How much money do you want?

If there were an Oscar awarded to the most overlooked provision in the California Code of Civil Procedure, it might go to Section 425.10(a)(2).

That subsection requires that if a complaint seeks money damages, "the amount demanded shall be stated."

For an indication of how often this provision is dishonored, I looked at the 50 most recent money damages cases filed in my general jurisdiction civil court, and I found that 33 of them, or two-thirds, did not demand a particular amount. The prayers in these complaints seek "damages according to proof" or use similar unspecific language. (I eliminated personal injury cases from this sample, for a reason explained below.)

Though a code violation, the omission of a demand amount is of no significance when a case settles, and it may even be no obstruction when the case proceeds to trial because "[i]n a contested case ... the 'well settled' rule is that a plaintiff may secure relief different from or greater than that demanded in the complaint." Damele v. Mack Trucks, Inc., 219 Cal. App. 3d 29, 39 (1990).

But if any defendant in a case defaults by failing to file an answer, the plaintiff who overlooks Section 425.10(a)(2) may regret ignoring the section.

Upon a default, under Code of Civil Procedure Section 580(a), "the relief granted to the plaintiff ... cannot exceed that demanded in the complaint." This provision, according to the California Supreme Court, "was designed to insure fundamental fairness" and exists "to insure that defendants in cases which involve a default judgment have adequate notice of the judgments that may be taken against them." Becker v. S.P.V. Constr. Co., 27 Cal. 3d 489, 493-94 (1980).

In Becker, the Supreme Court vacated a $26,457.50 default judgment where a complaint sought "in excess of $20,000" and remanded for the trial court to strike the amount exceeding $20,000.

In accord with Becker's limitation where some damage amount is sought, "[i]f no specific amount of damages is demanded, the prayer cannot insure adequate notice of the demands made upon the defendant." Becker, 27 Cal. 3d at 494 (emphasis added). That is, as the Supreme Court elsewhere stated, "[w]here no amount of damages is demanded, any amount awarded is by definition greater than the amount demanded." Greenup v. Rodman, 42 Cal.3d 822, 826 (1986).

Thus, for instance, where a complaint alleged damages only "in an amount according to proof," the Court of Appeal affirmed an order setting aside as void a $2.5 million default judgment. Levine v. Smith, 145 Cal. App. 4th 1131 (2006).

Personal injury cases are an exception to Section 425.10(a)(2). In complaints seeking damages for personal injury or wrongful death, plaintiffs are forbidden from demanding an amount of money in the complaint, per Section 425.10(b). The legislative purpose of this exception is "to protect defendants in personal injury and wrongful death actions from adverse publicity resulting from prayers in complaints, particularly malpractice complaints." Plotitsa v. Superior Court, 140 Cal. App. 3d 755, 759 (1983).

In such cases, the plaintiff must serve a separate "statement of damages" on the defendant before taking a default, per Section 425.11(c). This demand gives the defendant another chance to answer the charges and constitutes the required notice to a defaulting defendant. (Punitive damages also must be demanded in a statement of damages, under Code of Civil Procedure Section 425.115 and Civil Code Section 3295(e). A similar process also is permitted in some family law cases, see In re Marriage of Eustice, 242 Cal. App. 4th 1291, 1304-05 (2015)).

The personal injury process raises a question. In other civil cases, can the plaintiff "rescue" a complaint that failed to make a demand by serving a statement of damages? After all, if this notice is good enough to allow a default judgment in a personal injury case, it should be sufficient in other cases.

For one type of case, the Court of Appeal has endorsed just this process. In an action for an accounting, the reason for the lawsuit is to determine the amount of damages, such as to calculate the value of a partnership interest. In such a case, the Court of Appeal has stated that "postcomplaint and predefault notice to the defendant," like a statement of damages, will suffice. Ely v. Gray, 224 Cal. App. 3d 1257, 1263 (1990). In fact, another Court of Appeal panel has gone further and held that, in an action for an accounting, the plaintiff need give no notice of a damage amount at all to obtain a default judgment, because the defendant has the information necessary to determine its exposure. Cassel v. Sullivan, Roche & Johnson, 76 Cal. App. 4th 1157, 1163-64 (1999).

But the Court of Appeal also has made clear enough that the rationale of these accounting cases does not apply to other types of civil lawsuits.

Last year, in Dhawan v. Biring, 241 Cal. App. 4th 963 (2015), the Court of Appeal, following several other cases, applied what it called a "strict construction" of the Code of Civil Procedure and held that a statement of damages does not cure the failure to state damages in a complaint, unless the code prohibits pleading damages in the complaint, as it does with personal injury cases.

In Dhawan, even though the complaint sought damages only "according to proof," the plaintiff, before entry of default, served on the defendant a statement identifying over $2 million in damages; the court then awarded a default judgment for about $1.9 million. Dhawan upheld a later decision to vacate that award because "the original trial court exceeded its jurisdiction ... by entering default judgment when plaintiff's complaint did not state the amount of damages being sought." Importantly, Dhawan also held that such a default judgment is void (not merely voidable), which allows a defendant to move to set aside the judgment at any time after it is entered, even many years later.

Under Dhawan and the cases it relies on, a plaintiff typically will be unable to recover money upon default where the complaint fails to demand a specific amount of money, even if the plaintiff serves a statement of damages. In such situations, all is not lost: The plaintiff may file and serve an amended complaint with a dollar-figure demand. Yet this sets the case back to its beginning, wasting several months of time and fees and allowing the defendant a fresh chance to file an answer.

In some cases, plaintiffs' attorneys are uncertain about their damage demand at the time the complaint is filed. In five of the cases in my sample where the complaint made a demand, the attorney dealt with this problem in a useful way: by estimating damages, presumably with a good faith basis. The demands in these complaints contain language like the following: "damages according to proof at trial, estimated to be at least $90,000." This language may comply with Section 425.10(a)(2) and allow the plaintiff to recover up to the estimated amount in the event of default.

In contrast to attorneys who at least estimate damages in the complaint, attorneys who overlook the demand requirement may be stymied, at least temporarily, in the event of a default. If the complaint is a plaintiff's screenplay for a case, a lawyer who aspires to Oscar-like quality in that category may wish to script a demand that complies with Section 425.10(a)(2).