Superior Court of the State of California
City and County of San Francisco
Diane Hegarty, Plaintiff
Anton LaVey, Defendant
ORDER DENYING DEFENDANT'S MOTIONS TO SET ASIDE DEFAULT
AND FOR NEW TRIAL, AND EXPLANATION OF DECISION
Defendant's motions for new trial and to set aside default
must be denied.
1. Entry of default - Order of July 7, 1990.
The entry of default was made by the court as a result of
defendant's failure to participate in reasonable discovery. The
order sanctioned defendant for misconduct and not because he had
neglected to answer and appear in the action.
The motion under Section 473 of the Code of Civil Procedure
lacks merit because:
-- a. It is not timely. The law requires that the application
aside default must be made within six months after the order was
taken. Over eleven months elapsed before defendant took any action.
This alone is sufficient to deny his application.
-- b. Defendant's application is not accompanied by any
Obviously defendant would have a difficult time alleging he has a
meritorious defense when his pleading has been stricken by the court
for his unmeritorious conduct.
-- c. There has been no excusable neglect, mistake, or
the part of anyone. A complete examination of the file, as well as
all of the documents produced in this proceeding reveal that
defendant was fully apprised of everything that occurred.
-- d. Defendant's attorney did not abandon him on the eve of
Defendant signed a substitution of attorney on December 12, 1989.
Thereafter defendant received notices but did not hire an attorney
until August 14, 1991. Significantly, when defendant received notice
of this court's order of August 5, 1991, there apparently was no
problem in finding a competent, enthusiastic attorney who managed to
have his motions on file six days after being hired.
Furthermore there is no sworn affidavit from the former
Mr. Mayer, as required by Section 473 of the Code of Civil
Procedure. In such affidavit the attorney is required to attest that
he caused the defendant's default through inadvertence, surprise, or
neglect. Mr. Own Mayer is listed in the 1991 directory of San
Francisco lawyers at 44 Montgomery Street. He is likewise listed in
the San Francisco telephone book at page 441. There can therefore be
no contention that he is unavailable.
The court specifically finds that the default did not result
the supposed mistake, inadvertence, or surprise of Mr. Mayer.
-- e. Defendant's medical condition: Defendant's supposed poor
health does not qualify as an excusable neglect. He has provided no
medical records or declarations of medical doctors regarding the
state of his health for the period prior to May 12, 1990, when he
refused to submit to a deposition. In fact the medical records and
declarations provided by the defendant show that he could have been
deposed during this time.
His records show that he was admitted to Children's Hospital
emergency room on May 12, 1990 and was diagnosed with mild
congestive heart failure; that his last EKG was in 1981; and that
since that time defendant "did relatively well, with symptoms
occurring in the last week to ten days". He attributes his high
blood pressure to "white coat hypertension" in that his pressures
would be 140 systolic at home at 180 in the doctor's office. At
Children's he was prescribed reduced activity, heart diet, and
follow-up checkups. No hypertensive medications had been prescribed
for many years.
On June 22, 1990 defendant was admitted to San Francisco
Hospital with similar symptoms and was diagnosed with congestive
heart failure, not cardiac arrest. The hospital records state that
defendant "was in his usual state of health until three weeks ago"
and that "he is resistant to most efforts by physicians to initiate
medical therapy" (emphasis added).
Defendant has provided no other medical records, but has
prescription per request of his secretary dated August 20, 1991 for
defendant to avoid "unnecessary stress".
This court does not feel that this litigation can be avoided
unnecessary stress. Aside from this self-serving declaration,
defendant has provided nothing regarding his medical condition after
July 3, 1990. Of interest, however, is a declaration stating that
defendant was "on location for a video shoot sometime between
November 1989 and September 1991, and that he 'delivered a flawless
performance even when stricken with the flu'".
This court therefore finds that the defendant's health was not
cause of his failure to attend to his legal business.
2. Intrinsic fraud or mistake which prevented defendant from
participating in the court proceedings.
Defendant urges that there was some sort of "secret"
regarding his deposition which prevented him from participating in
the court proceedings. However he admits in his declaration that he
received notices after the substitution of attorneys was filed in
December 1989, but that he turned over the entire responsibility of
the lawsuit to Blanche Barton, his secretary. Barton states in her
declaration that she had "no knowledge of deadlines"; however she
corresponded with plaintiff's attorney regarding the notices of
defendant's deposition and the notice of entry of default. Barton
even sent $20 in payment of the $956 sanctions which defendant was
apprised of in the notice of entry of default. At this point
defendant had six months to move to set aside the default, and
judgment on the default was not entered for another year.
