Marriage of Heurlin CA4/3

Filed 9/23/20 Marriage of Heurlin CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re the Marriage of DEBRA M. and
JOHN M. HEURLIN.

DEBRA M. HEURLIN et al.,
G057724
Respondents,
(Super. Ct. No. 18D007868)
v.
OPINION
JOHN M. HEURLIN,

Appellant.

Appeal from a judgment of the Superior Court of Orange County, Daphne
Grace Sykes, Judge. Reversed in part and remanded.
John M. Heurlin, in pro. per., for Appellant.
No appearance for Respondent Debra M. Heurlin.
Law Offices of Garrett S. Gregor and Garrett S. Gregor for Respondent
David J. Fuller.

* * *
 John M. Heurlin (John) appeals from a default judgment in the dissolution
1
of his marriage to Debra M. Heurlin (Debra). He raises three primary arguments on
appeal. First, he contends the default judgment is void because the court improperly
determined the parties’ property rights even though Debra’s petition for dissolution did
not specify any property subject to division. Second, he claims the court erred by
granting two ex parte requests because they did not comply with various procedural
requirements. Finally, he argues one of the ex parte requests was improper for the
additional reason that it did not comply with the rules governing joinder of third parties
and interpleader.
John’s latter two contentions have no merit. With respect to John’s first
contention, the court may have erred by entering a default as to the disposition of
property because Debra’s petition never detailed the property at issue. But it is unclear if
Debra’s preliminary declaration of disclosure listed the necessary assets and debts. We
accordingly reverse in part and remand for further proceedings.

FACTS

John and Debra married in October 1984. In September 2018, Debra filed
a petition for dissolution of marriage. The petition was presented on Judicial Counsel
form FL-100. In section 9 of that form, Debra checked a box requesting the court to:
“Confirm as separate property . . . assets and debts in [the following list].” The following
list states, “The full nature and extent of the separate property claims of the parties are
unknown to Petitioner at this time. Petitioner reserves the right to amend this Petition
upon proof or at the time of trial.” Likewise, in section 10 of the form, Debra checked a
box requesting the court to: “Determine rights to community and quasi-community
1
We refer to the parties by their first names for ease of reading and to avoid
confusion, and not out of disrespect.

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assets and debts. All such assets and debts are listed [as follows].” The following list
states, “The full nature and extent of the community property and quasi-community
property claims of the parties are unknown to Petitioner at this time. Petitioner reserves
the right to amend this Petition upon proof or at the time of trial.”
On November 27, 2018, Debra served a deposition subpoena for the
production of business records on the Law Offices of Garrett S. Gregor, who was counsel
for the defendants in another case involving John (the FairWage matter). One of the
defendants in the FairWage matter, David J. Fuller, has filed a respondent’s brief in this
appeal. Among other things, Debra’s subpoena sought records regarding any settlement
agreements involving John or payments made to him in the FairWage matter.
On December 18, 2018, Debra served a preliminary declaration of
disclosure. The next day, John filed a motion to quash Debra’s deposition subpoena for
the production of business records. Among other things, he claimed the documents
sought were not relevant to the dissolution proceedings because Debra’s petition for
dissolution did not identify any settlement funds from the FairWage matter. On
December 20, 2018, Debra filed a request for temporary emergency order requesting the
court to freeze all funds from the settlement agreement in the FairWage matter and to
order the funds turned over to the trust account of Debra’s counsel. Debra’s attorney
filed a declaration indicating that she provided notice of the ex parte hearing to John by
telephone and e-mail. The court granted the request for temporary emergency order that
day and set a further hearing for January 28, 2019 when the temporary order would
expire. The court also ordered service on John on or before January 18, 2019 with a
responsive declaration to be filed by John by January 24, 2019. On December 30, 2018,
Debra served a copy of the request for emergency order on John, and John filed an
opposition on January 24, 2019. On the date of the hearing, the court continued the
matter to February 28, 2019.

