Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PC033829, Ronald Holly E. Kendig. Reversed and remanded with directions.
The deRubertis Law Firm, David M. deRubertis and Michael H. Leb for Plaintiff and Appellant.
No appearance for Defendants and Respondents.
KITCHING, J.
INTRODUCTION
Plaintiff appeals a judgment entered for defaulting defendants in her personal injury action based on allegations that she was falsely imprisoned, beaten, and raped in a private room of defendants’ bar, and then run over by a vehicle in the parking lot outside the bar. The trial court erroneously required plaintiff to produce evidence of a prima facie case of defendants’ liability in the default prove-up hearing; as to liability, the defendants’ default admits all well-pleaded allegations of the complaint, and no further proof of liability is required of plaintiff. The trial court correctly stated that it exercised a “gatekeeping” function to ensure that a default judgment was entered only in appropriate cases, but the trial court’s gatekeeping function does not involve requiring plaintiff to prove a prima facie case of defendants’ liability. Among other “gatekeeping” functions, the trial court must analyze the complaint to insure that it alleges all required elements of each cause of action. We conclude that plaintiff’s complaint did adequately allege all required elements of its seven causes of action and its claim for conspiracy. We therefore reverse the judgment entered for the defaulting defendants, and remand the case for a prove-up hearing of plaintiff’s damages.
FACTUAL AND PROCEDURAL HISTORY
On October 24, 2003, plaintiff Nicole Weight filed a complaint for negligence (premises liability), assault, battery, false imprisonment, sexual battery (Civ. Code § 1708.5), intentional infliction of emotional distress, violation of Civil Code section 51.7 and civil conspiracy against defendant Mugsy’s and Louis Campanelli doing business as Mugsy’s.
The complaint was also brought against 150 unnamed defendants, whom plaintiff later voluntarily dismissed.
The complaint alleged that on October 27, 2002, Weight, 34 years old, met her pool team members for an organized pool event at Moose Lodge. After the pool competition ended, Weight, a team member, and other persons went to Chuey’s in Northridge and then to defendant Mugsy’s, where they arrived at about 7:00 p.m. After entering the Mugsy’s premises, Weight and a member of the group went to use the restrooms, where Weight became separated from the person who accompanied her to the restroom and from her group.
The complaint alleged, upon information and belief, that after entering the restroom, Weight was taken by unknown defendants to other areas of the premises, including possibly a secure private room that was physically separated from the area used by patrons. When Weight’s group realized she was nowhere to be found and searched the premises for her, they tried to gain access to the private room, to which they were denied access. While this occurred, employees or agents of Mugsy’s knew and saw what was happening in the private room, yet failed to intervene.
The complaint alleged, upon information and belief, that Weight was raped and physically beaten on the Mugsy’s premises, was then taken outside to the pavement, where she was run over by an unknown person driving an unidentified vehicle. While people in Weight’s group searched for her, a person from the private room entered from the back door and asked if anyone knew a person named Nicole. Weight was found outside the premises.
The complaint alleged that Mugsy’s, and Campanelli dba Mugsy’s, maintained premises frequented by a notoriously rowdy, raunchy crowd and is known as a “biker bar” where illegal and dangerous activities occurred with great regularity. The management and ownership of Mugsy’s knew about, condoned, and participated in this illegal and dangerous behavior, and encouraged frequent sales of illegal narcotics on the premises as a means of attracting patrons. The complaint alleged that defendant Campanelli himself brought illegal narcotics onto the premises. The complaint alleged that the nature of the activities occurring at the premises, including frequent illegal drug use and sales, and the nature of patrons frequenting the premises, rendered it foreseeable that aggressive and violent behavior would occur at the premises.
Defendants were properly served with a copy of the summons and complaint and failed to answer or appear and defend the complaint. A default requested by Weight was entered on August 17, 2004. On September 24, 2004, Weight requested entry of a court judgment for damages and costs totaling $15,002,103.
