Chichyan v. Roger CA2/7

Filed 4/19/22 Chichyan v. Roger CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

HAIKUHE CHICHYAN, B311958

Plaintiff and Respondent, (Los Angeles County
Super. Ct.
v. No. 19STCV01244)

DIMITRI ROGER,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, David Sotelo, Judge. Reversed with
directions.
Revolve Law Group and Kimberly A. Wright for Defendant
and Appellant.
Law Offices of Robert E. Weiss and Cris A. Klingerman for
Plaintiff and Respondent.

_________________________
 Dimitri Roger appeals from an order denying his motion to
set aside the default judgment entered in favor of Haikuhe
Chichyan. Chichyan sued Roger for breach of contract and
related claims arising from Roger’s lease of real property in
Los Angeles (the property). After Roger failed to file an answer,
the clerk entered a default, and the trial court entered a default
judgment. Roger moved to set aside the default judgment under
the court’s equitable powers, asserting he was not personally
served and did not learn of Chichyan’s lawsuit until about four
months after entry of the default judgment, after which he acted
expeditiously to set it aside. The trial court rejected Roger’s
argument he was not on notice of the lawsuit, and it denied
Roger’s motion for relief from the default judgment, finding based
on the process server’s declaration and video evidence that Roger
deliberately avoided service of the summons and complaint.
On appeal, Roger contends the trial court abused its
discretion in denying his motion for equitable relief. Roger also
argues for the first time on appeal the default judgment against
him is void because the damages award exceeds the prayer in the
first amended complaint. We agree as to the latter contention.
We reverse and remand for the trial court to vacate the default
judgment and modify it to award damages no greater than the
amount demanded by Chichyan in the first amended complaint.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Complaint and Entry of the Default and Default
Judgment
On January 15, 2019 Chichyan, as trustee for the Arman
Yurdumyan Trust (the Trust), filed a complaint against Roger

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alleging a cause of action for breach of contract. Chichyan
requested $32,376 in damages. On January 30 Chichyan filed a
first amended complaint, alleging causes of action for breach of
contract, damage to real property, and damage to personal
property. The first amended complaint alleged Roger and the
Trust entered into a written agreement on July 11, 2018, under
which the Trust leased the property to Roger for six months at a
rate of $22,500 per month. The agreement required Roger to pay
a 10 percent late fee if his rent payment was made more than
three days after the 18th of the month. The agreement further
required Roger to pay for the water, power, gas, cable television,
internet, phone, and waste disposal utilities for the property.
The agreement obligated Roger at the end of the lease to clean
the property and to deliver it to the Trust in the same condition
as when Roger first leased it.
The first amended complaint alleged Roger vacated the
property on January 17, 2019 but failed to make his final rent
payment that was due on December 17, 2018. Further, Roger
failed to pay multiple utility bills. Roger returned the property to
the Trust with extensive damage to the premises, furnishings,
and fixtures. Chichyan alleged, “The full assessment of the total
repair and replacement costs required in order to return the
premises to the same condition in which [Roger] . . . received the
premises upon the commencement [of] the lease is ongoing and is
subject to proof.”
The first amended complaint sought $22,500 in unpaid
rent; $2,250 for an unpaid late fee; $7,376.29 in unpaid utilities;
and $2,500 in liquidated damages for breach of a non-smoking
provision, for a total of $34,626.29, plus further economic
damages “subject to proof.”

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 On March 27, 2019 Chichyan filed a proof of service of
summons, signed by registered California process server Brian
Weller, who attested he personally served Roger with the
summons, complaint, and amended complaint at 3:30 p.m. on
March 20, 2019 at a specified address in Calabasas.
On May 29, 2019 Chichyan filed a request for entry of
default and clerk’s judgment. The clerk entered the default the
same day. On January 21, 2020 Chichyan filed a request for
entry of default judgment seeking $304,309.84 in damages plus
interest and costs. In support of his request, Chichyan submitted
a declaration by attorney Maro Burunsuzyan asserting Roger
caused extensive damage to the property (“‘trash[ing]’” the
property), requiring $304,309.84 in repairs and replacement
costs. On June 5, 2020 the trial court entered a default judgment
against Roger in the amount of $346,698.45, comprised of
$304,309.84 in damages plus prejudgment interest and costs.

