Pleading: If You Want To Recover Fees In Default Judgment, Make Sure Basis and Prayer For Fees Are Included In Complaint

Fourth District, Division 1 Strikes Fees From Default Judgment For Failure to Plead Fees in Complaint.

     Here is one of those nuts and bolts decisions that reminds all litigators to plead fee entitlement and include a prayer for fees in their complaints if they want to recoup fees at the default judgment stage of litigation.

     In Law Office of Don Detisch v. Woolley, Case No. D055281 (4^th Dist., Div. 1 Aug. 23, 2010) (unpublished), plaintiff was granted a default judgment, including $3,110 in attorney’s fees as part of collection efforts. The problem was that plaintiff never expressly requested an attorney’s fees award in its complaint. On appeal, the Fourth District, Division 1 found that the default judgment only could encompass the relief sought in the complaint, requiring that the fee award had to be stricken. (Wiley v. Rhodes, 223 Cal.App.3d 1470, 1474-1475 (1990) [no default attorney fee award where fee entitlement not pled in the complaint and no fee demand included in the prayer]; Becker v. S.P.V. Construction Co., 27 Cal.3d 489, 495 (1980) [default judgment fee award reversed became complaint did not pray for attorney’s fees].)

     So, the lesson here is to plead fee entitlement and include a fee prayer in the complaint—at the outset—in the event a named defendant fails to appear and is subject to judgment under the default judgment procedure.