Filed 9/7/21 Tieu v. Tieu 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
NHU TIEU,
Plaintiff and Respondent, G060205
v. (Super. Ct. No. 114CV266238)
NGHIA TIEU, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Santa Clara
County, Mark H. Pierce, Judge. Reversed and remanded with instructions.
Roberts Elliot and James Roberts for Appellant.
Wade Law Group and Amiel L. Wade for Respondent.
Nghia Tieu (Ex-Husband) brought a motion to vacate a default judgment
entered against him in favor of Nhu Tieu (Ex-Wife), which the trial court denied. On
appeal, Ex-Husband asserts the court erred because the judgment exceeded the amount
sought by the complaint, the complaint did not state a claim, and the court lacked subject
matter jurisdiction due to a pending family law case. Because the complaint did not state
any dollar amount of damages, we agree the judgment was void. Accordingly, we
reverse the postjudgment order denying the motion to vacate the default judgment and
remand the matter for further proceedings consistent with this opinion.
FACTS
Ex-Husband and Ex-Wife were married in July 1988. In 1997, they
invested in a restaurant, owning 40 percent of the business, along with Ex-Wife’s sister,
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Linh Phuong Mai (Sister). While Sister initially had a 40 percent ownership in the
restaurant, in 2003, she was given an additional 11 percent. In 2013, the couple began
divorce proceedings in a separate family law proceeding.
In June 2014, Ex-Wife sued Ex-Husband and Sister (collectively referred to
as Defendants). Ex-Wife alleged Ex-Husband and Sister committed fraud by secretly
withholding restaurant profits from her for over 20 years. Specifically, Ex-Wife alleged
causes of action for breach of fiduciary duty, accounting, request for injunctive relief,
conversion, involuntary dissolution of a corporation, various violations of the
Corporations Code, removal of directors for fraudulent/dishonest acts, unjust enrichment,
fraud, constructive fraud, reimbursement and indemnity, negligence, declaratory relief,
and negligence per se. Subsumed within her fraud claim was a claim for “extreme mental
anguish and emotional and physical distress, shame, mortification, and hurt feelings.”
The complaint did not list dollar amounts of damages linked to the causes of action.
Instead, each cause of action alleged by Ex-Wife lacked any dollar amounts but instead
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Sister is not a party to this appeal.
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stated she suffered general and special damages according to proof and sought “punitive
damages in an amount appropriate to punish Defendants and deter others from engaging
in similar misconduct.” The complaint also stated “[D]efendants have
converted/embezzled the sum of approximately $1,500,000 from the Plaintiff and
Company, depriving Plaintiff of substantial profits.”
The proof of service of summons of the complaint indicated a certified
process server served Defendants with a statement of damages. The copy of the
statement of damages in our record on appeal, however, was not file stamped or on a
Judicial Council form. It showed Ex-Wife sought damages against Defendants jointly
and severally in the amount of $300,000 in general damages, $150,000 in special
damages, and $300,000 in punitive damages.
Defendants answered the complaint and participated in the action for
approximately 11 months. Ex-Wife requested terminating sanctions due to Defendants’
failure to answer discovery requests and comply with court orders. Before terminating
sanctions were entered, the court granted issue and evidence sanctions against Defendants
due to their discovery abuse. The sanction provided for purposes of trial, Ex-Husband
would be considered to have concealed at least $800,000 from Ex-Wife and would not be
entitled to rebut that evidence. Thereafter, the court granted Ex-Wife’s request for
terminating sanctions against both Ex-Husband and Sister, striking their answers to the
complaint and allowing Ex-Wife to seek entry of default. Defendants did not appear at
the default prove-up hearing.
In March 2017, the trial court entered an amended default judgment
(judgment) against Ex-Husband in the amount of $415,635 in favor of Ex-Wife.
Specifically, the trial court explained the judgment breakdown as follows: $45,000
representing Ex-Wife’s 20 percent share of the $225,000 purchase price of the restaurant,
$320,000 representing the former couple’s 40 percent share of the $800,000 that was
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concealed by Ex-Husband, $50,000 representing punitive damages, and costs in the sum
of $635.
In July 2019, Ex-Husband moved to set aside the judgment as void. The
trial court denied the postjudgment motion to set aside the judgment, stating, “[t]his is a
motion to set aside a void judgment which was entered on March 15, 2017 as a result of a
default entered on October 28, 2015. The default was entered as a discovery sanction in a
case that had been litigated for a time by the moving party [Ex-Husband] prior to the
discovery sanction. [¶] Defendant now seeks to set aside the judgment some [three and
one-half] years later as void. Defendant . . . failed to establish that the judgment is void
on its face. The motion is therefore DENIED.” Ex-Husband appealed from the court’s
order denying his postjudgment motion.
DISCUSSION
Ex-Husband challenges the order denying his motion to set aside the
judgment. He argues the court erred by concluding the judgment was not void because it
exceeded the amount sought by the complaint, the complaint failed to state a claim, and
the trial court lacked jurisdiction due to a pending family law case. We agree with
Ex-Husband the judgment was void because it exceeded the amount sought by the
complaint. We therefore reverse and remand the matter for further proceedings.
“‘We review de novo the trial court’s determination that a default judgment
is or is not void.’ [Citation.] [¶] ‘The relief granted to the plaintiff, if there is no answer,
cannot exceed that demanded in the complaint . . . .’ [¶] . . . [¶] [Code of Civil
Procedure] [s]ection 580 requires formal notice of damages sought through the complaint
and does not consider whether a defendant had actual or constructive notice.
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[Citations.]” (Airs Aromatics, LLC v. CBL Data Recovery Technologies, Inc. (2018)
23 Cal.App.5th 1013, 1018-1019.) Similarly, when a judge strikes a defendant’s answer
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All further statutory citations are to the Code of Civil Procedure.
