Burunsuzyan v. Roger CA2/7

Filed 4/26/22 Burunsuzyan 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

MARO BURUNSUZYAN, B313917

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 19STCV08621)
v.

DIMITRI ROGER,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, David Sotelo, Judge. Affirmed.
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 plaintiff Maro
Burunsuzyan. Burunsuzyan sued Roger for invasion of privacy
by public disclosure of private facts, invasion of privacy by false
light portrayal, intentional infliction of emotional distress, and
negligence, arising from an alleged incident in which Roger
posted Burunsuzyan’s personal cell phone number to Roger’s
social media account with directions for Roger’s followers to call
Roger at that number. Burunsuzyan filed suit after allegedly
receiving over 500 text messages and numerous calls, preventing
her from using her cell phone. After Roger failed to file an
answer, the clerk entered a default, and the trial court entered a
default judgment in favor of Burunsuzyan.
Roger moved to set aside the default judgment under the
court’s equitable powers, arguing he did not receive actual notice
of Burunsuzyan’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 the default judgment against him is void because he was
not personally served with an adequate statement of damages.
Roger also asserts for the first time o fffffffn appeal substantial
evidence does not support the damages awarded because
Burunsuzyan did not declare the statements she made in her

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default prove-up declaration were true under penalty of perjury.
We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Complaint and Entry of the Default and Default
Judgment
On March 13, 2019 Burunsuzyan filed a complaint against
Roger alleging causes of action for invasion of privacy by public
disclosure of private facts, invasion of privacy by false light
portrayal, intentional infliction of emotional distress, and
negligence. The complaint alleged Roger is “an extremely
popular musician and performer” known as “‘Rich The Kid,’” with
several million followers on his social media accounts.
The complaint further alleged Roger and the Arman
Yurdumyan Trust (the Trust) entered into a written agreement
on July 11, 2018, under which the Trust leased to Roger real
property in Los Angeles (the property) for a six-month period.
Burunsuzyan, who is an attorney, acted as a representative of the
Trust with respect to the property. Roger vacated the property
on January 17, 2019, but he failed to pay the final month of rent
and to deliver the property to the Trust in the same condition as
when Roger first leased it. As a result, on January 15, 2019
Haikuhe Chichyan, as trustee for the Trust, filed a complaint
against Roger alleging a cause of action for breach of contract.
On February 14, 2019 Burunsuzyan received a text
message from the real estate broker responsible for marketing
the property. The broker stated Roger wanted to speak with
Burunsuzyan, and the broker requested permission to share
Burunsuzyan’s personal cell phone number with Roger.

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Burunsuzyan agreed. On the same day Roger called
Burunsuzyan on her personal cell phone. Roger asked
Burunsuzyan, “‘You suing me?’” Burunsuzyan began to explain
the bases for Chichyan’s lawsuit against Roger, but Roger hung
up while she was speaking. Later that day Roger sent
Burunsuzyan a text message reading, “‘Hey Gm.’” Burunsuzyan
responded by text message, “‘Hey how would you like to handle
the past due rent and utilities and damage to my house, my
inability to rent because of the repairs that are still getting done
and attorney fees and costs[?]’” Roger responded that he did not
have money to pay. Burunsuzyan wrote, “‘Then we are done
communicating.’” Roger responded, “‘oh really?’”
Later on February 14 Roger posted a message to one of his
social media accounts reading, “‘Valentines calls me,’” followed by
Burunsuzyan’s personal cell phone number. Thereafter,
Burunsuzyan “suddenly began to receive a barrage of telephone
calls and text messages on her personal cell phone, all of which
were callers seeking to speak with ‘Rich The Kid.’” Burunsuzyan
received over 500 text messages that day, and she received so
many calls that she could not use her phone to make personal or
professional calls. Burunsuzyan continued “[f]or a period of time”
to receive calls and text messages, rendering her “wholly unable
to answer a single telephone call on her personal cell phone.” The
incoming calls and text messages interfered with Burunsuzyan’s
ability to conduct business and to maintain contact with clients,
colleagues, friends, and family. Burunsuzyan alleged she
continues to receive calls and text messages directed to Rich The
Kid “at all hours of the day and night on her personal cell phone.”
The complaint prayed for damages “subject to proof.”

