Eustice v. Eustice

Filed 12/10/15
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re the Marriage of ANNETTE and
JOSEPH EUSTICE.

ANNETTE J. EUSTICE,
E061140
Respondent,
(Super.Ct.No. IND098305)
v.
OPINION
JOSEPH A. EUSTICE,

Appellant.

APPEAL from the Superior Court of Riverside County. Gregory J. Olson,

Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Law Offices of Richard S. Trugman and Richard S. Trugman for Appellant.

Richard C. Houghton for Respondent.

I

INTRODUCTION

Joseph A. Eustice appeals a default judgment disposing of reserved issues in a

marital dissolution proceeding. Joseph contends the judgment is void because it exceeds

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the relief his former wife, Annette J. Eustice, requested in her petition for marital

dissolution. Joseph also contends the trial court abused its discretion in striking his

response to the dissolution petition, leading to entry of the default judgment.

This appeal raises an issue of first impression as to whether a default judgment is

void for lack of notice where the marital dissolution petition requests the court to

determine the property rights of the parties but does not list any property. Rather than

listing assets and debts, the petition states that the parties will stipulate to division of the

assets and debts and, if this does not occur, the petitioner will amend the petition. Before

either of these alternatives occurred, the court struck Joseph’s answer to the petition,

conducted a prove-up hearing, and entered a default judgment disposing of the marital

property. Prior to the court striking Joseph’s answer, both parties served on each other

preliminary declarations listing all known assets and debts subject to disposition.

Normally, for notice purposes, a default judgment cannot dispose of property

which has not been listed in the marital dissolution petition or an attached property

declaration. Rather than concluding, here, that the default judgment is void because it

disposes of property not listed in the petition, we hold the default judgment is valid and

enforceable because Joseph appeared in the proceedings by filing a response listing assets

and debts subject to disposition, and Joseph received notice of the assets and debts

disposed of in the default judgment by being served with the Annette’s two preliminary

declarations. Furthermore, any deficiency in notice was waived by Joseph’s response to

the petition and preliminary declaration, both of which listed the property disposed of in

the default judgment. We therefore reject Joseph’s contentions and affirm the judgment.

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 II

FACTS AND PROCEDURAL BACKGROUND

Joseph and Annette married in 1989 and separated in August 2009. Annette filed

a petition for dissolution of marriage (Petition) on August 6, 2009. Annette checked the

Petition box under section 4, entitled, “Separate Property,” and stated: “Petitioner

requests that the assets and debts listed . . . below be confirmed as separate property.”

Rather than listing the assets and debts, Annette stated: “Petitioner requests confirmation

of all earnings and assets acquired before, during and after the date of marriage, including

inherited items, and after date of separation. Petitioner is unaware of all such assets and

debts, and will file a stipulation for judgment fully disposing of all assets and debts. In

the event the same is not filed, petitioner will amend this petition.”

Annette also checked box b in section 5 of the Petition, entitled “Declaration

regarding community and quasi-community assets and debts as currently known.” Box b

states: “All such assets and debts are listed.” Annette added: “Petitioner does not know

the full extent of such assets and debts. Petitioner will file a stipulation for judgment

fully disposing of all such assets and debts. In the event that the same is not filed,

petitioner will amend this petition.” In section 7 of the Petition, Annette stated:

“Petitioner requests that the court grant the above relief and make . . . other orders as

follows: . . . [x] Property rights be determined.”

On August 28, 2009, Joseph filed a response and request for dissolution of

marriage (Response). Joseph listed the following items in section 4, entitled “Separate

Property”: “Pre-Marital and post separation earnings, property and accumulations,”

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“Gifts and inheritances,” “Traceable interests per Family Code Sections 2580, 2581 and

2640,” “1928 Victrola,” and “Washington Mutual, Las Vegas account.” Joseph indicated

this property was his own separate property. In section 5 of his response, entitled

“Declaration regarding community and quasi-community assets and debts as currently

known,” Joseph stated that all such assets and debts were listed in attachment 5b.

Attachment 5b included a list of the following items:

“1. Residence on Calle de las Rosas, Rancho Mirage, California, subject to debt.

“2. Residence on Grey Wolf Trail in La Quinta, California, subject to debt.

“3. Household furniture and furnishings.

“4. 2004 Lexus, subject to debt.

“5. 2005 Lexus, subject to debt.

“6. Bank of America accounts.

“7. Etrade account.

“8. Ameritrade IRA account.

“9. Starwood 401k.

“10. 2008 tax refund.

“11. Miscellaneous credit card debt.

“12. Other assets and debts unknown at this time. Respondent prays leave to amend this

Response when the same is ascertained or according to proof.”