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 On January 30, 2019, Debra filed a request to enter default against John
along with declarations identifying her separate property and their community property.
The clerk of the court entered John’s default on the same day and served the documents
on John on January 31, 2019.
On February 6, 2019, Fuller filed an ex parte request for order to permit
him to join the dissolution proceedings and to interplead the disputed settlement funds
from the FairWage matter. According to the request, the parties in the FairWage matter
had reached a settlement agreement whereby John would receive $178,870 in two
installments of $89,435 each. In August 2018, John had received the first of the two
installment payments. As required by the court’s December 20, 2018 order granting
Debra’s request for temporary emergency order, Fuller’s counsel transmitted the second
settlement installment payment of $89,435 to Debra’s counsel. Given the parties’ dispute
over the second installment payment of $89,435, Fuller sought to interplead the funds.
The court granted Fuller’s request on the same day, February 6, 2019.
At the continued hearing on Debra’s request for emergency order to freeze
the settlement funds from the FairWage matter, the court issued a minute order stating,
“Court takes this matter off calendar, as the matter is moot.” In March 2019, the court
held a hearing on John’s motion to quash the deposition subpoena. According to the
minute order, the court “order[ed] th[e] matter off calendar” because John did not appear.
The court also continued the default prove-up hearing on the dissolution petition to April
24, 2019.
In support of the default prove-up, Debra filed a declaration for a default
judgment of dissolution along with a property declaration proposing the assets and debts
to be distributed to each party. The court accordingly entered a default judgment of
dissolution. Among other things, the court divided the marital property, awarded certain
community property to Debra and John, and confirmed the separate property belonging to
each of them. In awarding community property to Debra, the court ordered half of the

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settlement proceeds from the FairWage matter to be made payable to Debra’s counsel in
the amount of $89,435.

DISCUSSION

John contends the default judgment is void under Code of Civil Procedure
section 580 because Debra’s petition for dissolution did not specify any separate or
2
community property subject to division by the court. He likewise argues the court did
not have subject matter jurisdiction under Family Code section 2010 to determine
property rights that were not set forth in the petition. He also claims the court erred by
granting Debra’s request for temporary emergency order and Fuller’s request for order on
an ex parte basis because they failed to comply with the procedural requirements for ex
parte applications. Finally, he argues Fuller’s ex parte request for order was improper
because it violated joinder and interpleader rules. John’s latter two contentions have no
merit. With respect to his first contention, we vacate the default judgment in part as to
the property division and remand for the court to decide whether its judgment covers
property listed in Debra’s December 2018 preliminary declaration served prior to entry of
default.

The default judgment is vacated with further instructions to the court.
Section 580, subdivision (a) provides: “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.”’” (In re Marriage of Eustice
(2015) 242 Cal.App.4th 1291, 1302 (Eustice).) “The limitation on default judgments
2
All further statutory references are to the Code of Civil Procedure unless
otherwise stated.

5
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 considered void as beyond the court’s jurisdiction . . . .’”
(Id. at p. 1303; see Burtnett v. King (1949) 33 Cal.2d 805 [court erred by awarding
community property in a default judgment where the pleadings did not ask the court to
determine ownership of the property]; Biscaro v. Stern (2010) 181 Cal.App.4th 702
[court erred by awarding condominium to the wife in a default judgment because the
property was not identified in the petition for dissolution].)
But “[t]he complaint or petition is not necessarily the sole statement of
relief that forms the boundaries of relief granted in a default judgment . . . . A
petitioner’s list of assets and debts in a property declaration, preliminary declaration, and
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.” (Eustice, 242 Cal.App.4th at p. 1304.)
In Eustice, the court found a default judgment did not exceed the scope of a
petition for dissolution of marriage even though the petition did not identify any specific
property. (Eustice, 242 Cal.App.4th at pp. 1303-1308.) In the petition, the wife checked
the boxes for the division of community property and determination of property rights.
(Id. at p. 1296.) She stated she was unaware of all the assets and debts but would file a
stipulation for judgment or amend the petition. (Ibid.) After filing the petition, the wife
filed two preliminary declarations listing all known assets and debts subject to
disposition. (Id. at pp. 1298-1299.) The court found these preliminary declarations
satisfied the requirements of section 580. (Id. at p. 1304.) “Although [the wife] should
have listed in her Petition the property subject to disposition,” the court held the husband
was “on notice of the type of relief requested and [was] further notified [by the]
preliminary declarations and disclosure declarations of the property subject to
disposition.” (Id. at p. 1307.)

