Pleading: Complaint Does Not Have To Specify The Dollar Amount Of Attorney’s Fees To Justify Default Judgment Based On Future Terminating Sanction Conduct

 

Extensive Opinion Shows Why Due Process and Policy Reasons Justify End Result:  Lex non cogit ad impossibilia.

     In an extensive opinion, the Second District, Division 1 has decided that unspecified attorney’s fees in a complaint can justify a later default judgment entered as a terminating sanction, without offending due process rules applicable to other type of relief (usually, various components of more traditional damages for which some notice has to be given).

     The case that so holds is Simke, Chodos, Silberfeld & Anteau, Inc. v. Athans, Case No. B222175 (2d Dist., Div. 1 May 26, 2011) (certified for publication), authored by Presiding Justice Mallano on behalf of a 3-0 panel.

     Attorney’s fees were deemed not to be the type of “relief” required for articulation under Code of Civil Procedure section 580, in contrast to other types of recovery. Beyond that, common sense prevailed as far as due process analysis was concerned--after all, how could a litigant ever know the amount of fees to be incurred for future discovery violations so as to notify an opposing litigant in advance? As expressed by the appellate court in a paraphrase of a well-known maxim: “The law[, including due process,] never requires impossibilities.”  Cal. Civ. Code section 3531.