Barton also states that she continued to receive mail directed
defendant in 1990 and 1991. Upon receipt of the notice of entry of
judgment, she "promptly" obtained counsel.
For the first time defendant and his secretary state in their
declarations problems with mailbox vandalism. In all of the
documents between the parties over the past two years, there was no
mention of this problem. In fact, if there were such problems,
defendant's daughter could not reasonably rely upon the fact that
she received no correspondence from the plaintiff's attorney in
response to her letter of August 30, 1990 regarding a
conservatorship. It was certainly not plaintiff's responsibility to
monitor defendant's mailbox.
Defendant declares that he sent a letter to a judge on April
1990, but he does not say what judge or provide a copy of the letter
as an exhibit.
Of particular interest is a letter dated June 6, 1990 from
plaintiff's attorney. This letter made reference to plaintiff's
demands and the subject property agreement, and proposed an
alternate settlement plan. This letter also threatens plaintiff with
action by "blind zealots" of defendant's church should she persist
with her lawsuit.
Thus defendant's contention that there was intrinsic fraud
prevented him from participating in this lawsuit plainly has no
merit. He says: "I avoided any involvement with the pending lawsuit,
assuming that it would be postponed until I was able to recover
enough to submit to court proceedings, and that if anything happened
I would be treated fairly."
3. The August 5, 1991 prove-up hearing:
Notices of all proceedings were served on defendant by mail.
asserts, however, that he should have been personally served with a
statement of damages pursuant to Section 425.11 of the Code of Civil
Procedure. Section 425.11 requires such a statement of damages,
before a default judgment may be taken, in a personal injury or
wrongful death action. Plaintiff's action is primarily for breach of
contract, specific performance, fraud and deceit, rescission,
partition, declaratory relief, and emotional distress. The judgment
of August 5, 1991 did not award any damages for emotional distress.
Thus this court finds that the plaintiff's cause of action for
emotional distress is incidental. Where an emotional distress claim
is incidental to the case, it will not be considered "an action to
recover damages for personal injury". (Cf. _Schwab v. Rondel Homes,
Inc._, 53 Cal.3d 428, 432 (2a).)
Therefore the defendant was not entitled to personal service
statement of damages. This is not the ordinary case where a
defendant has merely failed or neglected to answer a complaint. Here
the defendant not only answered, but he filed his own cross-
complaint. There is therefore no reason to give him "one last clear
chance" to respond inasmuch as it has already been determined that
he is not entitled to any further privileges because of his own
misconduct. Like the court of appeal in _Beeman v. Burling_, 216
Cal.App.3d 1586, 1594, this trial court can see no reason to require
service of a statement of damages on a person who has already
appeared in the case and who has been found guilty of disregarding
the procedure of the court and the duties of a diligent, good-faith
Finally no irregularity can be found in the default or the
proceedings. However, even if there were something procedurally
wrong with the manner in which the August 5th judgment were entered,
the defendant has forfeited his right to appear and defend. His
answer has been stricken, and his default was entered long ago.
Thus, even if the court were to set aside the August 5th judgment,
nothing beneficial to the defendant would accrue. All the court can
do is order the plaintiff to send out another notice of time and
place of trial and then proceed with the testimony all over again.
Defendant would have no right to participate in that trial. It would
be a waste of time.
4. The prayer and body of the complaint:
Although not addressed in defendant's moving papers, it
the only relevant issue in this case is the fact that the prayer of
plaintiff's first amended complaint did not specifically quantify
damages. (Section 425.10(b), Code Civ. Proc.)
The first amended complaint did specify amounts in the body of
complaint in the 4th, 6th, and 8th causes of action, but defendant's
demurrer was sustained as to the 4th and 8th causes of action.
Defendant subsequently answered. The court must now determine if the
monetary amount in the judgment awarded to plaintiff is limited to
$300,000 as specifically stated in the 6th cause of action.