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 Here, as in Eustice, Debra checked the appropriate boxes on the petition for
dissolution and requested the court determine the parties’ property rights. The nature and
type of relief requested accordingly is clear from the pleading. Debra also served a
preliminary declaration of disclosure in December 2018 and declarations identifying
separate and community property in connection with her request to enter default. With
respect to the latter, the property identified in those declarations is consistent with the
property disposed of in the judgment. But the court clerk served these declarations after
default was entered. Debra filed the request for entry of default and supporting
declarations on January 30, 2019. The clerk of the court entered default on the same day
and served the documents on John on January 31, 2019. The declarations accordingly
could not alleviate any notice concerns under section 580. (Eustice, 242 Cal.App.4th at
p. 1304 [“A petitioner’s list of assets and debts in a property declaration, preliminary
declaration, and disclosure declaration fulfill the . . . notice function in a marital
dissolution . . . provided the declarations are served on the respondent before entry of
default”].) With respect to Debra’s December 2018 preliminary declaration, we cannot
determine if it satisfies the requirements of section 580 because the declaration is not part
of the record on appeal.
We accordingly vacate the default judgment as to the property division and
remand for the court to decide whether its judgment covers property listed in Debra’s
December 2018 preliminary declaration served prior to entry of default that may not be
included in our record on appeal. If the declaration lists any of the property disposed of
in the default judgment, the entry of default is valid as to that property. The court also
should proceed with a prove-up hearing where Debra can introduce evidence bearing on
the division of any property specified in her preliminary declaration served prior to entry
of default. For property not listed in the declaration, the entry of default is void and
Debra must file an amended petition listing the additional property to be adjudicated.

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The court did not abuse its discretion by granting the ex parte applications.
John contends the court erred by granting Debra’s request for temporary
emergency order to freeze the settlement funds from the FairWage matter and Fuller’s
request for order to join the case and interplead the settlement funds. He claims he did
not receive appropriate notice of these ex parte requests and they were not supported by
declarations establishing irreparable harm. He also argues Debra and Fuller did not serve
their ex parte papers at the first reasonable opportunity. “We review a trial court’s ruling
on an ex parte application for abuse of discretion.” (People ex rel. Allstate Ins. Co. v. Suh
(2019) 37 Cal.App.5th 253, 257.) For the reasons below, the court did not abuse its
discretion.

A. Applicable Law
California Rules of Court, rule 5.151(b)(2) specifies a request for
emergency order (also known as an ex parte application) in a family law case is used to,
inter alia, request the court “[m]ake orders to help prevent immediate loss or damage to
property subject to disposition in the case.” (Ibid.) “An applicant must make an
affirmative factual showing of irreparable harm, immediate danger, or any other statutory
basis for granting relief without notice or with shortened notice to the other party.” (Cal.
Rules of Court, rule 5.151(d)(2).) The applicant also “must give notice to all parties or
their attorneys so that it is received no later than 10:00 a.m. on the court day before the
matter is to be considered by the court.” (Cal. Rules of Court, rule 5.165(b).) The
application “must be accompanied by a completed declaration regarding notice” with one
of the following statements: (1) “The notice given, including the date, time, manner, and
name of the party informed, the relief sought, any response, and whether opposition is
expected and that, within the applicable time under rule 5.165, the applicant informed the
opposing party where and when the application would be made;” (2) “That the applicant
in good faith attempted to inform the opposing party but was unable to do so, specifying

8
the efforts made to inform the opposing party;” or (3) “That, for reasons specified, the
applicant should not be required to inform the opposing party.” (Cal. Rules of Court, rule
5.151(e)(2).) Finally, the applicant “must serve the papers on the other party or on the
other party’s attorney at the first reasonable opportunity before the hearing.” (Cal. Rules
of Court, rule 5.167(a).) “The court may waive this requirement in extraordinary
circumstances if good cause is shown that imminent harm is likely if documents are
provided to the other party before the hearing.” (Ibid.)