B. Roger’s Motion To Set Aside the Default Judgment
On December 1, 2020 Roger filed a motion to set aside the
default judgment pursuant to the court’s inherent equitable
powers for lack of actual notice.1 Roger requested leave to file an
answer to the first amended complaint and “to defend the
action.”2 Roger asserted he was in New York on March 20, 2019

1 Roger also sought relief under Code of Civil Procedure
sections 473.5 and 473, subdivision (b), but he has abandoned
these bases for relief on appeal. Further undesignated statutory
references are to the Code of Civil Procedure.
2 Although Roger’s motion did not expressly seek to set aside
the default, we treat Roger’s request for leave to defend the
action as a request for relief from the default.

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when he was purportedly served in Calabasas according to the
proof of service of the summons and complaint. In his declaration
filed in support of the motion, Jean Roger, Roger’s father, averred
he lived with Roger at the Calabasas address in March 2019. At
3:30 p.m. on March 20 Jean was home, but Roger had traveled to
New York. Jean averred the process server left “various
documents relating to this case” with Jean without explaining
their legal significance. Jean did not understand what the
documents were and discarded them, believing them to be “‘junk’”
mail sent to Roger, who is an artist in the music industry.
Roger stated in his declaration in support of the motion
that he was not personally served with the summons or
complaint. Rather, he was in New York from March 20 through
27, 2019 to shoot a music video for one of his songs. Roger
believed his father was served with the documents but never
gave them to Roger. Roger “discovered the default judgment in
approximately October 2020, after [his] attorney did a docket
search for another matter.” He then “acted immediately and
retained counsel the same day to move to set aside the default
judgment.” Roger attached to his declaration a copy of an invoice
for a New York hotel showing a reservation in Roger’s name from
March 20 through 27, 2019, and copies of images that Roger
averred had been taken of him and posted online to his social
media account while he was in New York during this period.
Chichyan opposed Roger’s motion, arguing Roger had been
personally served, and to the extent Roger lacked actual notice of
the lawsuit, it was due to his avoidance of service and
inexcusable neglect. Chichyan asserted Roger’s hotel invoice only
showed that Roger had booked a room in New York, not that he
was there on March 20, 2019, and Chichyan pointed to the

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absence of evidence of an airline itinerary, business records, or
ground transportation relating to Roger’s claimed trip to New
York.
In his declaration, Weller described his efforts to serve
Roger. Weller was aware of Roger’s physical appearance from
Roger’s “strong online presence, with many pictures and videos
existing on social media and other websites.” After determining
Roger resided at an address in Calabasas, Weller made several
attempts at service. On February 21, 2019 an older man
answered the door and nervously told Weller that Roger did not
live there. However, Weller saw several luxury vehicles parked
outside the residence, which Weller recognized from Roger’s
social media posts. On March 3, 2019 a young woman at the
Calabasas residence told Weller that Roger would be gone for
three weeks.
At 3:00 p.m. on March 20, 2019 Weller returned to the
Calabasas residence. He again saw luxury vehicles he believed to
be Roger’s parked outside. The woman who answered the front
door told Weller that Roger was not there, but through the door
Weller noticed several people inside, one of whom he believed was
Roger. Weller told the woman he was a process server with court
documents for Roger. Weller returned to his car to wait before
making a further attempt.
A half hour later, as Weller again approached the
residence, Roger exited from the front door. Weller announced he
was a process server with court documents for Roger, and “[a]t
that point [Weller] then turned on [his] cell phone video
record[er].” Roger did not stop to allow Weller to hand him the
envelopes containing the documents and instead “continued to
walk down the driveway towards his vehicle in an apparent