Joseph also stated in section 9 of his Response: “Respondent requests that the

court grant the above relief and make . . . other orders as follows: . . . [x] Property rights

be determined.”

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 On September 1, 2009, Annette filed a motion for child support, spousal support,

injunctive order, and attorney fees and costs. Annette also filed an income and expense

declaration. Joseph filed a responsive declaration to Annette’s motion and an income and

expense declaration.

On September 9, 2009, Joseph filed a preliminary declaration of disclosure, which

included (1) a completed schedule of assets and debts (form FL-142); (2) a completed

income and expense declaration (form FL-150); (3) “a statement of all material facts and

information regarding valuation of all assets that are community property or in which the

community has an interest”; (4) “A statement of all material facts and information

regarding obligations for which the community is liable”; and (5) “An accurate and

complete written disclosure of any investment opportunity, business opportunity, or other

income-producing opportunity . . . .”

On October 7, 2009, the trial court heard Annette’s support motion. The court

ordered Joseph to pay spousal and child support, and Annette’s attorney fees. The

parties’ attorneys stipulated in court that the parties could not withdraw funds from the

Ameritrade account except to pay for their son’s UCLA expenses and $500 for his high

school placement expenses.

Order Joseph Produce Ameritrade Documents

On October 26, 2009, the court filed and served on the parties “Findings and Order

After Hearing,” regarding the October 7, 2009 hearing (October 26, 2009 order). The

October 26, 2009 order included the following property orders:

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“1) Petitioner, Annette Eustice, is awarded exclusive use of the family residence located

at . . . Calle De Las Rosas, Rancho Mirage, . . . the furnishings located there. . . .

“2) Respondent may withdraw funds from the parties’ Ameritrade account to pay for

attorney fees.

“3) The parties may not withdraw any funds from the Ameritrade account except to pay

for UCLA expenses for the parties’ adult son, and $500 for high school placement

expenses for the parties’ minor child, . . .

“4) Respondent shall promptly provide Petitioner with an accounting of any monies

withdrawn for the UCLA expenses. Respondent shall further provide to Petitioner a copy

of monthly statements for the Ameritrade account. Respondent shall also provide to

Petitioner an accounting of any monies withdrawn after September 1, 2009.”

On October 27, 2009, Annette filed and served on Joseph a preliminary

declaration of disclosure, which included (1) a completed schedule of assets and debts

(form FL-142); and (2) a completed income and expense declaration (form FL-150).

Annette’s schedule of assets and debts itemized all known assets and debts, including the

Calle de las Rosas and Grey Wolf Trail properties, three vehicles, a checking account, an

Ameritrade stock account and retirement account, and Bank of America and Chase credit

card debts. The declarations were signed under penalty of perjury and served on Joseph.

In March 2011, Annette filed a motion for sanctions under Code of Civil

6
Procedure section 177.5,1 based on Joseph’s failure to comply with the October 7, 2009

court order. Annette stated in her supporting declaration that Joseph had not provided her

with an accounting of the money withdrawn from the Ameritrade account or monthly

statements. Annette had repeatedly requested Joseph to provide the documents.

In May 2011, Annette filed a stipulation and order regarding her motion for

sanctions. The parties stipulated Joseph would on or before June 20, 2011, comply with

the October 26, 2009 findings and order, requiring Joseph to provide an accounting of the

Ameritrade account and documents showing withdrawals.

In April 2012, upon bifurcation, the trial court terminated the parties’ marital

status.

In May 2012, Annette filed a motion for modification of spousal support and

request for attorney fees, costs, sanctions, and striking Joseph’s Response (motion to

strike). Annette stated that Joseph had provided her with only one year of monthly

Ameritrade statements, through the previous summer. The statements showed Joseph

had removed substantial funds from the Ameritrade account. No further statements were

provided or any accounting for the money removed from the account. Annette had

attended three hearings seeking court orders for production of the Ameritrade records.

Joseph had still not produced any records of his withdrawals from the Ameritrade

account or records showing the disposition of the money withdrawn. Annette therefore

filed a motion to strike Joseph’s Response and enter default judgment under section

1
Unless otherwise noted, all statutory references are to the Code of Civil
Procedure.

7
2023.010, subdivision (g), and section 2023.030 for disobeying the court’s orders to

provide discovery and for misusing the discovery process. Annette also requested

monetary sanctions under section 177.5 for Joseph’s violation of court orders, as an

alternative remedy, to punish Joseph for failing to provide court-ordered discovery.