Weight filed her declaration of damages on August 4, 2006. It stated that Weight had no independent memory of events on October 27, 2002, the date she was sexually assaulted by an unknown assailant and run over by an unknown vehicle in the Mugsy’s parking lot, which left her a paraplegic. A Traffic Collision Report, attached to Weight’s declaration, stated that the vehicle that ran over her did not brake before impact. Weight left a blood stain on the surface of the parking lot, and both her feet had tire prints on them. Weight was taken to Holy Cross Medical Center, where she arrived at 11:05 p.m. After emergency treatment she was transferred to the intensive care unit in “extremely critical condition.” Weight had sustained multiple bilateral rib fractures, pulmonary contusions, a fracture of C2 lamina in the pedicle with subluxation, an L1-L2 bursting fracture, right clavicle fracture, and contusion and laceration of the liver. On November 1, 2002, Weight was admitted to the operating room with “severe multiple trauma with fracture dislocation of L1-L2 with complete paraplegia.” After nearly a month in intensive care, Weight was transferred to the regular floor in stable condition on November 25, 2002, and was discharged to Rancho Los Amigos Rehabilitation Center for physical and occupational therapy on November 27, 2002.
Weight’s declaration stated her initial records at Rancho Los Amigos National Rehabilitation Center reflected that Weight had sustained a C2-3 fracture and an L1-2 burst fracture with bilateral rib fractures, hemothorax, skull laceration, and a possible sexual assault with vaginal lacerations. Weight remained at Rancho Los Amigos until she was discharged on June 6, 2003. When admitted, Weight had no movement in her lower extremities. She suffered severe spinal cord injuries, including cervical and thoracic fractures. She was currently classified as an incomplete paraplegic because she had minor sensation and movement in her right lower extremity. Her medical bills totaled $952,608.87.
On December 10, 2007, plaintiff submitted briefing for a prove-up hearing and submitted an additional prove-up package on January 30, 2008. It included a declaration by Raymond C. Look, a member of the Moose Club Pool League who was with Weight at the Moose Club, Chuey’s, and Mugsy’s on October 27, 2002. Look’s declaration stated that he, Weight, and some friends arrived at Mugsy’s at about 7:00 p.m. Inside Mugsy’s, Look and Weight walked toward the restrooms together. Look first entered the men’s room, and Weight proceeded toward the ladies’ room, near the back door. After using the restroom, Look waited in the hallway for Weight to come out, but he never saw her come out. He asked another woman waiting for people to come out of the restroom if she would enter and check to see if Weight was still inside. The woman checked, but told Look the women’s restroom was empty. He then looked for Weight in the bar area, and asked two female friends in their group to check the ladies’ room again. They did not find Weight there. Look went through the back door to the parking lot but could not find Weight there. He returned to the bar and saw people going into a room marked “Private.” He knocked on the door and a woman opened the door a crack, said “This is a private room,” and closed the door. Look then walked to his truck outside the building, and drove down the alley and surrounding blocks looking for Weight. He returned to Mugsy’s, told his friends he could not find Weight, and he and two friends checked the parking lot again and then returned to the bar. As he stood by the “private” room a bartender knocked on the door and said something to the person inside, who slammed the door on the bartender. The bartender said to Look, “Makes you wonder what goes on in there doesn’t it!” After their last attempt to find Weight, one of the people from the private room came in the back door and asked if anyone knew somebody named Nicole. Look ran toward the back door, and as he passed the person said “So that’s why you kept looking in the private room.” When Look got to Weight’s side in the parking lot, Fire Department paramedics were pulling up and the woman from the private room was kneeling by her side. Weight lay on her back. The paramedics put Weight in the ambulance and took her to Holy Cross Medical Center.
On January 30, 2008, the trial court found that Weight’s lack of memory of what happened on October 27, 2002, meant that she could not by her own testimony establish a prima facie case that she was assaulted or injured on defendant’s premises or as a result of defendant’s negligence or fault. The trial court concluded that Weight was not able to establish a prima facie case of causation and liability against the defaulting defendants. The trial court therefore ordered that plaintiff should recover nothing by the action and ordered judgment entered for defendants Mugsy’s and Louis Campanelli dba Mugsy’s.
Weight filed a timely notice of appeal from the judgment filed on January 30, 2008.