In _Becker v. S.P.V. Construction Co._, 27 Cal.3d 489, 494 the
Supreme Court had before it a case involving breach of a
construction contract. The defendants failed to respond to the
complaint, and a default judgment was entered. Over eight months
after entry of the judgment, the defendants moved to vacate the
judgment on the ground that it exceeded the court's jurisdiction
under Section 580 of the Code of Civil Procedure. The motion was
granted by the trial court. The Supreme Court, in remanding the case
with instructions, pointed out that the motion was not timely under
Section 473 of the Code of Civil Procedure; however that a
collateral attack was appropriate if the trial court actually had no
power to enter a default judgment other than in conformity with
Section 580. The prayer in the _Becker_ case requested compensatory
damages in an amount in excess of $20,000 and punitive damages of
$100,000. The body of the complaint was for $20,000 compensatory
damages. The Supreme Court concluded that the trial court exceeded
its authority by entering a judgment for $26,457 and ordered it to
modify the judgment by striking the award of damages in excess of
In _Greenup v. Rodman_, 42 Cal.3d 822, 829, 830 the Supreme
had before it a case similar to the instant case. In Greenup the
defendant's answer was stricken as a sanction for discovery abuses
in a dispute involving a minority shareholder's complaint. In the
prayer of the complaint, plaintiff requested $100,000 in exemplary
and punitive damages and other damages "in a sum that exceeds the
jurisdictional requirements" of the superior court. The Court of
Appeal held that the default for discovery violations exempted the
case from the limit on damages on default judgments. The Supreme
Court reversed, declaring that a default judgment exceeding the
demand must be reduced to conform to the limitations specified in
Section 580 of the Code of Civil Procedure.
It is to be noted, however, that the present case differs in
respects from the above Supreme Court decisions. In the first place
plaintiff's attorney did serve on defendant a statement of damages.
Secondly the complaint here is specific about the other relief
demanded. Plaintiff wants her share of a residence and a business,
and that is exactly what this court has ordered except for $47,000
for rents, $30,000 for attorney's fees, and $175,000 punitive
Also of interest here is the case of _Mikail v. Sauerwald_,
Cal.App.3d 1090. This was an action for personal injuries wherein
the defendant answered, but her answer was stricken because of
discovery misdeeds. A default judgment was entered for $250,000, but
upon defendant's motion it was reduced to $25,000. Since it was a
personal injury case, the trial court and the Court of Appeal felt
that a statement of damages had to be personally served on the
defendant. The statement was in fact served on defendant's attorney.
The Supreme Court granted review in Mikail; on August 8th of this
year, however, it was dismissed as having improvidently been granted
pursuant to Rule 29.4 and was remanded to the Court of Appeal. On
September 5, 1991 the Court of Appeal readmitted the case to the
trial court with instructions to reinstate the plaintiff's original
In light of the above discussion, there appears to be some
in the decisional law where there is only a monetary judgment. In
the present case, however, we need not be overly concerned about the
actual money, except for the amount of the attorney's fees. The
amount of punitive damages is appropriate because it does not exceed
more than three times the actual damages. Defendant cannot in any
manner content that he did not have actual notice of what plaintiff
was demanding. She filed a complaint and an amended complaint to
which defendant responded. He was well aware of what was at stake
from the outset of this litigation. He was given notice of the
prove-up hearing. Yet in spite of having two months to obtain
counsel, no one - not defendant, his personal secretary, nor his
daughter Karla - appeared for that hearing.
Accordingly this court finds that plaintiff's judgment is
should not be set aside, except that there should be a hearing on
the amount of attorney's fees awarded to plaintiff's attorney.
Finally, for future reference and possible review by the Court
Appeal, this court specifically finds that defendant's conduct has
been calculated and designed to prevent plaintiff from obtaining her
rights to the jointly-owned real and personal property. He has
disobeyed a court order and has suffered the consequences. He now
seeks relief from the very court for which he has shown contempt in
the past. The August 5, 1991 judgment has caused him to change his
mind about the court system, but it does not appear that the law
requires this court to help him at his late awakening.
Order: Defendant's motions for new trial and to set aside
and default judgment are denied. Plaintiff on motion is entitled to
an award of reasonable attorney's fees for services performed during
the litigation, including resisting the present proceeding.
Dated: September 27, 1991
/s/ Ollie Marie-Victoire, Judge of the Superior Court
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