Annette attached to her motion to strike Joseph’s Response, a current income and

expense declaration stating the nature and amount of all known assets and debts. Also

attached was Annette’s declaration stating she had previously agreed to allow Joseph to

withdraw funds from the Ameritrade account to pay for their oldest child’s college

expenses on the condition Joseph promptly provide Annette with an accounting of all

money withdrawn from the account since their separation, and promptly provide her with

all account statements received. Joseph refused to do so, as agreed and as ordered by the

court, causing Annette to incur substantial attorney fees in enforcing the court-ordered

production of the Ameritrade documents. Attached to Annette’s declaration were two

Ameritrade statements showing the funds in the Ameritrade account had decreased from

approximately $111,000 in September 2009, to $35,266 as of June 2011.

Order Striking Joseph’s Response

On June 18, 2012, the trial court heard Annette’s motion to strike. The court

ordered stricken Joseph’s Response. On August 21, 2012, the trial court entered findings

and an order after hearing, regarding the hearing on June 18, 2012. The orders included

an order striking Joseph’s Response pursuant to section 2023.010, subdivision (g).

On December 11, 2012, Annette filed and served on Joseph a request to enter

default on the Petition and documents supporting default judgment, including a final

8
declaration of disclosure, income and expense declaration, and property declaration. On

January 8, 2013, the trial court notified Annette of the court’s rejection of her default

prove-up documents on the ground section 19 of her supporting declaration was

inconsistent. The date of marital dissolution was inconsistent with the court records.

Also, the property listed in her declaration and the judgment was inconsistent with the

property declarations.

Default Prove-Up Hearing and Judgment

On January 14, 2013, Annette filed a request to set an uncontested matter for a

default judgment prove-up hearing on the Petition. The default prove-up hearing was

heard on February 27, 2013.2 Annette’s attorney informed the court she had submitted

every declaration and specified every known asset. The trial court acknowledged it had

struck Joseph’s Response on June 18, 2012, and the matter was being heard as a default

prove-up. Therefore Annette was not required to serve Joseph with the prove-up packet.

During the hearing, Annette’s attorney explained that $700,000 was owed on the Calle de

las Rosas residence, which was more than the property was worth. The court had

previously ordered that Annette was permitted to remain in the home. Joseph then

convinced Annette to accept transfer of title to the residence to Annette, which Annette

thought the court had ordered. Annette’s misunderstanding resulted in Annette, as new

title holder, becoming solely responsible for the debt owed on the home. Joseph also

2 The reporter’s transcript indicates the hearing was on February 23, 2013,
whereas the register of actions and various pleadings state the hearing was on February
27, 2013.

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persuaded Annette to transfer to Joseph the Grey Wolf Trail property, which had $50,000

in equity.3 After reviewing the evidence and hearing testimony from Annette, the trial

court ordered that all previous orders would remain in effect and that Annette was to

prepare a proposed judgment, consistent with the court’s findings and orders on February

27, 2013.

In June 2013, Annette submitted to the trial court and served on Joseph a proposed

findings and order after default prove-up hearing on February 27, 2013. Attached were

documents entitled “Annette Eustice Property Division Reconciliation Sheet,” “Asset

Analysis by Annette,” and “Requested Separate and Community Property Allocation,”

containing detailed lists of the community property assets and debts.

3 Pursuant to California Rules of Court, rule 8.252 and Evidence Code sections
451, 452, and 459, Joseph requests judicial notice of grant deeds recorded on May 29,
2012, for two properties located on Grey Wolf Trail, La Quinta, California and on Calle
de las Rosas, Rancho Mirage, California. Joseph states in his judicial notice request that
it is unclear whether the grant deeds were presented to the trial court. Joseph asserts the
grant deeds are relevant to show the trial court did not have jurisdiction to transfer both
properties to Annette, when Annette had previously transferred to Joseph in May 2012
the La Quinta property as his separate property.

Joseph’s request for judicial notice of the grant deeds is denied on the ground the
grant deeds were not presented to the trial court: “Reviewing courts generally do not take
judicial notice of evidence not presented to the trial court. Rather, normally ‘when
reviewing the correctness of a trial court’s judgment, an appellate court will consider only
matters which were part of the record at the time the judgment was entered.’ [Citation.]
No exceptional circumstances exist that would justify deviating from that rule, either by
taking judicial notice or exercising the power to take evidence under Code of Civil
Procedure section 909.” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th
434, 444, fn. 3.)

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Joseph’s Motion to Set Aside Default

In July 2013, Joseph filed a request to set aside default entered on February 27,

2013. Joseph argued the judgment must be set aside because Annette’s Petition did not

list all community property disposed of in the default judgment. The judgment was thus

void because it exceeded the scope of the Petition. Annette filed a responsive declaration

to Joseph’s motion, stating that Joseph’s default had been entered and therefore he had no

standing unless the court set aside his default.

On August 19, 2013, the court filed and entered a findings and order after hearing,

which attached and incorporated Annette’s proposed findings and order after default

prove-up hearing.

On October 28, 2013, the trial court heard Joseph’s motion to set aside default.