ISSUES
Weight claims on appeal that:
1. The trial court erroneously required Weight to proffer evidence of liability beyond the allegations in her complaint, despite defendants’ default, which constituted an admission or concession of all liability issues and facts properly pleaded in the complaint;
2. The admitted allegations state causes of action;
3. The trial court misperceived its role as a “gatekeeper” in the context of a request for entry of a default judgment.
DISCUSSION
1. In the Default Prove-Up Hearing, Plaintiff Was Not Required to Provide Evidence of a Prima Facie Case of Liability, But the Trial Court Was Required to Exercise a “Gatekeeper” Function
The trial court denied Weight’s request to enter a default judgment and entered judgment for defendants because Weight could not establish a prima facie case of causation and liability against the defaulting defendants. The trial court stated that Code of Civil Procedure section 585 required plaintiff to set forth a prima facie case against a defaulting defendant. The trial court also cited the statement that “it is the duty of the court to act as gatekeeper, ensuring that only the appropriate claims get through.” (Heidary v. Yadollahi (2002) 99 Cal.App.4th 857, 868.) The first statement, requiring a plaintiff to prove a prima facie case of liability against a defaulting defendant, is not correct. The second statement, requiring the trial court to act as a gatekeeper, is true, but the nature of that “gatekeeping” function does not involve a determination that plaintiff has provided prima facie evidence of liability.
a. Defendants’ Default Admitted Well-Pleaded Allegations of the Complaint, And No Further Proof of Liability Was Required
Code of Civil Procedure section 585, subdivision (b) states that after a defendant fails to answer the complaint and does not file a demurrer, enumerated motions, or a petition for writ of mandate, the clerk of the court, upon plaintiff’s written application, shall enter the default of defendant. “The plaintiff thereafter may apply to the court for the relief demanded in the complaint. The court shall hear the evidence offered by the plaintiff, and shall render judgment in the plaintiff’s favor for that relief, not exceeding the amount stated in the complaint, in the statement required by Section 425.11, or in the statement provided for by Section 425.115, as appears by the evidence to be just.”
A defendant’s default has long been treated as admitting well-pleaded allegations of the complaint, and as to these admissions no further proof of liability is required. This has been true for more than a century. “It is claimed that the judgment is void because the record does not show that the court heard or required evidence in proof of the plaintiff's case. This was not necessary on default in an ordinary action, where the summons is personally served, except where the taking of an account, or the proof of damages or of some other fact, is necessary to enable the court to give judgment or carry it into effect. (Code Civ. Proc., sec. 585.) Here no such proof was required. The default of the defendant in an ordinary action of this character admits, so far as such defaulting defendant is concerned, the absolute verity of all the allegations of the complaint. No amount of evidence could establish the facts more effectually for the purpose of rendering the judgment, as against such defendant.” (Los Angeles v. Los Angeles F. & M. Co. (1907) 150 Cal. 647, 649.)
Later cases support this rule. (O’Brien v. Appling (1955) 133 Cal.App.2d 402, 42; Muller v. Muller (1965) 235 Cal.App.2d 341, 343-344; Martin v. General Finance Co. (1966) 239 Cal.App.2d 438, 443; Robinson v. Early (1967) 248 Cal.App.2d 19, 22; Bristol Convalescent Hosp. v. Stone (1968) 258 Cal.App.2d 848, 859; Morehouse v. Wanzo (1968) 266 Cal.App.2d 846, 850; Flood v. Simpson (1975) 45 Cal.App.3d 644, 651, fn 12; Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361; Falahati v. Kondo (2005) 127 Cal.App.4th 823, 829.)
By contrast, plaintiff must produce proof of damages despite defendant’s default. (Ostling v. Loring (1994) 27 Cal.App.4th 1731, 1745.) The plaintiff must produce evidence sufficient to establish a prima facie case for damages. (Johnson v. Stanhiser, supra, 72 Cal.App.4th at p. 361.)
Stanhiser refers to plaintiff being required to produce evidence sufficient to make a prima facie case for damages. “After considering the evidence presented, the trial court erroneously applied a preponderance of the evidence standard in determining whether plaintiff was entitled to an award of damages. The correct standard of proof requires that the plaintiff merely establish a prima facie case.” (Johnson v. Stanhiser, supra, 72 Cal.App.4th at p. 361.)
Therefore it was error for the trial court to require Weight to provide prima facie evidence as to liability; that showing was only required for Weight’s damages.
b. The Trial Court Exercises Several “Gatekeeper” Functions in a Default Proceeding
The trial court correctly stated that it exercises a “gatekeeper” function in a default proceeding. The trial court does this in several ways.