B. Debra’s Request for Temporary Emergency Order
In support of her ex parte request, Debra submitted a declaration supporting
the existence of immediate danger in the absence of relief. She explained John already
had received half of the settlement funds from the FairWage matter and that payment of
the remaining half was imminent. Although she tried to obtain documents related to
those funds through various discovery requests and sent a meet-and-confer letter to John
asserting “the community’s interest in the settlement award,” John never responded.
Debra then served a deposition subpoena seeking relevant documents from the FairWage
matter, which John opposed with a motion to quash arguing the documents were not
relevant to the dissolution proceeding. Given John’s silence on the matter, the
imminence of the remaining settlement payment to him, and lacking “assets in the marital
estate to offset against the community’s interest in said settlement funds in the event the
remaining proceeds [were] released” to John, Debra’s declaration provided a factual basis
for the risk of immediate loss and why relief was needed immediately.
Debra’s attorney also submitted a declaration satisfying the notice
requirements of California Rules of Court, rules 5.151(e)(2) and 5.165(b). The
declaration states the attorney informed John of the ex parte hearing via telephone and e-
mail on the day before the hearing. The attorney also submitted a copy of her e-mail to
John. John does not complain about the substance of the e-mail and instead argues the e-

9
mail was sent a few minutes late at 10:13 a.m. Regardless of when the e-mail was sent,
the declaration establishes the attorney attempted to provide notice via telephone at 9:54
a.m.
While John further contends Debra did not serve the ex parte papers “at the
first reasonable opportunity” (Cal. Rules of Court, rule 5.167(a)), “[t]he ‘first reasonable
opportunity’ contemplated . . . often means serving opposing counsel at the ex parte
hearing itself.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The
Rutter Group 2020) ¶ 9:370.2.) “Formal service . . . rarely will be possible because ex
parte matters typically are heard on as little as 24-hour notice . . . .” (Ibid.) Because John
did not appear at the ex parte hearing, Debra was not able to serve the papers at that time.
But the court ordered her to serve the papers by January 18, 2019, and she complied with
that order and served a copy of the papers on December 30, 2018.
Finally, John claims the court could not grant Debra’s ex parte request
because the petition for dissolution did not identify the settlement funds. But Debra filed
the ex parte request after her preliminary declaration. As explained ante, “[a] petitioner’s
list of assets and debts in a property declaration, preliminary declaration, and 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.” (Eustice, 242 Cal.App.4th at p. 1304.) Further, it is
clear John was on notice that Debra was claiming a community property interest in the
settlement funds. She had served a subpoena seeking documents regarding any
settlement agreements involving John or payments made to him in the FairWage matter,
and John filed a motion to quash the subpoena. He also had received a letter from
Debra’s counsel claiming a community property interest in the settlement funds. John’s
ostrich-like approach to his dissolution is regrettable, having no apparent purpose but to
delay the proceeding and to increase its cost to Debra.

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 For the above reasons, the court did not abuse its discretion by granting
Debra’s request for temporary emergency order. We also note John has not established
any prejudice from the court’s ruling. Although the court granted the initial request for
temporary emergency order, the court ultimately took the continued hearing off calendar
and found the “matter [was] moot” presumably because the court already had required
the funds to be turned over to the trust account of Debra’s counsel. Even more
fundamentally, if John received adequate notice that the second installment of the
settlement funds were subject to disposition in the dissolution proceeding, he voluntarily
chose not to contest the funds by allowing his default to be taken, essentially conceding
the issue. If he did not receive adequate notice by the preliminary declaration or
otherwise, he will have an opportunity to contest the issue by responding to Debra’s
amended petition.

C. Fuller’s Request for Order
John raises the same arguments with respect to Fuller’s ex parte request for
order. He claims it was unsupported by a declaration establishing irreparable harm or
proper notice. He also contends he was never served with the moving papers. Finally, he
argues the court “lacked the jurisdiction to consider the ex parte application after John[’s]
default.”
None of John’s contentions have merit because John was no longer an
active party in the litigation after the clerk of the court entered default on January 30,
2019. Default was entered before Fuller filed his request for order in February 2019.
John accordingly was not entitled to notice of any further court hearings. (§ 1010
[“No . . . notice or paper, other than amendments to the pleadings, or an amended
pleading, need be served upon any party whose default has been duly entered or who has
not appeared in the action or proceeding”].) As an often cited treatise explains, “[o]nce a
default is entered, defendant is no longer an active party in the litigation and is not