Annette’s attorney objected to the trial court hearing the motion on the ground default

had been entered against him in December 2012, and his motion was brought more than

six months later. Therefore Joseph did not have standing to bring the motion. Joseph’s

attorney argued Stein v. York (2010) 181 Cal.App.4th 320 (Stein), In re Marriage of

Andresen (1994) 28 Cal.App.4th 873 (Andresen), and In re Marriage of Kahn (2013) 215

Cal.App.4th 1113 [Fourth Dist., Div. Two] (Kahn) supported setting aside default on the

ground there was no declaration of property filed with the Petition, and therefore under

section 580, the trial court did not have jurisdiction over the property disposed of in the

default judgment.

Annette’s attorney argued the three cited cases were distinguishable in that they all

were appeals from default judgments, whereas in the instant case, a judgment had not yet

11
been entered. There only was entry of default. In addition, the cases were factually

distinguishable and Joseph had filed a responsive pleading listing all the property he

wanted adjudicated. The parties also exchanged preliminary declarations and disclosures.

The trial court ordered Annette to file a proposed judgment based on the allegations in

the Petition and declarations served on Joseph. The court indicated that Joseph’s remedy

would then be to appeal the judgment as opposed to seeking relief in the trial court by

means of a motion to set aside default.

On February 26, 2014, the trial court entered and filed a judgment on reserved

issues and filed a notice of entry of the judgment. The judgment stated property division

was ordered as set forth in the attachment to the judgment. The attachment included a list

of orders dividing and distributing the following marital property listed in Annette’s

October 2009 preliminary declaration:

1. Calle de las Rosas residence

2. Grey Wolf Trail property

3. Household furnishings, furniture, and appliances

4. Ameritrade accounts

5. Two vehicles

6. El Paseo bank account balance

7. Two Federal Kemper Life insurance policies

Joseph filed a notice of appeal of the February 26, 2014 judgment.

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 III

SCOPE OF RELIEF REQUESTED

Joseph contends that because Annette’s Petition did not identify specific assets

and debts subject to disposition by the court, the default judgment is improper and void

under section 580. Joseph further argues that under Stein, supra, 181 Cal.App.4th 320,

Annette’s preliminary declarations did not rectify this notice defect in the Petition.

“It is a fundamental concept of due process that a judgment against a defendant

cannot be entered unless he was given proper notice and an opportunity to defend.

[Citations.] California satisfies these due process requirements in default cases through

section 580.” (In re Marriage of Lippel (1990) 51 Cal.3d 1160, 1166 (Lippel).) Section

580, subdivision (a), provides in part: “The relief granted to the plaintiff, if there is no

answer, cannot exceed that demanded in the complaint, . . .” “‘[T]he primary purpose of

the section is to guarantee defaulting parties adequate notice of the maximum judgment

that may be assessed against them.’” (Stein, supra, 181 Cal.App.4th at p. 325, quoting

Greenup v. Rodman (1986) 42 Cal.3d 822, 826.) “Section 580 ‘ensure[s] that a defendant

who declines to contest an action . . . [is] not . . . subject[ed] . . . to open-ended liability’

and operates as a limitation on the court’s jurisdiction.” (Stein, at p. 325; Greenup, at p.

826.) “‘The notice requirement of section 580 was designed to insure fundamental

fairness.’” (Stein, at p. 325, quoting Becker v. S.P.V. Construction Co. (1980) 27 Cal.3d

489, 494.) The limitation on default judgments under section 580 applies to marital

dissolution proceedings. That section “requires that a default judgment in a dissolution

action which is greater than the amount specifically demanded in the petition be

13
considered void as beyond the court’s jurisdiction. . . . [Citations.]” (In re Marriage of

Wells (1988) 206 Cal.App.3d 1434, 1438 (Wells).)

Joseph relies on Stein for the proposition that, because the default judgment in the

instant case disposes of property which was not listed in Annette’s Petition, the judgment

is void. In Stein, supra, 181 Cal.App.4th 320, a legal malpractice action, the defendant

appealed a $2.65 million default judgment on the ground the judgment was void under

section 580 because the complaint failed to state the amount of damages requested. The

court in Stein, agreed and reversed the default judgment. (Id. at pp. 323, 327.)

As explained in Stein, “If a default judgment awarded against a defendant exceeds

the relief demanded in the complaint [citation], or is a different form of relief than that

demanded in the complaint [citation], the defendant is ‘effectively denied a fair hearing

. . . [citations]’ [citation]. Thus, a default judgment in an amount greater than the amount

demanded is void and subject to either direct or collateral attack.” (Stein, supra, 181

Cal.App.4th at p. 326.) “Where ‘no specific amount of damages is demanded, there is no

adequate notice to the defendant—and a default judgment entered under those conditions

is void. [Citation.]’” (Id. at p. 327, quoting Janssen v. Luu, supra, 57 Cal.App.4th at p.