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and enters a default judgment as a discovery sanction, the relief may not exceed the relief
demanded in the complaint or statement of damages. (Greenup v. Rodman (1986)
42 Cal.3d 822, 826.) “‘The court cannot allow a plaintiff to prove different claims or
different damages at a default hearing than those pled in the complaint.’ [Citation.]”
(Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1182.)
A statement of damages is ineffective to save a default judgment on a
complaint seeking general and special damages “according to proof,” not based upon
personal injury or wrongful death, even though plaintiff also pleaded an associated
emotional distress claim. (See Dhawan v. Biring (2015) 241 Cal.App.4th 963, 970-971
(Dhawan).) A default judgment awarding damages in excess of the demand is void, and
as such, may be challenged at any time. (Id. at p. 973.)
Ex-Wife does not allege dollar amounts related to causes of action
anywhere in the complaint. The prayer does not list a monetary amount but merely
references damages “according to proof.” Similarly, the individual causes of action do
not include any figures. The facts section of the complaint does refer to the restaurant
having failed to report taxes of approximately $200,000 from 2010-2012, $1,250,000
“during the preceding fifteen years,” and owing approximately $91,000 in back taxes to
the Internal Revenue Service from 2010-2012. In sum, it alleges Defendants converted
or embezzled approximately $1,500,000 from Ex-Wife and the restaurant. However, no
claims are directly linked to those figures for the purpose of calculating damages.
Apparently recognizing her defective pleading, Ex-Wife contends she
served a statement of damages on Ex-Husband, which remedies any omissions in the
complaint. The statement of damages contained in our record, however, had no case
number and was not file stamped. It also was not on a Judicial Council form and asserts
joint and several liability against Defendants in the amounts of $300,000 for general
damages, $150,000 for special damages, and $300,000 in punitive damages. It does not
identify what portions of the claimed damages were attributed to each individual
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defendant. Ex-Wife concedes, “The judgment roll does not include the statement of
damages. Most likely the result of the statement of damages being lost.” She further
argues, without citation to the record or law, “The court can take judicial notice that
Plaintiff [sic] request for entry of default would never have been entered if it had not been
filed with the Court. It is standard operating procedure that when a request for entry of
default is requested, based on the alleged service of a statement of damages, the Court
will not enter the default without viewing the statement of damages. Therefore, the
statement of damages must have been filed with (and approved by), the Court.”
A party challenging a judgment has the burden on appeal to provide an
adequate record to assess error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.)
Ex-Wife failed to carry this burden because she did not provide a statement of damages
that indicated the trial court entered it into evidence as part of the default prove-up.
However, even if we assume the statement of damages was properly before the court, the
judgment remains void.
“[C]ase law favors a strict interpretation of section 580’s requirement that a
defendant be given formal notice—in the form of an amended complaint—of the extent
of liability stemming from a decision to not appear in response to a complaint [or due to
terminating sanctions.]” (Dhawan, supra, 241 Cal.App.4th at p. 970.) “The ‘strict
construction’ of section 580 as articulated by the Supreme Court has led the Courts of
Appeal to consistently reject the argument that a statement of damages can satisfy the
section’s notice requirements in cases that do not involve personal injury or wrongful
death.” (Ibid.) Indeed, a statement of damages is not required where an emotional
distress claim is merely “‘incidental’” to the cause of action. (Schwab v. Rondel Homes,
Inc. (1991) 53 Cal.3d 428, 432.)
The claims asserted in this action did not include those for wrongful death
or personal injury. The fact that Ex-Wife also arguably alleged an emotional distress
claim (although it was not separately stated and was simply listed under her fraud claim),
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does not convert the underlying nature of the action. Similarly, the mere fact that Ex-
Wife sought punitive damages does not relieve her from the requirement to list damages
in her complaint. In any event, because we must vacate the compensatory damage award
due to lack of formal notice, we must also vacate the award of punitive damages.
(Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1178.)
“We must reverse the order denying the motion to set aside the judgment,
but this does not necessarily require reversal of the default. ‘Vacating the default
judgment has no necessary effect on the underlying default and simply returns the
defendant to the default status quo ante.’ [Citation.] When we reverse a judgment on the
ground that the damages awarded exceeded those pled, the court may modify the
judgment by reducing it to the amount specified in the complaint, or the plaintiff may
choose to amend the complaint to state the full amount of damages he or she seeks. But
if the plaintiff chooses the latter, the court should vacate the default, “‘entitling
defendants to either attack the pleadings, or answer the amended complaint.’”
[Citations.]” (Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 755.) Here, the complaint
did not state a discernable dollar amount of damages. In order for Ex-Wife to seek any
amount of damages, she must amend her complaint.
As a final matter, Ex-Husband asserts this case, filed in the general civil
division of the trial court, should have instead been consolidated into the former couple’s
family law proceeding. Our record is insufficient to determine whether the family law
case was related to this one or if it remains pending. On remand, the parties may raise
this jurisdictional issue before the trial court. Because we reverse the matter on the
ground that the damages awarded exceeded those pled, we need not address
Ex-Husband’s assertions the damage claims were not based upon a valid cause of action
or the evidence offered in support of the original default prove-up was insufficient.
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DISPOSITION
The postjudgment order denying Ex-Husband’s motion to set aside the
judgment is reversed. On remand, the trial court should allow Ex-Wife to amend the
complaint to state the full amount of damages she seeks, at which point the default will
be vacated. In the interest of justice, each party shall bear their own costs on appeal.
O’LEARY, P. J.
WE CONCUR:
FYBEL, J.
MARKS, J.*
*Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
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