Legal Question in Personal Injury in California

I sued for malicious prosecution. Defendant did not appear. Default was entered. Defendant did not set it aside. I filed for Default judgment. My case was dismissed without prejudice - Judge said that I failed to state the amount of the damage in the original complaint. The original complaint only stated some amount according to proof. It is not your regular PI case the judge said. However, when I filed the default judgment, I prepared the prove-up brief in which I did state the specific amount. The judge refered to some case Fillaty or Filati or Fellatey - I did not have a chance to right it down in court room. There is no transcript. Is there anything I can do now, except for appeal? The statute of limitations is 2 years and it is ran, as the judgment against my defendant when he maliciously sued me, was entered on 4/26/12 and my law suit was filed on 11/15/12, but today it was dismissed.


Asked on 10/16/14, 11:53 am

3 Answers from Attorneys
Anthony Roach Law Office of Anthony A. Roach

It is not legally fair for you to have a complaint served on a defendant that does not state the amount of damages that you are seeking, and then take that person's default. The defendant has the right to be apprised of the amount you seek when they consciously default. Proving up the amount later is insufficient, because the defendant was already in default.

The judge should have required you to file and serve an amended complaint on the defendant. This would have been fair and would have apprised the defendant of the amount of damages that you sought.

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Answered on 10/16/14, 11:56 am

That's one of the oddest rulings I've ever heard. The judge can't dismiss your case at a default prove-up hearing. He can enter judgment against you for failure of proof, perhaps, or deny the prove-up and direct you to file and serve an amended complaint, but I can't think of any authority for dismissing the action. I'm not even sure that dismissal without prejudice is an appealable order. I would file a motion for reconsideration and concurrently a motion for a new trial right away.

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Answered on 10/16/14, 12:51 pm
Anthony Roach Law Office of Anthony A. Roach

It looks like Mr. McCormick is back in the cycle of giving bad legal advice again, which is sad because these posts become public and are relied on by others.

All dismissals are judgments, and are appealable. Anyone who has handled appeals (which I do routinely) knows this. Whether or not you should appeal is another matter.

I do agree that the judge was wrong to dismiss, but his advice to file a motion for reconsideration or a motion for a new trial are the wrong moves in an already bad case. You need to get a lawyer immediately and file a motion to vacate the dismissal with an amended complaint. You will of course have to have the amount of damages in the complaint and then have that complaint served if your motion is granted.

If the motion is denied, then I would recommend appealing, because refiling is going to be subject to the statute of limitations. You do need to get an attorney to help you with this, because the proper motion timely filed will extend your time to appeal, but a lot of this is technical and time consuming.

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Answered on 10/16/14, 2:06 pm


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