279.) The Stein court held that because the legal malpractice complaint did not specify

the amount of damages sought, the complaint could not support a default judgment in any

amount and therefore the default judgment was void. (Stein at p. 327.)

Stein is distinguishable from the instant case. Stein is not a marital dissolution

case and involves entry of default because of the defendant’s refusal to file an answer to

the legal malpractice complaint. In the instant case, Joseph filed a response to Annette’s

14
Petition but it was stricken because Joseph refused to comply with the court’s discovery

order. Also, here, Annette and Joseph filed preliminary declarations and disclosure

declarations listing the property subject to disposition, and the Petition provided notice of

the type of relief requested.

Joseph argues that under Stein, the preliminary declarations did not provide

adequate notice of potential liability. In Stein, the court rejected the plaintiff’s contention

that the defendant’s active participation in discovery and other pretrial procedures waived

the defendant’s right to object to the amount of damages awarded. (Stein, supra, 181

Cal.App.4th at pp. 325-326.) The Stein court stated that, “[u]nder section 580 actual

notice of the damages sought is not sufficient; due process requires ‘formal notice.’ . . .

[C]onstructive notice of potential liability does not satisfy section 580.” (Id. at p. 326.)

This is because due process requires that defendants be told exactly what their exposure

is so they can make an informed decision when deciding whether to respond to a

pleading. (Ibid.) “The purpose of section 580 is to assure a defendant that if he does not

contest the action, the judgment taken against him will not go beyond the prayer of the

complaint. . . .” (Wells, supra, 206 Cal.App.3d at p. 1437.)

The complaint or petition is not necessarily the sole statement of relief that forms

the boundaries of relief granted in a default judgment. Section 580 specifies two other

plaintiff-generated documents which limit certain default judgments: a section 425.11

statement of damages in personal injury and wrongful death actions, and written notice of

the exact amount of punitive damages plaintiff seeks, as required by section 425.115. A

petitioner’s list of assets and debts in a property declaration, preliminary declaration, and

15
disclosure declaration fulfill the same notice function in a marital dissolution as do a

statement of damages and punitive damages notice, provided the declarations are served

on the respondent before entry of default. We therefore treat Annette’s preliminary

declarations the same as a statement of damages or punitive damages notice. The

Petition and Annette’s declarations served on Joseph before his Response was stricken

satisfied Joseph’s right to notice of the relief requested and the property subject to

disposition.

Family Code section 2103 indicates that a preliminary declaration serves the

purpose of putting the parties on notice of the property at issue in a marital dissolution

action: “In order to provide full and accurate disclosure of all assets and liabilities in

which one or both parties may have an interest, each party to a proceeding for dissolution

of the marriage or legal separation of the parties shall serve on the other party a

preliminary declaration of disclosure under Section 2104 and a final declaration of

disclosure under Section 2105, unless service of the final declaration of disclosure is

waived pursuant to Section 2105 or 2110, . . .” (Fam. Code, § 2103.)

Annette was not required to serve Joseph with a final declaration because “In the

case of a default judgment, the petitioner may waive the final declaration of disclosure

requirements . . . and shall not be required to serve a final declaration of disclosure on the

respondent nor receive a final declaration of disclosure from the respondent. However, a

preliminary declaration of disclosure by the petitioner is required.” (Fam. Code, § 2110.)

This is because a preliminary declaration serves the purpose of ensuring notice of

potential liability, just as would a section 425.11 statement of damages in personal injury

16
and wrongful death actions, or a section 425.115 written notice of the exact amount of

punitive damages.

As in the instant case, in the marital dissolution case, Andresen, supra, 28

Cal.App.4th 873, the husband moved to set aside default judgment on the ground the trial

court awarded to the wife default relief which went beyond the scope of the marital

dissolution petition. The wife did not attach any values to the assets or debts listed in her

petition property declaration and did not request division of the assets and debts in any

particular manner. (Id. at p. 877.) The Andresen court held that the default judgment was

not void under section 580, and the trial court did not err in denying the motion to set

aside entry of default and vacate the default judgment. (Id. at p. 883.)

In reaching its holding, the Andresen court noted that “‘The [Family Law Act

([former] Civ. Code, § 4000 et seq.)] abolished the traditional complaint, which often

contained the standard prayer for general relief that we found . . . to be sufficient notice

of a possible support award. The Act empowered and directed the Judicial Council to

create, as a substitute for the traditional complaint, a mandatory printed standard form

petition. (Civ. Code, § 4503.)’”4 (Andresen, supra, 28 Cal.App.4th at p. 878, quoting

Lippel, supra, 51 Cal.3d at pp. 1169-1170.)

