personal injury or wrongful death, the amount demanded shall not be stated….” Section 425.11, subdivision (c) requires the cross-complainant in a personal injury case to give notice to the cross-defendant of the amount of special and general damages sought to be recovered before a default may be taken. (See Schwab v. Rondel Homes, Inc. (1991) 53 Cal.3d 428, 431.) Sections 425.10 and 425.11 provide the formal notice required by due process. As our Supreme Court has explained: “It is precisely when there is no trial, however, that formal notice, and therefore the requirement of section 425.10, become critical. Notice is at the heart of the provision, as the Legislature underscored by adding section 425.11, which provides that in the single instance in which the amount of damages shall not be specified in the complaint—an action for personal injury—‘the plaintiff shall give notice to the defendant of the amount of special and general damages sought’ before obtaining a default judgment.” ( Greenup v. Rodman, supra, 42 Cal.3d at p. 827; see Schwab v. Rondel Homes, Inc., supra, 53 Cal.3d at pp. 434–435.)

 

Section 425.11, subdivisions (a) through (c) provides: “(a) As used in this section: [¶] (1) ‘Complaint’ includes a cross-complaint. [¶] (2) ‘Plaintiff’ includes a cross-complainant .[¶] (3) ‘Defendant’ includes a cross-defendant. [¶] (b) When a complaint is filed in an action to recover for personal injury or wrongful death, the defendant may at any time request a statement setting forth the nature and amount of damages being sought. The request shall be served upon the plaintiff, who shall serve a responsive statement as to the damages within 15 days. In the event that a response is not served, the defendant, on notice to the plaintiff, may petition the court in which the action is pending to order the plaintiff to serve a responsive statement. [¶] (c) If no request is made for the statement referred to in subdivision (b), the plaintiff shall serve the statement on the defendant before a default may be taken.”

 

When a cross-defendant fails to answer or otherwise respond to the cross-complaint, section 585, subdivision (a)  allows the clerk to enter a default. (See Schwab v. Rondel Homes, Inc., supra, 53 Cal.3d at p. 431.) However, section 580, subdivision (a) provides in 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 452.11, or in the statement provided for by Section 425.115; 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….”

 

Section 585, subdivision (a) states in part: “In an action arising upon contract or judgment for the recovery of money or damages only, if the defendant has, or if more than one defendant, if any of the defendants have, been served, other than by publication, and no answer, demurrer, notice of motion to strike of the character specified in subdivision (f), notice of motion to transfer pursuant to Section 396b, notice of motion to dismiss pursuant to Article 2 (commencing with Section 583.210) of Chapter 1 .5 of Title 8, notice of motion to quash service of summons or to stay or dismiss the action pursuant to Section 418.10, or notice of the filing of a petition for writ of mandate as provided in Section 418.10 has been filed with the clerk of the court within the time specified in the summons, or within further time as may be allowed, the clerk, upon written application of the plaintiff, and proof of the service of summons, shall enter the default of the defendant or defendants….”

 

Our Supreme Court has explained, “The notice requirement of section 580 was designed to insure fundamental fairness.” ( Becker v. S.P.V. Construction Co., supra, 27 Cal.3d at p. 494; see Stein v. York (2010) 181 Cal.App.4th 320, 325.) Applying the foregoing statutory provisions, our Supreme Court has explained: “If no specific amount of damages is demanded, the prayer cannot insure adequate notice of the demands made upon the defendant. [Citation.] Consequently, a prayer for damages according to proof passes muster under section 580 only if a specific amount of damages is alleged in the body of the complaint. [Citation.]” ( Becker v. S.P.V. Construction Co., supra, 27 Cal.3d at p. 494; Stein v. York, supra, 181 Cal.App.4th at p. 326.) Our Supreme Court has also stated, “[S]ection 580 is to be interpreted, in accordance with its plain language, to deprive a trial court jurisdiction to enter a judgment against a defaulting defendant which awards greater relief than that sought in the plaintiff’s complaint.” ( In re Marriage of Lippel, supra, 51 Cal.3d at p. 1167; accord, Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1176.) In addition to the statutory basis for notification of potential liability provided by section 580, subdivision (a), our Supreme Court has held a defaulting defendant has a due process right to notice of the amount of damages the plaintiff is seeking: “[D]ue process requires formal notice of potential liability; actual notice may not substitute for service of an amended complaint .” ( Greenup v. Rodman, supra, 42 Cal.3d at 826; accord Electronic Funds Solutions, LLC v. Murphy, supra, 134 Cal.App.4th at p. 1176.)