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attempt to avoid service.” Weller stated, “‘Here you go Dimitri.
Thank you.’” Then Weller dropped the two service envelopes (one
for this case and another for a related case against Roger) at
Roger’s feet. Roger continued to walk away. Weller returned to
his car. As he drove away from the property, he heard Roger say,
“‘If I ever see you around here again, I’m gonna whoop your ass.’”
Weller hurried away. Weller attached to his declaration still
images from the video he recorded, which show a manila envelope
and a young Black man walking to the street.
After a hearing on February 3, 2021, the trial court issued
a minute order describing the motion and parties’ evidence and
stating its tentative ruling to grant the motion. However, the
court continued the hearing to February 17 and requested
Chichyan provide a copy of the cell phone video described in
Weller’s declaration to opposing counsel and the court. The court
explained in its minute order, “The photos provided by Weller are
of low quality making them somewhat challenging to see.
Although not definitive, the photographs do appear to show
someone who resembles [Roger]. The Court disagrees with
[Roger]’s argument that even if the recording is accurate, he still
did not have actual notice of the action. If the interaction
described by Weller is accurate, then Defendant did not have
notice because he deliberately avoided the process server giving
him the documents.”
The same day Chichyan lodged a copy of the video to the
court, which he served on Roger’s attorneys by email. In the
video, the man holding the camera phone can be heard off-screen
saying, “Hey Dimitri.” A second man responds, but the answer
cannot be discerned from the recording. The first man then
states, “Here you go, Dimitri,” and a hand can be seen dropping

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two manila envelopes on a paved driveway. The camera pans up
to show a young Black man on foot exiting a driveway toward the
street. The young man appears to see the envelopes being
dropped but continues to walk away. The first man then says,
“Thank you,” and he walks away.
On February 5, 2021 the trial court denied Roger’s motion,
explaining it had “carefully review[ed] the moving papers,
opposition, reply and the video.” The court vacated the continued
hearing.
Roger timely appealed.

DISCUSSION

A. The Trial Court Did Not Abuse Its Discretion in Denying
Roger’s Motion To Set Aside the Default Judgment on
Equitable Grounds
1. Applicable law and standard of review
“[A] trial court may . . . vacate a default on equitable
grounds even if statutory relief is unavailable.” (Rappleyea v.
Campbell (1994) 8 Cal.4th 975, 981, 985 [granting equitable relief
from default judgment due to defendants’ failure to pay full filing
fee for answer because of incorrect information from clerk’s
office]; accord, Luxury Asset Lending, LLC v. Philadelphia
Television Network, Inc. (2020) 56 Cal.App.5th 894, 910 (Luxury
Asset).) “One ground for equitable relief is extrinsic mistake—a
term broadly applied when circumstances extrinsic to the
litigation have unfairly cost a party a hearing on the
merits. [Citations.] ‘Extrinsic mistake is found when [among
other things] . . . a mistake led a court to do what it never
intended . . . .’” (Rappleyea, at p. 981; Mechling v. Asbestos

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Defendants (2018) 29 Cal.App.5th 1241, 1246.) “To qualify for
equitable relief based on extrinsic mistake, the defendant must
demonstrate: (1) ‘a meritorious case’; (2) ‘a satisfactory excuse for
not presenting a defense to the original action’; and (3) ‘diligence
in seeking to set aside the default once the fraud [or mistake] had
been discovered.’” (Mechling, at p. 1246; accord, Rappleyea, at
p. 982.)
“We review a challenge to a trial court’s order denying a
motion to vacate a default on equitable grounds . . . for an abuse
of discretion.” (Rappleyea v. Campbell, supra, 8 Cal.4th at p. 981;
accord, Mechling v. Asbestos Defendants, supra, 29 Cal.App.5th at
p. 1246.) “We defer to the trial court’s determination of
credibility and do not reweigh evidence or reassess the credibility
of witnesses.” (Behm v. Clear View Technologies (2015)
241 Cal.App.4th 1, 15 (Behm); accord, Johnson v. Pratt &
Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622.) “If the
evidence gives rise to reasonable conflicting inferences, one of
which supports the trial court’s determination, we will affirm the
court’s finding on appeal.” (Behm, at p. 15; accord, Johnson, at
p. 623.) “When a default judgment has been obtained, equitable
relief may be given only in exceptional circumstances.”
(Rappleyea, at p. 981; accord, Luxury Asset, supra,
56 Cal.App.5th at p. 910.)