A default judgment is void which awards damages exceeding the damages specified in the complaint or statement of damages. (Greenup v. Rodman (1986) 42 Cal.3d 822, 826; Yeung v. Soos (2004) 119 Cal.App.4th 576, 582.) The amount of damages, moreover, cannot be so out of proportion to the evidence that it shocks the conscience. (Uva v. Evans (1978) 83 Cal.App.3d 356, 363-364.)
The relief allowable by default is limited not only by the prayer for damages but also by the substantive allegations of the complaint. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 539.) “The court cannot allow a plaintiff to prove different claims or different damages at a default hearing than those pled in the complaint.” (Heidary v. Yadollahi, supra, 99 Cal.App.4th at p. 868.) Moreover, the allegations of the complaint must adequately allege all required elements of each cause of action. A judgment against the defendant cannot rest on a complaint that fails to state a cause of action, as a defendant who fails to answer admits only facts well pleaded and no more. (Falahati v. Kondo, supra, 127 Cal.App.4th at p. 829.) The absence of the defaulting defendant does not improve or perfect inadequate allegations into complete causes of action. (Taliaferro v. Taliaferro (1959) 171 Cal.App.2d 1, 8.) If the complaint fails to state a cause of action, it is erroneous to grant a default judgment. (Ferraro v. Camarlinghi, supra, at p. 539; Morehouse v. Wanzo, supra, 266 Cal.App.2d at p. 850.)
2. Plaintiff’s Complaint Adequately Alleged Seven Causes of Action and a Conspiracy Claim
a. Negligence
Negligence requires a plaintiff to prove duty, breach, causation, and damages. Although a business owner “is not an insurer of the safety of its patrons, the owner does owe them a duty to exercise reasonable care in keeping the premises reasonably safe.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) A defendant may owe a duty to protect another from conduct of third parties if the defendant has a “special relationship” with the other person. (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235.) A bar proprietor has a special relationship with a bar patron and invitee, and owes a duty to undertake reasonable steps to secure common areas against foreseeable criminal acts by third parties that are likely to occur in the absence of such precautionary measures, and “to take such ‘appropriate action as is reasonable under the circumstances to protect patrons.’ ” (Id. at p. 244.) This latter duty includes the “duty to respond to events unfolding in [defendants’] presence by undertaking reasonable, relatively simple, and minimally burdensome measures” to protect patrons. (Id. at p. 245.)
The complaint alleges that Mugsy’s and Campanelli dba Mugsy’s breached their duty to maintain the premises in a reasonably safe condition, and to warn of known or knowable dangers, by allowing to exist, creating, and/or failing to warn patrons on the premises of a dangerous environment. As a result of defendant’s breach of their duty, Weight was injured when she was held captive against her will, beaten, brutally raped, and left in the parking lot where she was run over by a motor vehicle. The complaint alleged that while Weight was held captive against her will, beaten, and raped in the bar’s private room, employees or agents of Mugsy’s knew and saw what was happening in the private room yet failed to intervene. The complaint further alleged that Mugsy’s and Campanelli dba Mugsy’s maintain premises frequented by a notoriously rowdy, raunchy crowd; that Mugsy’s is known as a “biker bar” where illegal, dangerous activities occur with great regularity; that management and ownership of Mugsy’s know about, condone, and participate in this illegal and dangerous activity; that Mugsy’s ownership knows about and encourages the sale of illegal narcotics on the premises, and that Campanelli himself brings illegal narcotics onto the premises. The complaint further alleges that the nature of the activities occurring at the premises, including frequent illegal drug use and sale, and the nature of the patrons frequenting the premises, rendered it foreseeable that aggressive and violent behavior would occur at Mugsy’s.
Thus the complaint adequately alleges a cause of action for negligence.
b. Assault
The tort of assault recognizes the individual’s right to peace of mind and to live without fear of personal harm. (Thing v. La Chusa (1989) 48 Cal.3d 644, 649.) The elements of civil assault are: demonstration of an unlawful intent by one person to inflict immediate injury on the person of another then present. (Lowry v. Standard Oil Co. (1944) 63 Cal.App.2d 1, 6-7.) “The tort of assault is complete when the anticipation of harm occurs.” (Kiseskey v. Carpenters’ Trust for So. California (1983) 144 Cal.App.3d 222, 232.)
