If in a lawsuit a plaintiff seeks punitive damages or civil penalties or both, it is within the sole discretion of the jury to award them, and the only duty the court is tasked with in the determination of its extent is to provide Constitutional oversight.

What happens if a case seeking such relief when the case defaults as a result of the defendant’s failure or omission to promptly respond?

Does the judge become the trier of fact or factfinder if the defendant fails to respond to a complaint seeking damages including civil penalties and/or punitive damages?

If not, does it mean a jury will have to be empaneled, but the defendant will not be heard? What happens when normally a case would default and the plaintiff prevails on all claims due to the defendants failure or omission to respond? In other words: Who is the trier of fact on such default?

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    In what sort of case are "punitive damages or civil penalties" in the "sole discretion of the jury to award "? Can you please give an example? Also I think you re incorrect that in any case "only duty the court is tasked with" ... is "to provide Constitutional oversight". At the very least the Judge also provides procedural oversight, and makes sure that statutory as well as constitutional rules are followed. Commented Dec 13, 2021 at 0:42
  • In, for e.g., common law fraud punitive damages will be a matter of the jury to decide. Yes, you are correct, it is probably overgeneralized what I meant to say is that the judge will not set either whether or not punitive damages be awarded or not only whether the jury has the discretion to award it, the judge will not set the amount or even a minimum of it. It may intervene if the judge finds that the jury's award is unconstitutional so can the appeals court and so on. But otherwise they will not interfere with the jury's award.
    – HJay
    Commented Dec 13, 2021 at 4:59

1 Answer 1


1. The judge.

In default hearings, generally no jury is empaneled; however, the defendant is welcome to attend, and present their case against the default.

On the website of Schneider’s & Associates (“Schneider”) a blog post generally looks into this question from a real estate law perspective, but there is a lot to be considered more generally in connection with Civ. Code § 3294 on exemplary damages. The following text summarizes well the procedure in general:

Where the lawsuit is not contested because defendant has defaulted by failure to file an answer, it is still possible to recover punitive damages if you have clear and convincing evidence of fraud. But you must clear legal hurdles. The Notice of Preservation of Right to Seek Punitive Damages against defendant must be served on the defaulting defendant. California Code of Civil Procedure 425.115. Your Notice must state the exact dollar amount you are going to ask the judge to award. The 425.115 Notice must be served 10 days before you file your application for entry of default. After the ten days (plus five for service by mail), you are free to ask the judge to include the specified amount in the default judgment. Be prepared to prove it.

Apparently an important exception here is the fact that the amount of punitive damages sought — according to the law firm — may be stated. This generally is prohibited by paragraph (e) of Section 3295 of the California Civil Code which proscribes:

No claim for exemplary damages shall state an amount or amounts.

Exemplary and punitive damages are generally treated as synonyms.

  1. The plaintiff, after complying with procedural laws relating to the Notice of Preservation of Right to Seek Punitive Damages and other relating laws, will be entitled to request such relieves, probably during the default hearing where, again, the defendant may be present.

  2. In case of punitive damages, yes, and likely in the case of any civil penalties allowed in California which is supported by the judgement in _Kwan v. Mercedes Benz of N. Am. (1994) 23 Cal.App.4th 174, 185 [28. Cal.Rptr.2d 371] (“Kwan”) which states:

[T]he [civil] penalty under section 1794(c), like other civil penalties, is imposed as a punishment of deterrence of the defendant, rather than to compensate the plaintiff[; i]n this, it is akin to punitive damages.

  1. According to Schneider, no jury will be empaneled merely for the reason of punitive damages during the default hearing, and civil penalties, akin to punitive damages are likely to be treated similarly for the purposes of jury empanelment. Furthermore, a Court of Appeals of California decided that

“Subdivision (e) of section 1794, [...] gives the the trier of fact discretion to award civil penalties” (_Suman v. BMW of North America, Inc. (1994), 23 Cal.App.4th at pp. 9-13.)

where, apparently recognizing the hyptohetical presented here or similar cases where the general rule that the jury decides about civil penalties may be overruled and the function of trier of fact is imposed on another person, in this case the judge in generally referring to the “trier of fact” instead of the jury. Accordingly, by all indication, the judge would be the trier of fact in case of civil penalties, too.

  1. A jury would not be empaneled merely because of the absence of prayer for punitive or exemplary damages, or civil penalties. See answers #3 and # 4.

  2. See answer #1.

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