Molen

This case arises on consolidated appeals from a judgment in an action which collaterally attacks a default judgment (the collateral action) and from a new judgment in the action in which the default judgment was set aside (the default action).

The original default judgment awarded damages to respondents Morton L. and Marcy Friedman (the Friedmans) for breach of a commercial lease. The collateral action attacked the default judgment on the ground, inter alia, the damages awarded exceed the relief demanded in the complaint. The matter was tried to the court on the pleadings in the collateral action. In the collateral action the trial court set aside the default judgment and directed that, after a new hearing on damages, a new default judgment be entered in the default action.

Appellants, Michael and Drucilla Molen (the Molens), contend the trial court erred in directing .entry of the new default judgment because the complaint in the original default action, measured by the well-pleaded complaint doctrine, does not plead a cause of action for breach of a lease or a guarantee nor does it contain allegations required to sustain an award of damages for loss of future…

The instant appeal of the newly entered default judgment is a direct attack on that judgment; not, as the majority contend, the equivalent of an appeal of the successful collateral attack on the first default judgment.

There are two separate appeals here. One is indeed from the judgment vacating the original default judgment. Independent of this successful collateral attack (which defendants prevailed on and thus have no basis for *1158 complaint) is the other appeal from the new default judgment entered after the previous one was vacated. There is nothing collateral about the latter appeal. It is a direct attack on the legality of the new default judgment.

I concur with the result reached by the majority because the issue of whether plaintiff failed to state a cause of action could have been, but was not, raised by defendants during their appeal of the original default judgment. Palpar, Inc. v. Thayer (1953) 115 Cal.App.2d 333, 338 [ 252 P.2d 51 ] is dispositive. There a complaint in intervention involving property interests in a tractor was the basis for a trial judgment that was reversed on appeal. Following retrial, a second appeal was taken and the appellant argued the…

BLEASE, Acting P.J.

This case arises on consolidated appeals from a judgment in an action which collaterally attacks a default judgment (the collateral action) and from a new judgment in the action in which the default judgment was set aside (the default action).

The original default judgment awarded damages to respondents Morton L. and Marcy Friedman (the Friedmans) for breach of a commercial lease. The collateral action attacked the default judgment on the ground, inter alia, the damages awarded exceed the relief demanded in the complaint. The matter was tried to the court on the pleadings in the collateral action. In the collateral action the trial court set aside the default judgment and directed that, after a new hearing on damages, a new default judgment be entered in the default action.

Appellants, Michael and Drucilla Molen (the Molens), contend the trial court erred in directing entry of the new default judgment because the complaint in the original default action, measured by the well-pleaded complaint doctrine, does not plead a cause of action for breach of a lease or a guarantee nor does it contain allegations required to sustain an award of damages for…