Notice of Damages: Required for Entry of Default in Action for Accounting?

  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. Code of Civil Procedure section 580 therefore provides the relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint or in a statement of damages as required by section 425.11. Section 425.11 refers to the required statement which must be served prior to entry of default in an action for personal injury or wrongful death. In those actions, the complaint must not allege a specific dollar amount of damages.The purpose of sections 580 and 425.11 is to guarantee defaulting parties adequate notice of the maximum judgment that may be assessed against them.

  Is notice required in an action for an accounting? The cases conflict. One line of cases concludes that notice of damages must be given before a default is entered. Another line concludes notice is not necessary.

  The recent case of Warren v. Warren discusses the conflicting authority, holding notice need not generally be given but finds an exception to the rule: where plaintiff knew what his damages were and defendants did not have access to that information. In that case, notice must be given before default is entered.

  Given conflicting authority, it would be prudent to provide notice of damages in the complaint and prayer, or via a statement of damages served with the summons and complaint, in any action for an accounting.

  Mr. Daymude consults with clients and accepts cases involving defaults, default judgments, and actions for an accounting, including appeals from any such judgment. For other types of cases accepted, please scroll the Home and My Practice pages. If you are seeking a legal consultation or representation, call Michael Daymude at 818-971-9409.

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