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 On the same day Burunsuzyan filed the complaint
(March 13, 2019), she filed a statement of damages stating she
incurred economic damages totaling $100,000 and non-economic
damages totaling $500,000. On March 27 Burunsuzyan filed a
proof of service of summons signed by Brian Weller, a registered
California process server, who attested he personally served
Roger with the summons, complaint, and statement of damages
at 3:30 p.m. on March 20, 2019 at a specified address in
Calabasas.
On May 29, 2019 Burunsuzyan filed a request for entry of
default, which the clerk entered the same day. On January 21,
2020 Burunsuzyan filed a request for entry of default judgment
seeking $600,000 in damages, plus costs. Burunsuzyan
submitted her declaration in support of the request, but the
declaration did not declare her statements were made under
penalty of perjury. Burunsuzyan averred in her declaration that
the incoming calls and text messages caused by Roger’s conduct
rendered her cell phone “completely debilitated for several days.”
Burunsuzyan could not use her phone to reach her two teenage
sons, disrupting her family life and causing her anxiety and
emotional distress. Further, Burunsuzyan used her personal cell
phone for her legal practice and likely missed professional calls,
including referrals for new clients. Unless Burunsuzyan turned
off her phone at night, she could not sleep due to “calls and
texts . . . coming in ‘around the clock.’” However, turning her
phone off in the evening made Burunsuzyan “concerned about . . .
[her] elderly parents being able to reach [her] in the middle of the
night.” Burunsuzyan answered some of the calls and was “often
confronted with profanity and aggressive taunting and
accusations” when she explained to the callers that the phone

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number did not belong to Roger. Further, many of the text
messages Burunsuzyan received attached obscene photographs or
videos depicting male and female genitalia, which upset
Burunsuzyan. Burunsuzyan attached copies of numerous text
messages she had received, identifying them as a “small
sampling” of the total messages. (Italics and underlining
omitted.)
In support of her request for default judgment,
Burunsuzyan also filed a second statement of damages, this time
using Judicial Council form CIV-050 (form CIV-050), which she
served by mail on Roger at the Calabasas address. The form
stated Burunsuzyan sought non-economic damages of $250,000
for pain, suffering, and inconvenience; $250,000 for emotional
distress; and $100,000 in economic damages for loss of business
opportunities.
On March 4, 2020 the trial court entered a default
judgment against Roger in the amount of $601,235.15, including
$600,000 in damages, plus costs. In a minute order entered on
the same day, the court found Burunsuzyan had “provided
sufficient evidence to support the judgment sought.”

B. Roger’s Motion To Set Aside the Default Judgment
On December 2, 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

1 Roger also sought relief under Code of Civil Procedure
section 473.5, but he has abandoned this basis for relief on
appeal. Further undesignated statutory references are to the
Code of Civil Procedure.

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answer to the complaint and “to defend the action.”2 Roger
asserted he was in New York on March 20, 2019 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 relating to 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
from 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.

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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 Burunsuzyan 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. Burunsuzyan 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 Burunsuzyan pointed to the
absence of evidence of an airline itinerary, business records, or
ground transportation relating to Roger’s asserted 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
belong to Roger 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.

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 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
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 Chichyan’s suit 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.
In the video,3 the man holding the camera phone can be
heard off-screen saying, “‘Hey Dimitri?’” A second man responds,
but that answer cannot be discerned from the recording. The
first man then states, “‘Here you go Dimitri,’” and a hand can be

3 The record does not reflect whether Burunsuzyan lodged a
copy of the video with the trial court in this case or served it on
Roger’s attorneys. However, it is clear all parties and the court
reviewed a copy of the video in connection with Roger’s motion to
set aside the default judgment, and the video was lodged with the
court and served on all parties in the related case against Roger.
As Roger’s attorney states in her declaration, “I have now seen
the alleged video of service numerous times.” Similarly, the court
in its April 27 ruling discusses the video, noting “this Court is
asked to determine whether that video shows Roger being served
with a copy of the summons and complaint.”