“‘[I]n 1970, the Judicial Council promulgated rule 1281 of the California Rules of

Court, which established a mandatory standard form dissolution petition. This standard

4“Effective January 1, 1994, Family Code section 300 et seq. superseded the
Family Law Act without substantive change.” (In re Marriage of Cantarella (2011) 191
Cal.App.4th 916, 919, fn. 1.)

17
form petition, which, with minor modifications over the years, remains in use today,

requires a petitioner to set forth certain statistical information in spaces provided, and to

check boxes, from a series provided, which indicate the remedy or relief requested (e.g.,

legal separation, dissolution, or nullity of the marriage) and the specific relief being

sought (e.g., property division, spousal support, child custody, child support or attorney

fees). [¶] ‘Coupled with the requirement that the respondent be served with a copy of the

petition (Civ. Code, § 4503), the manner in which these boxes are checked, or not

checked, informs and puts the respondent on notice of what specific relief the petitioner

is, or is not seeking.’” (Andresen, supra, 28 Cal.App.4th at pp. 878-879, quoting Lippel,

supra, 51 Cal.3d at pp. 1169-1170.)

In Lippel, a marital dissolution action, the court held that a plaintiff who checks

the appropriate box in a form complaint provides adequate notice of the type of relief

awarded in a default. (Lippel, supra, 51 Cal.3d at p. 1169; Finney v. Gomez (2003) 111

Cal.App.4th 527, 537.) Relying on Lippel, the Andresen court concluded that “due

process is satisfied and sufficient notice is given for section 580 purposes in marital

dissolution actions by the petitioner’s act of checking the boxes and inserting the

information called for on the standard form dissolution petition which correspond or

relate to the allegations made and the relief sought by the petitioner. The [Lippel]

opinion does not suggest that any greater specificity is required. Although we

acknowledge the Supreme Court had no need to address the point, we find nothing in the

language of Lippel which compels a conclusion that the amount of the relief requested, as

contrasted with the type of the relief requested, must be inserted in the relevant form if

18
the form does not itself expressly demand such data.” (Andresen, supra, 28 Cal.App.4th

at p. 879.)

The Andresen court concluded that, “because the wife properly and fully

completed the petition and its necessary attachments to the extent of the relief requested

on the face of those documents, the husband was given adequate notice that the wife

sought a division of the property and liabilities identified in the wife’s papers. [Citation.]

If he desired to be heard on the subject of the valuation and division of the listed items,

he should have appeared.” (Andresen, supra, 28 Cal.App.4th at pp. 879-880.)

Unlike in Andresen, here, Annette did not attach a property declaration to her

Petition. Instead, she stated she was unaware of all such assets and debts but would file a

stipulation for judgment fully disposing of all assets and debts or, alternatively amend her

Petition if a stipulation was not filed. The issue here is whether the default judgment

exceeds the scope of the Petition where the Petition requests the court to determine the

marital property rights and liabilities but does not identify specific property. Joseph

argues that Annette’s failure to specify any property or debts at issue deprived him of

notice of the relief awarded in the default judgment. We disagree.

Although the Petition does not list specific property and debts, Joseph appeared in

the Petition proceeding by filing a Response, which requested the same relief for a

determination of property rights requested in the Petition. In addition, Joseph included in

his Response a property declaration listing specific marital assets and debts subject to

disposition. Annette’s preliminary declarations also provided Joseph with notice of the

property disposed of in the default judgment. While generally, a default dissolution

19
judgment may not exceed the petitioner’s demands, and any greater or differing relief is

beyond the court’s jurisdiction (Lippel, supra, 51 Cal.3d at p. 1167, Andresen, supra, 28

Cal.App.4th at p. 886), here, the court had jurisdiction, not only to grant the relief

requested in Annette’s Petition, but also to dispose of the property listed in Annette’s

preliminary declarations.

Joseph cites Kahn, supra, 215 Cal.App.4th 1113, for the proposition that the

default judgment is void because Annette failed to list in the Petition the assets and debts

disposed of by default judgment. In Kahn, we reversed default judgment, holding that

the default judgment awarding $275,000 in damages for breach of fiduciary duty

improperly exceeded the scope of the marital dissolution petition. (Id. at p. 1116.) In

Kahn, the petitioner checked the form complaint box for “[o]ther” relief, without

specifying the nature or amount of the relief sought, other than stating: “‘Relief for

[Robert’s] breach of fiduciary duty pursuant to Family Code sections 1100 et seq.’”

(Ibid.) The trial court struck the respondent’s answer to the marital dissolution petition as

a discovery sanction and awarded the petitioner $275,000 for breach of fiduciary duty.