The complaint alleges that defendants Mugsy’s and Campanelli dba Mugsy’s attacked, beat, and raped Weight, placing her in fear of immediate harmful and offensive contact, and to the extent that certain defendants did not personally engage in this conduct, they aided, abetted, or otherwise provided assistance and encouragement to the perpetrators of the conduct. The complaint alleged that in doing these acts, defendants intended to cause or to place Weight in great apprehension of an immediate harmful or offensive contact with Weight’s person, and that Weight did not consent to defendants’ acts. Thus the complaint alleges the necessary elements of civil assault.
c. Battery
“The elements of a civil battery are: ‘ “1. Defendant intentionally did an act which resulted in a harmful or offensive contact with the plaintiff's person; [¶] 2. Plaintiff did not consent to the contact; [and] [¶] 3. The harmful or offensive contact caused injury, damage, loss or harm to the plaintiff.” ’ ” (Fluharty v. Fluharty (1997) 59 Cal.App.4th 484, 497.)
The complaint alleges that defendants Mugsy’s and Campanelli dba Mugsy’s harmfully, offensively, and injuriously touched Weight by physically beating and raping her, and if certain defendants did not personally engage in this conduct, they aided, abetted, or otherwise provided assistance and encouragement to the perpetrators of the conduct. The complaint also alleges that defendants intended to make harmful and offensive contact with Weight’s person, that Weight did not consent to defendant’s acts, and that Weight sustained general damages and special damages to be proved at trial. Thus the complaint alleges all necessary elements of the tort of civil battery.
d. False Imprisonment
The tort of false imprisonment derives from Penal Code section 236: the “ ‘unlawful violation of the personal liberty of another.’ ” (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 715.) “[T]he tort consists of the ‘ “nonconsensual, intentional confinement of a person, without lawful privilege, for an appreciable length of time, however short.” ’ ” (Ibid.) Restraint may be effectuated by physical force, threat of force or of arrest, confinement by physical barriers, or by any other form of unreasonable duress. The mental state required for false imprisonment is intent to confine, or to create a similar intrusion. (Id. at pp. 715-716.)
The complaint alleges that defendants Mugsy’s and Campanelli dba Mugsy’s seized Weight against her will and without her consent for an appreciable time, and forcibly held her on the premises or restrained her against her will to effectuate her beating and rape. The complaint alleged that lawful privilege did not authorize defendants’ conduct. Thus the complaint alleges all necessary elements of the tort of false imprisonment.
e. Sexual Battery in Violation of Civil Code Section 1708.5
The tort of sexual battery in violation of Civil Code section 1708.5 requires that the defendant intend to cause a “harmful or offensive” contact, that the batteree suffered a “sexually offensive contact,” and that the batteree did not consent to the contact. (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1225.)
The complaint alleges that defendants Mugsy’s and Campanelli dba Mugsy’s acted with intent to cause harmful or offensive contact, or the imminent apprehension of harmful or offensive contact, with Weight by using their intimate parts or by touching Weight’s intimate parts as defined by Civil Code section 1708.5; that defendants engaged in such harmful and/or offensive contact with their and/or Weight’s intimate parts, and did cause the imminent apprehension of such contact; and that Weight did not consent to these acts, which were not engaged in by lawful privilege. To the extent that certain defendants did not personally engage in this conduct, they aided and abetted or otherwise provided assistance and encouragement to the perpetrators of the conduct.
Thus the complaint alleges the necessary elements of the tort of sexual battery in violation of Civil Code section 1708.5.
f. Intentional Infliction of Emotional Distress
Intentional infliction of emotional distress requires: “ ‘ “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.... ” Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.’ [Citation.] The defendant must have engaged in ‘conduct intended to inflict injury or engaged in with the realization that injury will result.’ [Citation.]” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) The conduct must be directed at the plaintiff or occur in the presence of a plaintiff of whom defendant is aware. (Ibid.)