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seen dropping 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.
In his reply, Roger argued the video showed that Weller did
not identify himself as a process server with court documents
before dropping the documents on the ground in front of Roger.
Further, the video showed the young Black man had “an
extremely confused look on his face, and appears to be somewhat
uneasy, uncomfortable, and apprehensive about [the] man
running up and recording him,” and therefore Roger did not
understand who Weller was or the purpose of the documents.
On April 27, 2021 the trial court denied Roger’s motion.
The court found the video corroborated Weller’s declaration,
reasoning, “The man in the video appears identical to the publicly
available pictures of Roger. While the video is undated, Roger
cannot provide his flight information to confirm—as he has
always asserted—that he was not at the residence on the day in
question.” The court found “Weller identified himself as a process
server with legal documents and that Roger knowingly refused to
accept them and walked away. . . . [¶] . . . Roger purposefully
refused to be served and is not entitled to have the default
judgment set aside.”
Roger timely appealed.

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 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 based on 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; accord, Mechling v. Asbestos 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

11
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 Burunsuzyan’s action
Roger contends the trial court abused its discretion in
denying his request for equitable relief because, as Roger stated
in his declaration, he was not aware of the lawsuit until October
2020. The trial court did not abuse its discretion. In denying
Roger’s motion, the court found Weller (through his declaration)
was credible, and Roger and his father (through their
declarations) were not. As the court explained, the man shown in
the video “appears identical to the publicly available pictures of
Roger,” and Roger did not present any flight information to
confirm he was in New York on the day of the asserted service.
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.)

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 Substantial evidence supports the trial court’s findings.
Roger does not contend he is not the person seen in the video.4
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 [have led] Roger to not be fully aware of
the legal importance of the encounter, or that he was being
served, providing a satisfactory excuse for his failure to respond.”
Roger’s contention is not persuasive 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. As
the trial court found, based on the video and Weller’s declaration,
“Weller identified himself as a process server with legal
documents and . . . Roger knowingly refused to accept them and
walked away.” The court therefore resolved the conflict in the
evidence against Roger, expressly 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

4 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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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
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

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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 Not Void on Its Face for Lack of
Personal Service on Roger of an Adequate Statement of
Damages
1. Roger’s challenge to the default judgment as void is
timely
For the first time on appeal, Roger contends the default
judgment is void on its face because he was not personally served
with an adequately detailed statement of damages under
section 425.11. Section 425.11 requires a plaintiff in an action to
recover damages for personal injury or wrongful death to serve
the defendant with “a statement [of damages] setting forth the
nature and amount of damages being sought” before a default
may be taken. (§ 425.11, subds. (b) & (c); see Dhawan v. Biring
(2015) 241 Cal.App.4th 963, 968-969.) Burunsuzyan argues we
lack 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’s challenge is
timely.
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,
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”].) “‘[Q]uestions of

15
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 time.”].)
Therefore, although Roger failed to argue in the trial court
that the default judgment was void on its face, the argument is
properly before us on appeal from the denial of his motion to set
aside the default judgment.

2. The default judgment is not void
Roger contends the March 13, 2019 statement of damages
personally served on him with the complaint “does not comport
with due process principles because it [did] not give Roger actual
notice of his potential liability so as to make a ‘fair and informed’
decision on how to proceed.” Roger asserts the operative

16
statement of damages “merely lists [Burunsuzyan’s] total general
damages and her total special damages,” and further, it did not
provide adequate notice because it was not on mandatory form
CIV-050.5 Neither contention has merit.
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 v.
Nationstar Mortgage, LLC, supra, 7 Cal.App.5th at p. 1328.)
“Procedural due process requires ‘“that a defendant be
given notice of the existence of a lawsuit and notice of the specific
relief which is sought . . . . The logic underlying this principle is
simple: a defendant who has been served with a lawsuit has the
right, in view of the relief which the complainant is seeking from
him, to decide not to appear and defend. However, a defendant is
not in a position to make such a decision if he or she has not been
given full notice.”’” (Yu v. Liberty Surplus Ins. Corp. (2018)
30 Cal.App.5th 1024, 1031; accord, Greenup v. Rodman (1986)
42 Cal.3d 822, 826 (Greenup) [§§ 580 and 425.11 “aim to ensure
that a defendant who declines to contest an action does not

5 We agree with Roger that Burunsuzyan’s statement of
damages on form CIV-050, which Burunsuzyan served by mail on
Roger and filed with the court in support of her request for
default judgment, does not comport with the requirement under
section 425.11, subdivision (d)(1), that “[i]f a party has not
appeared in the action, the statement shall be served in the same
manner as a summons” (i.e., by personal service). Further,
service of the statement of damages failed to comply with section
425.11, subdivision (c), requiring the statement of damages be
served on the defendant “before a default may be taken.”