We held in Kahn that the petitioner did not provide sufficient notice under section 580 of

the relief awarded in the default judgment, because the petitioner did not specify the

nature and amount of damages requested. (Kahn, at p. 1116.)

We explained in Kahn that “It would be stretching Andresen too far to apply it in

this case. Admittedly, we are dealing with a form complaint in a marital dissolution

action. However, the checkbox for ‘[o]ther’ relief is distinguishable from the checkboxes

for a division of community property. It is a catchall category; it could encompass

20
practically any kind of relief, including relief that is not statutorily required in a marital

dissolution action. The respondent is therefore entitled to notice of the specific nature

and amount of any ‘[o]ther’ relief sought before defaulting.” (Kahn, supra, 215

Cal.App.4th at p. 1119.)

Kahn is distinguishable because, in the instant case, Annette did not request

“other” relief. Annette checked the boxes for division of community property and

determination of property rights. By checking those boxes, it was clear Annette was

seeking disposition of all of the parties’ assets and debts. Although Annette should have

listed in her Petition the property subject to disposition, Annette placed Joseph on notice

of the type of relief requested and further notified him in her preliminary declarations and

disclosure declarations of the property subject to disposition.

Joseph’s Response to the dissolution Petition and preliminary declaration

demonstrated he was on notice of the relief Annette was seeking and the property subject

to disposition. If he desired to be heard on the subject of the valuation and division of the

listed items, he should have avoided having his Response stricken by complying with the

court’s orders to produce necessary discovery documents. (Andresen, supra, 28

Cal.App.4th at pp. 879-880.) Joseph should not be permitted to benefit from his

recalcitrance, and set aside the default judgment based on a lack of notice of the relief

requested in the Petition, when the record shows he received notice through the Petition

and Annette’s preliminary declarations, and requested the same relief in his own

Response. The default judgment was therefore not void under section 580.

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 IV

ORDER STRIKING RESPONSIVE PLEADINGS

Joseph contends the trial court abused its discretion in striking his Response on

June 18, 2012, pursuant to section 2023.010, subdivision (g). He argues the court did not

have authority to issue a terminating sanction where there was no discovery motion to

compel or any finding of a violation of a prior court order to provide discovery. We

disagree.

Section 2023.010, subdivision (g) provides: “Misuses of the discovery process

include, but are not limited to, the following: [¶] . . . [¶] (g) Disobeying a court order to

provide discovery.” Section 2023.030 provides: “To the extent authorized by the chapter

governing any particular discovery method or any other provision of this title, the court,

after notice to any affected party, person, or attorney, and after opportunity for hearing,

may impose the following sanctions against anyone engaging in conduct that is a misuse

of the discovery process: [¶] . . . [¶] (d) The court may impose a terminating sanction by

one of the following orders:

“(1) An order striking out the pleadings or parts of the pleadings of any party engaging in

the misuse of the discovery process. [¶] . . . [¶]

“(4) An order rendering a judgment by default against that party.”

“Misuse of the discovery process may result in the imposition of a variety of

sanctions. These include payment of costs, sanctions barring the introduction of certain

evidence, sanctions deeming that certain issues are determined against the offending

party, and sanctions terminating an action in favor of the aggrieved party. (Code Civ.

22
Proc., §§ 2023.020, 2023.030.) Misuse of the discovery process includes failing to

respond or submit to authorized discovery, providing evasive discovery responses,

disobeying a court order to provide discovery, unsuccessfully making or opposing

discovery motions without substantial justification, and failing to meet and confer in

good faith to resolve a discovery dispute when required by statute to do so. (Code Civ.

Proc., § 2023.010, subds. (d)-(i).) The court may impose sanctions ‘[t]o the extent

authorized by the chapter governing any particular discovery method or any other

provision of this title . . . .’ (Code Civ. Proc., § 2023.030.)” (Karlsson v. Ford Motor Co.

(2006) 140 Cal.App.4th 1202, 1214 (Karlsson).)

The trial court has broad discretion to impose sanctions for violations of court

orders, including those intended to compel compliance with a party’s disclosure and

discovery obligations, subject to reversal only for arbitrary or capricious action. (Parker

v. Wolters Kluwer United States, Inc. (2007) 149 Cal.App.4th 285, 297; Karlsson, supra,

140 Cal.App.4th at p. 1217.) “A decision to impose the ultimate sanction—a judgment in

the opposing party’s favor—should not be made lightly. ‘But where a violation is willful,

preceded by a history of abuse, and the evidence shows that less severe sanctions would

not produce compliance with the discovery rules, the trial court is justified in imposing

the ultimate sanction.’” (Parker, at p. 297, quoting Mileikowsky v. Tenet Healthsystem

(2005) 128 Cal.App.4th 262, 279-280.)