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entitled to notice of court hearings or proceedings.” (Weil & Brown, Cal. Practice Guide:
Civil Procedure Before Trial (The Rutter Group 2020) ¶ 5:71.1.) “Entry of defendant’s
default instantaneously cuts off its right to appear in the action. The defendant is ‘out of
court.’ It has no right to participate in the proceedings until either (a) its default is set
aside (in which event, it may respond to the complaint), or (b) a default judgment is
entered (in which event, it may appeal).” (Id., ¶ 5:6.) The court accordingly did not err
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by granting Fuller’s request for order. And, as noted above, John either had notice that
the settlement funds were subject to the court’s disposition, or, if not, he will have an
opportunity to contest the disposition. He has not been prejudiced.

Even if Fuller’s ex parte request for order did not comply with joinder and interpleader
rules, John has not established any resulting prejudice.
John also contends Fuller’s ex parte request for order was improper because
Fuller was not properly joined as a party pursuant to the joinder procedures under
California Rules of Court, rule 5.24. He likewise claims Fuller should have filed an
action for interpleader under section 386. But even assuming the ex parte request for
order was procedurally defective, John has not established any prejudice arising from the
court’s order granting the ex parte request.
California Rules of Court, rule 5.24(e)(2) provides, “The court may order
that a person be joined as a party to the proceeding if the court finds that it would be
appropriate to determine the particular issue in the proceeding and that the person to be
joined as a party is either indispensable for the court to make an order about that issue or
is necessary to the enforcement of any judgment rendered on that issue.” A third party
“served with an order temporarily restraining the use of property that is in his or her

3
While Debra did not file a request for entry of default within 10 days after
the time for service of a responsive pleading was due as required by California Rules of
Court, rule 3.110(g), John does not challenge the judgment on these grounds. We
accordingly do not address the issue.

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possession or control or that he or she claims to own . . . may apply to the court for an
order joining himself or herself as a party to the proceeding.” (Cal. Rules of Court, rule
5.24(c)(3).) All applications for joinder must be made by serving and filing Judicial
Counsel Form FL-371, which must be “accompanied by an appropriate pleading setting
forth the claim as if it were asserted in a separate action or proceeding.” (Id., rule
5.24(d)(1).) The hearing also must be noticed for a date less than 30 days from the date
of filing the notice (id., rule 5.24(d)(1)), and “[a] blank copy of . . . [Judicial Counsel
Form FL-373] must be served” with the notice of motion and pleading. (Id., rule
5.24(d)(2).)
Pursuant to section 386, “[a]ny person . . . against whom double or multiple
claims are made, or may be made, by two or more persons which are such that they may
give rise to double or multiple liability, may bring an action against the claimants to
compel them to interplead and litigate their several claims.” (§ 386, subd. (b).) The
statute then details the procedure for filing a complaint or cross-complaint in interpleader.
(Ibid.)
Even if Fuller did not comply with all of the above procedural
requirements, the settlement funds from the FairWage matter already were subject to the
court’s December 20, 2018 order granting Debra’s request for temporary emergency
order. That order required “all settlement funds [to] be turned over to” the trust account
of Debra’s counsel within 48 hours of the court’s order. The order further required
“[a]ny remaining proceeds not yet paid out [to] be turned over . . . at time of settlement
payment.” The order continued to be in effect until the February 28, 2019 hearing. Thus,
even if Fuller failed to comply with the necessary procedural requirements to join the
proceedings on February 6, 2019, and we reversed on those grounds, the settlement funds
from the FairWage matter were still subject to the court’s December 20, 2018 order. We
accordingly need not decide whether the court erred by granting Fuller’s request for order
on procedural grounds because John cannot establish any resulting prejudice.

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 DISPOSITION

The default judgment is vacated as to the property division and remanded
for the court to determine whether the judgment covers property listed in Debra’s
preliminary declaration served prior to entry of default. The entry of default remains
intact for any property listed in that relevant declaration, and the court should conduct a
prove-up hearing regarding division of that property. Otherwise, the entry of default is
void for any property that is not listed in the declaration, and Debra must be allowed to
file and serve an amended petition as to that property. Each party shall bear their own
costs incurred on appeal.

IKOLA, J.

WE CONCUR:

MOORE, ACTING P. J.

ARONSON, J.

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