17
thereby subject himself to open-ended liability”].) Consistent
with this principle, “a default judgment greater than the amount
specifically demanded is void as beyond the court’s jurisdiction.”
(Greenup, at p. 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
statement [of damages] required by Section 425.11.”].)
“‘Section 425.11 has been construed to require “a statement
of both special and general damages sought [because] . . . such
information aids a defendant in evaluating the validity of
plaintiff’s damage claims with regard to their provability.”’”
(Schwab v. Southern California Gas Co. (2004) 114 Cal.App.4th
1308, 1322, disapproved on another ground in Sass v. Cohen
(2020) 10 Cal.5th 861; accord, Schwab v. Rondel Homes,
Inc. (1991) 53 Cal.3d 428, 432.)6 Here, the statement of damages
personally served on Roger satisfied this requirement by stating
Burunsuzyan sought economic (special) damages totaling
$100,000 and non-economic (general) damages totaling $500,000.
Roger points out that form CIV-050 requires a plaintiff to
provide detail as to certain subcategories of the general and
special damages sought from the defendant. For example, the

6 When section 425.11 was first enacted in 1974, a plaintiff
seeking a default judgment had to give notice of “the amount of
general and special damages sought to be recovered.”
(Stats. 1974, ch. 1481, § 2.) A 1993 amendment replaced this
phrase with the language of the present statute that requires the
plaintiff serve a statement setting forth the nature and amount of
damages being sought before a default may be taken.
(Stats. 1993, ch. 456, § 2; § 425.11, subd. (c).) However, as
discussed, the courts have continued to require notice of the
general and special damages sought.

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general damages section of form CIV-050 provides blank lines for
a plaintiff in a personal injury action to specify the amount of
damages for “[p]ain, suffering, and inconvenience”; “[e]motional
distress”; “[l]oss of consortium”’; and “[o]ther.” As to special
damages, form CIV-050 provides blank lines for a personal-injury
plaintiff to specify damages sought for “[m]edical expenses”;
“[f]uture medical expenses”; “[l]oss of earnings”; “[l]oss of future
earning capacity”; “[p]roperty damage”; and “[o]ther.”
Roger is correct that the Judicial Council developed and
approved form CIV-050 for mandatory use as a statement of
damages under section 425.11. (See § 425.12, subd. (b) [“The
Judicial Council shall develop and approve an official form for
use as a statement of damages pursuant to Sections 425.11 and
425.115.”]; Gov. Code, § 68511 [“The Judicial Council may
prescribe by rule the form and content of forms used in the courts
of this state. When any such form has been so prescribed by the
Judicial Council, no court may use a different form which has as
its aim the same function as that for which the Judicial Council’s
prescribed form is designed.”].) But it does not follow that
Burunsuzyan’s failure to use form CIV-050 (or provide the level
of detail it requires) means the statement of damages personally
served on Roger cannot support entry of the default and default
judgment, especially given the Supreme Court’s direction in
Greenup, supra, 42 Cal.3d at page 827 that the plaintiff must
“‘give notice to the defendant of the amount of special and general
damages sought’ before obtaining a default judgment.” Roger
cites to no authority for the proposition a plaintiff’s failure to
provide the defendant with the nature of damages sought at the
level of detail required by form CIV-050 when personally serving
a statement of damages in a personal injury case—

19
notwithstanding specification of the general and special damages
sought—renders a subsequently entered default judgment void
on its face for lack of jurisdiction. He has therefore forfeited this
argument. (See People v. Bryant, Smith and Wheeler (2014)
60 Cal.4th 335, 363 [“If a party’s briefs do not provide legal
argument and citation to authority on each point raised, ‘“the
court may treat it as waived, and pass it without
consideration.”’”]; In re Marriage of Davila & Mejia (2018)
29 Cal.App.5th 220, 227 [“‘Issues not supported by citation to
legal authority are subject to forfeiture.’”].)
Although form CIV-050 would have provided Roger with
additional detail as to the subcategories of special and general
damages sought by Burunsuzyan, we are not persuaded the
statement of damages personally served on Roger in this case
failed to apprise him of the nature and amount of damages being
sought or otherwise impeded his ability to make a “‘fair and
informed’” decision whether to defend the case. (Greenup, supra,
42 Cal.3d at p. 829.)