The striking of Joseph’s Response did not constitute an excessive sanction.

Joseph violated the trial court’s October 26, 2009 order that “Respondent shall promptly

provide Petitioner with an accounting of any monies withdrawn for the UCLA expenses.

23
Respondent shall further provide to Petitioner a copy of monthly statements for the

Ameritrade account. Respondent shall also provide to Petitioner an accounting of any

monies withdrawn after September 1, 2009.” Joseph persisted for over two and a half

years in refusing to produce the court-ordered Ameritrade documents, despite the trial

court’s order and Annette’s repeated requests for the documents.

The trial court’s order to produce the Ameritrade documents constituted a

discovery order. It required Joseph to produce material documents requested by Annette,

which revealed account activity and the value of funds contained in the Ameritrade

account. The court-ordered documentation was crucial to a determination of the rights of

the parties to the Ameritrade funds. Joseph committed willful discovery abuse, which

caused the unavailability of material evidence. Joseph’s ongoing recalcitrance for over

two and a half years interfered with the trial court’s ability to properly dispose of the

marital property and subjected the Ameritrade funds to covert, unrestrained, improper

expenditure by Joseph. Under such circumstances, the trial court’s order striking

Joseph’s response was not an abuse of discretion and was proper under sections

2023.010, subdivision (g), and 2023.030, subdivision (d).

Joseph argues the trial court was precluded from entering default judgment

because there was no entry of default. However, the record on appeal, including the

clerk’s transcript, indicate that the court entered default after Annette filed on December

11, 2012, a request to enter default, along with her default judgment prove-up documents.

Although the court rejected Annette’s request for default judgment because of

inconsistencies in her prove-up documents, there is nothing in the record showing that the

24
court also rejected entry of default. Annette opposed Joseph’s motion to set aside default

on the ground default had been entered in December 2012, and therefore Joseph did not

have standing to set aside default. There is nothing in the record indicating the trial court

rejected this premise that Joseph lacked standing based on entry of default, particularly

since the court thereafter proceeded with a default judgment hearing. Furthermore, an

order entering default was not necessary because the trial court previously struck

Joseph’s Response.

Citing In re Marriage of Loh (2001) 93 Cal.App.4th 325 (Loh), Joseph argues the

trial court did not have authority to dismiss his Response under section 2023.030 of the

Civil Discovery Act because the trial court’s order that Joseph produce Ameritrade

documents is not the same as a discovery order to produce documents. In Loh, a child

support modification proceeding, the father failed to comply with his agreement to

provide the mother with requested tax returns. During the child support modification

hearing, the trial court ordered child support increased. The father appealed the order,

arguing it was, in effect, an improper discovery sanction. The Loh court agreed,

concluding the order was “deep down, really only a discovery sanction” directed at the

father for not turning over the tax returns. (Loh at p. 330.)

The Loh court reversed the support order on the grounds there was insufficient

evidence supporting the increase in support, noting: “We reverse the ensuing child

support order. Evidence of lifestyle, particularly a lifestyle subsidized by a new

‘nonmarital partner’ . . . is not a cheap substitute for proper discovery of income reported

on tax returns.” (Loh, supra, 93 Cal.App.4th at p. 327.) The Loh court further reasoned

25
that the mother could have brought a motion to compel the tax returns and requested

sanctions, such as an issue sanction, evidence sanction, or monetary sanction. The court

stated: “[I]n the face of the Legislature’s having provided a clear method of relief for

Victor’s failure to turn over current income tax returns, and Pamela’s not having availed

herself of it, we cannot justify the order before us as a de facto discovery sanction.” (Id.

at p. 331.)

Loh is inapposite and does not support Joseph’s contention the trial court was

precluded from striking his Response. The instant case does not concern support

modification proceedings or an order imposed as a de facto sanction for noncompliance

with an agreement to produce documents. The instant case involves sanctions

appropriately imposed under section 2023.030 on the ground Joseph willfully violated the

court’s order to produce Ameritrade documents. There is no merit to Joseph’s argument

that there was no discovery request, no order to produce documents pursuant to a

discovery motion, and no violation of a discovery act order. The trial court’s order to

produce Ameritrade documents was a discovery order. Joseph’s failure over a lengthy

period of time to comply with the trial court’s order to produce Ameritrade documents

violated the Discovery Act and was an abuse of discovery. The trial court’s order

striking Joseph’s Response therefore was authorized and proper under sections 2023.010,

subdivision (g), and 2023.030, subdivision (d).

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 V

DISPOSITION

The judgment is affirmed. Annette is awarded her costs on appeal.

CERTIFIED FOR PUBLICATION

CODRINGTON
J.

We concur:

RAMIREZ
P. J.

KING
J.

27