 

Cross-defendant argues the default and default judgment are void because cross-complainants failed to provide notice of the amount of damages either in the cross-complaint or in a section 425.11 damage statement. We agree. In Schwab v. Southern California Gas Co., supra, 114 Cal.App.4th at pages 1313–1314, the plaintiffs sued a gas company, an electric utility, a municipality and a construction company for personal injuries. The gas company, the electric utility and the municipality cross-complained against a construction company for indemnification and contribution. (Id. at p. 1313.) Neither the complaint nor the cross-complaints identified any damage amount. (Ibid.) The construction company never responded to the complaint or cross-complaints. (Ibid.) The electric utility and the municipality settled with the plaintiffs. They served damages statements on the construction company by mail rather than in the manner of a summons as required by section 425.11, subdivision (d)(1). (Id. at p. 1324.) The electric utility and the municipality later personally served damages statements on the construction company on August 22, 2001. (Ibid.) Later, on August 31, 2001, the trial court purported to enter the construction company’s defaults nunc pro tunc effective August 19, 2001. This was three days before the damages statements were properly served on the construction company. (Ibid.) The Court of Appeal held the defaults and judgments in favor of the electric utility and municipality were invalid because the construction company had no time to respond to the cross-complaints after the damages statements were served. (Ibid.)

 

Cross-complainants contend that they could not specify a dollar amount in the cross-complaint for indemnification and contribution because as the trial court recognized, “[O]nly the original Plaintiff can specify the amount of the claim.” But cross-defendant had a statutory and constitutional right to notice of the amount of damages to which it was subject. Indeed, this same argument was raised by the cross-complainants in Schwab and rejected by that court. (See Schwab v. Southern California Gas Company, supra, 114 Cal.App.4th at p. 1326.)

 

Cross-complainants argue that if they did not promptly request entry of cross-complainant’s default, they could be subject to monetary sanctions. Cross-complainants argue if they did not promptly seek entry of cross-defendant’s default, they could be subject to an order to show cause and sanctions pursuant to rule 3.110(g) of the California Rules of Court. Rule 3.110(g) of the California Rules of Court states: “If a responsive pleading is not served within the time limits specified in this rule and no extension of time has been granted, the plaintiff must file a request for entry of default within 10 days after the time for service has elapsed. The court may issue an order to show cause why sanctions should not be imposed if the plaintiff fails to timely file the request for the entry of default.” (Italics added.) As noted, in the italicized portion of rule 3.110(g) of the California Rules of Court, the trial court retains the authority to extend time to file the default entry request—something cross-complainants never requested. Further, nothing in rule 3.110(g) of the California Rules of Court exempts cross-complainants from providing notice of their damages to cross-defendant. Nor does rule 3.110(g) of the California Rules of Court authorize the denial of cross-defendant’s due process notice rights.

 

Cross-complainants further argue that at the most, we should vacate the default judgment but not the default itself. Cross-complainants argue a declaratory judgment can be entered against cross-defendant. Cross-complainants argue they are entitled to a defense and indemnification pursuant to the Uniform Intermodal Interchange and Facilities Access Agreement against plaintiffs’ personal injury claims. We disagree because the cross-complaint ultimately secured money judgments. (See Schwab v. Southern California Gas Company, supra, 114 Cal.App.4th at p. 1326.) Cross-complainants settled with plaintiffs and sought a default judgment of $2,886,468 on their cross-complaint for indemnification. Cross-complainants have fully matured indemnification rights and thus cannot secure an adjudication by way of a declaratory relief action. ( Flying Dutchman Park, Inc. v. City and County of San Francisco (2001) 93 Cal.App.4th 1129, 1138 “[[D]eclaratory relief will not be granted where there is a plain, complete, speedy, and adequate remedy at law”]; Mascarin Professional Pharmacy v. Hart (1970) 13 Cal.App.3d 462, 464[“[O]ne who has a fully matured action at law or in equity cannot secure an adjudication of rights by way of an action for declaratory relief, since all of the issues that could be involved in the declaratory relief can equally be resolved in the plenary action”].) Vacating just the default judgment and allowing cross-complainants to obtain a declaratory judgment at this juncture would impermissibly allow them to override cross-defendant’s due process and section 580, subdivision (a) statutory notice rights. We need not address the issue of what result would be in order if cross-complainants were seeking injunctive relief.

 

Finally, there is no merit to cross-complainant’s reliance on Simke, Chodos, Silberfeld & Anteau, Inc. v. Athans (2011) 195 Cal.App.4th 1275, 1284–1294 (Simke, supra,). In Simke, supra, at pages 1278 and 1290 through 1294, our colleagues in Division One of this appellate district held that “relief” as used in section 580, subdivision (a) refers to damages and not attorney fees that are awarded as monetary sanctions for misusing the discovery process. Simke, supra, at pages 1278 and 1290 through 1294 is distinguishable from this case. The present case does not involve attorney fees that are awarded as monetary sanctions for misusing the discovery process. The judgment against cross-defendant includes no attorney fees that are awarded as monetary sanctions for misusing the discovery process. The judgment only includes damages which Simke, supra, at pages 1278 and 1286 through 1294 explains are subject to section 580, subdivision (a). Here, the cross-complaint did not specify a damages amount. And cross-defendant did not receive notice of the damages sought by cross-complainants before the default was entered.

 

IV. DISPOSITION

The judgment is reversed. Upon remittitur issuance, the default is to be set aside. Cross-defendant, Globe–Con Freight Systems, Inc ., shall recover its costs on appeal against cross-complainants, APM Terminals Pacific, Ltd. and Maersk, Inc.

 

We concur: MOSK and KRIEGLER, JJ.