The complaint alleges that the conduct of defendants Mugsy’s and Campanelli dba Mugsy’s was extreme and outrageous, exceeded the bounds of conduct tolerated in a civilized society, was intentional and/or carried out despite a known substantial certainty that it would result in Weight’s severe emotional distress, and caused Weight to suffer severe emotional distress. Thus the complaint alleges the necessary elements of intentional infliction of emotional distress.
g. Violation of Civil Code Section 51.7, Subdivision (a)
Civil Code section 51.7 stated in 2002, in relevant part: “(a) All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of their race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, disability, or position in a labor dispute, or because another person perceives them to have one or more of those characteristics.” A cause of action for violation of section 51.7, subdivision requires the commission or threat of violence against the plaintiff’s person or property because of one or more of the enumerated characteristics. (Coon v. Joseph (1987) 192 Cal.App.3d 1269, 1277.)
The complaint alleges that defendants Mugsy’s and Campanelli dba Mugsy’s committed acts of violence against plaintiff because of her female gender, which deprived plaintiff of her right to be free from violence due to her sex in violation of Civil Code section 51.7; and that to the extent that defendants did not personally engage in this conduct, they aided, abetted, or otherwise provided assistance and encouragement to the perpetrators of the conduct. Thus the complaint alleges the necessary elements of a violation of Civil Code section 51.7, subdivision (a).
h. Conspiracy
“ ‘Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. [Citation.] By participation in a civil conspiracy, a coconspirator effectively adopts as his or her own the torts of other coconspirators within the ambit of the conspiracy. [Citation.] In this way, a coconspirator incurs tort liability co-equal with the immediate tortfeasors.’ [Citation.] [¶] The act done and resulting damage to the plaintiff, not the conspiracy to act, is the essence of civil conspiracy. [Citation.] The elements of an action for civil conspiracy are (1) formation and operation of the conspiracy, and (2) damage to the plaintiff resulting from an act or acts done in furtherance of the common design. The existence of a civil conspiracy makes each participant in the wrongful act responsible as a joint tortfeasor for all damages resulting from the wrong, whether or not a participant was a direct actor and regardless of the degree of his activity.” (Klistoff v. Superior Court (2007) 157 Cal.App.4th 469, 479.)
The complaint alleged that defendants Mugsy’s and Campanelli dba Mugsy’s conspired and agreed among themselves to engage in a plot designed to deprive Weight of her personal safety, whose purpose was to tortiously and wrongfully cause physical harm to Weight as alleged in the complaint. The complaint alleged that defendants acted in furtherance of the conspiracy, and in so doing caused great physical harm to plaintiff. The complaint contains the necessary allegations of conspiracy.
i. Conclusion
Judgment was erroneously entered in favor of the defaulting defendants. We reverse that judgment and remand the matter for a prove-up hearing in which the trial court will hear plaintiff’s evidence, and if it determines that plaintiff has established a prima facie case for her damages, will enter a default judgment for plaintiff.
DISPOSITION
The judgment is reversed, and the matter is remanded with directions for the trial court to conduct a prove-up hearing in which it will hear plaintiff’s evidence, and if it determines that plaintiff has established a prima facie case for her damages, will then enter a default judgment for plaintiff. Costs on appeal are awarded to plaintiff Nicole Weight.
We concur: KLEIN, P. J., CROSKEY, J.
The California Judges Benchbook: Civil Proceedings Before Trial (CJER 2d ed., Vol. 2, 2008) Defaults and Defeault Judgment, section 16.29, page 390 states, regarding proof of a cause of action in a hearing on a request to enter a default judgment: “The allegations of the complaint are not deemed admitted by the default. The plaintiff must prove each essential element of the complaint entitling the plaintiff to a recovery against the defendant. The plaintiff may not introduce evidence on claims not pleaded in the complaint, because this would operate as an amendment to the complaint, opening the default and entitling the defendant to respond. Jackson v Bank of America (1986) 188 CA3d 375, 387-389[.]” The first two sentences are incorrect, as stated in City of Los Angeles v. Los Angeles Farming & Milling Co. and related cases, cited ante: the default does admit well-pleaded allegations of the complaint, as to which no further proof is necessary. Moreover, the first two sentences quoted from the California Judges Benchbook have no support in Jackson v. Bank of America. Jackson provides authority only for the third sentence from this quotation.