Yu v. Liberty Surplus Ins. Corp., No. G054522 (D4d3 Jan. 4., 2019)
Although basically everyone does it, it’s not really proper to to demand unquantified “damages according to proof” in a complaint. In most cases, Code of Civil Procedure § 425.10(a) requires a demand for money damages to state the amount of the demand. But it usually doesn’t matter, because a court can award relief irrespective of the prayer. § 580(a). Except, of course, in the case of a default judgment, for which an award more than the amount demanded is void as a matter of law. Id.; see also § 585(a), (b). Which means, effectively, if you allege “according to proof” you’ll need to amend to put in a number and re-serve process before you take a default. Or else you get zero.
The complaint here said according to proof and nobody bothered to amend to put in a number. So Plaintiff’s $1.2 million default judgment on a third party indemnity cross-claim assigned to her by the original defendant is void. Nor was the judgment saved by the fact that the cross-claim incorporated the original complaint—which contained a $10 million demand—by reference. The incorporation was expressly “for identification and informational purposes only.” Even if the cross-complaint could theoretically incorporate a demand contained in some other pleading—which seems like a questionable way to give notice—the reference here was too vague and equivocal to meet the general elements of the incorporation by reference doctrine.
Affirmed.
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