2. Roger failed to present a satisfactory excuse for not
presenting a defense to Chichyan’s action
Roger contends the trial court abused its discretion in
denying his request for equitable relief based on extrinsic
mistake because, as Roger stated in his declaration, he was not
aware of the lawsuit until October 2020. The trial court did not

9
abuse its discretion. In denying Roger’s motion, the court
impliedly found Weller (through his declaration) was credible,
and Roger and his father (through their declarations) were not.
This is clear from the court’s minute order continuing the hearing
on Roger’s motion and requesting Weller’s cell phone video, in
which the court acknowledged the photographs attached to
Weller’s declaration were of “low quality” and “somewhat
challenging to see.” The court explained its need for the video, “If
the interaction described by Weller is accurate, then [Roger] did
not have notice because he deliberately avoided the process
server giving him the documents.” Only after reviewing the video
did the court deny Roger’s motion. It is therefore evident the
trial court found the video to be convincing evidence of Weller’s
version of events. As the reviewing court we do not reweigh the
evidence and must instead defer to the trier of fact’s express or
implied findings where those findings are supported by
substantial evidence. (Behm, supra, 241 Cal.App.4th at p. 15;
Johnson v. Pratt & Whitney Canada, Inc., supra, 28 Cal.App.4th
at p. 622.)
Substantial evidence supports the trial court’s findings.
Roger does not contend he is not the person seen in the video.3
Rather, he notes the video does not depict Weller notifying Roger
he is a process server with court papers, arguing “Roger’s public
figure status, coupled with a stranger approaching with
unidentified papers, may lead Roger to not be fully aware of the
legal importance of the encounter, or that he was being served,

3 The record before the trial court included multiple still
images of Roger, which Roger submitted in support of his motion
to set aside the default judgment to show he was in New York at
the time Weller claimed to have served Roger.

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providing a satisfactory excuse for his failure to respond.”
Roger’s contention is disingenuous because he initially averred in
his declaration he could not have been personally served on
March 20, 2019 because he was in New York, but once faced with
a video showing him avoiding service, he changed his story. The
trial court resolved the conflict in the evidence against Roger,
impliedly crediting Weller’s declaration that he announced he
was a process server with court documents for Roger before he
began to record the service with his cell phone camera.
Given the trial court’s finding Roger lacked notice only
because he intentionally avoided service, the court did not abuse
its discretion in denying equitable relief. “[E]xtrinsic fraud and
extrinsic mistake are unavailable when a party’s own negligence
allows the fraud or mistake to occur.” (Kramer v. Traditional
Escrow, Inc. (2020) 56 Cal.App.5th 13, 29, 31 [reversing grant of
motion to set aside default judgment where “any lack of actual
notice was due to [defendants’] own negligence” in failing to
apprise plaintiff and the court of correct address for service];
accord, In re Marriage of Park (1980) 27 Cal.3d 337, 345 [“a
motion to vacate a judgment should not be granted where it is
shown that the party requesting equitable relief has been guilty
of inexcusable neglect”]; see Cruz v. Fagor America, Inc. (2007)
146 Cal.App.4th 488, 503 [“Relief on the ground of extrinsic fraud
or mistake is not available to a party if that party has been given
notice of an action yet fails to appear, without having been
prevented from participating in the action.”].)
Roger urges us in the alternative to grant equitable relief
from the default judgment on appeal despite the trial court’s
denial of relief, relying on Luxury Asset, supra, 56 Cal.App.5th
894. But Luxury Asset does not stand for the proposition, as

11
argued by Roger, that a reviewing court “may . . . assess witness
credibility and resolve conflicts in evidence.” We cannot.
Contrary to Roger’s contention, the Luxury Asset court reversed
the trial court’s denial of the defendant’s motion for equitable
relief from a default and default judgment on the basis the trial
court had abused its discretion in determining the defendant
failed to show diligence in seeking relief notwithstanding the
undisputed evidence showing diligence. (Id. at pp. 911, 913-914.)
And there was no dispute (in the trial court or on appeal) that the
corporate defendant had presented a satisfactory excuse for not
presenting a defense to the complaint, where the plaintiffs served
a shareholder they knew was not trustworthy on behalf of the
corporate defendant, and the shareholder failed to inform his
fellow shareholders that the company needed to respond. (Id. at
pp. 912-913.) Here, it was the proper role of the trial court to
resolve the conflicting evidence before it.

B. The Default Judgment Is Void on Its Face
1. Roger’s challenge to the default judgment as void may
be raised for the first time on appeal
For the first time on appeal, Roger argues the default
judgment is void on its face because it awards damages in excess
of the damages alleged in the first amended complaint. Chichyan
asserts this court lacks jurisdiction to review the merits of
Roger’s claim because Roger did not appeal the default judgment,
and any challenge to the default judgment is therefore untimely.
Roger has the better argument.
If a court “lack[s] fundamental authority over the subject
matter, question presented, or party, . . . its judgment [is] void.”
(In re Marriage of Goddard (2004) 33 Cal.4th 49, 56; accord,

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Ramos v. Homeward Residential, Inc. (2014) 223 Cal.App.4th
1434, 1442 [default and default judgment void for lack of proper
service on corporate agent]; Carr v. Kamins (2007)
151 Cal.App.4th 929, 933 [default judgment void for ineffective
service by publication]; see § 473, subd. (d) [a trial court “may . . .
set aside any void judgment or order”].)
“[A] default judgment greater than the amount specifically
demanded is void as beyond the court’s jurisdiction.” (Greenup v.
Rodman (1986) 42 Cal.3d 822, 826; accord, Behm, supra,
241 Cal.App.4th at p. 13; see § 580, subd. (a) [“The relief granted
to the plaintiff, if there is no answer, cannot exceed that
demanded in the complaint . . . .”].) “‘[Q]uestions of jurisdiction
are never waived and may be raised for the first time on appeal.’”
(Grados v. Shiau (2021) 63 Cal.App.5th 1042, 1050; accord,
Falahati v. Kondo (2005) 127 Cal.App.4th 823, 830-831 & fn. 18
[trial court erred in denying motion to set aside default judgment
because judgment was void on its face due to lack of allegations of
or prayer for damages against defendant, despite defendant’s
failure in trial court to assert judgment was void].) Further,
“[t]here is no time limit to attack a judgment void on its face.”
(Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th
1009, 1021 [trial court had jurisdiction to consider plaintiff’s
motion to vacate order declaring him a vexatious litigant
although he filed the motion nearly five years after entry of the
order and after plaintiff voluntarily dismissed the action, where
plaintiff argued trial court lacked jurisdiction to enter order and
jurisdictional facts were ascertainable from the record]; accord,
OC Interior Services, LLC v. Nationstar Mortgage, LLC (2017)
7 Cal.App.5th 1318, 1327 [“A judgment that is void on the face of
the record is subject to either direct or collateral attack at any

13
time.”].) Therefore, although Roger failed to argue in his motion
to vacate that the default judgment was void on its face, the
argument is properly before us on appeal from the denial of his
motion to vacate the default judgment.

2. The default judgment is void for awarding monetary
relief in excess of the prayer in the first amended
complaint
A judgment or order “is considered void on its face only
when the invalidity is apparent from an inspection of the
judgment roll or court record without consideration of extrinsic
evidence.” (Pittman v. Beck Park Apartments Ltd., supra,
20 Cal.App.5th at p. 1021; accord, OC Interior Services, LLC,
supra, 7 Cal.App.5th at p. 1328.) Where, as here, “the complaint
is not answered by any defendant,” the judgment roll includes
“the summons, with the affidavit or proof of service; the
complaint; the request for entry of default . . . , and a copy of the
judgment . . . .” (§ 670, subd. (a).)
Inspection of the judgment roll shows the default judgment
is void. Chichyan’s first amended complaint sought economic
damages totaling $34,626.29. The default judgment awarded
Chichyan $304,309.84 in damages, an amount nearly 10 times
that demanded in the first amended complaint. The default
judgment is therefore void to the extent the damages award
exceeds the request in the first amended complaint. We reverse
with directions to the trial court to modify the judgment to reflect
an economic damages award of $34,626.29 plus prejudgment
interest.

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 DISPOSITION

The order denying Roger’s motion to set aside the default
judgment is reversed. On remand, the trial court is directed to
vacate its order denying the motion and to enter a new order
granting Roger’s motion in part. The trial court should modify
the default judgment to reflect an economic damages award of
$34,626.29, plus prejudgment interest. In all other respects, we
affirm. The parties shall bear their own costs on appeal.

FEUER, J.

We concur:

PERLUSS, P. J.

SEGAL, J.

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