C. Roger Has Forfeited His Challenge to Burunsuzyan’s
Declaration
For the first time on appeal Roger contends substantial
evidence does not support the damages awarded in the default
judgment because Burunsuzyan failed to declare the statements
she made in her default prove-up declaration were true under
penalty of perjury. Roger is correct that Burunsuzyan’s
declaration was inadmissible, but as Burunsuzyan argues, Roger
failed to appeal the default judgment. Nor did he raise this
argument in his motion to vacate the default judgment, which is

20
the subject of this appeal. Thus, Roger has forfeited this
contention.
Under section 585, subdivision (b), “if the complaint
seeks . . . monetary relief in amounts that require additional
evidence or the exercise of judgment to determine, the plaintiff
must request entry of judgment by the court.” (Holloway v.
Quetel (2015) 242 Cal.App.4th 1425, 1432; accord, Kim v.
Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 287.) “In
those cases the plaintiff must affirmatively establish his or her
entitlement to the specific judgment requested.” (Holloway, at
p. 1432; accord, Kim, at p. 287; see § 585, subd. (b) [“The court
shall hear the evidence offered by the plaintiff, and shall render
judgment in the plaintiff’s favor for that relief, not exceeding the
amount stated . . . in the statement required by
Section 425.11 . . . , as appears by the evidence to be just.”].)
A party seeking a default judgment must submit, among
other documents, “[d]eclarations or other admissible evidence in
support of the judgment requested.” (Cal. Rules of Court,
rule 3.1800(a)(2); accord, Holloway v. Quetel, supra,
242 Cal.App.4th at p. 1432; see § 585, subdivision (d) [authorizing
trial court to “permit the use of affidavits, in lieu of personal
testimony, as to all or any part of the evidence or proof required
or permitted to be offered, received, or heard” on a plaintiff’s
request for default judgment].) “The facts stated in the affidavit
or affidavits shall be within the personal knowledge of the affiant
and shall be set forth with particularity, and each affidavit shall
show affirmatively that the affiant, if sworn as a witness, can
testify competently thereto.” (§ 585, subd. (d).)
Further, section 2015.5 requires that a declaration or
affidavit recite that “it is certified or declared by him or her to be

21
true under penalty of perjury,” and if executed in California,
state the date and place of execution. (See Sweetwater Union
High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931,
941 [“To qualify as an alternative to an affidavit, a declaration
must be signed and recite that the person making it certifies it to
be true under penalty of perjury.”]; Kulshrestha v. First Union
Commercial Corp. (2004) 33 Cal.4th 601, 610.) An unsworn
declaration that fails to comply with section 2015.5 is
inadmissible hearsay. (Kulshrestha, at pp. 608-609, 612;
ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 217.)
Burunsuzyan’s default prove-up declaration was
inadmissible hearsay because it was not signed under penalty of
perjury. Although Roger did not object to the declaration prior to
entry of the default judgment, he had no right to do so.
“California law does not give defaulting defendants the right to
contest the amount of damages. Our authorities indicate that a
defendant who defaults is ‘out of court’ and not entitled to
participate in the prove-up hearing.” (Sass v. Cohen, supra,
10 Cal.5th at p. 882; accord, Harbour Vista, LLC v. HSBC
Mortgage Services Inc. (2011) 201 Cal.App.4th 1496, 1504 [“after
a plaintiff has obtained a default under section 585, the
defendant no longer has any right to participate in the case”].)
However, in some circumstances the Courts of Appeal have
allowed defaulting defendants to challenge the sufficiency of the
default prove-up evidence on appeal from the default judgment.
(See Kim v. Westmoore Partners, Inc., supra, 201 Cal.App.4th at
pp. 288-289 & fn. 11 [“On appeal, defendant may challenge the
sufficiency of the evidence offered to support the default
judgment.”]; Sporn v. Home Depot USA, Inc. (2005)
126 Cal.App.4th 1294, 1303 [observing Courts of Appeal on

22
appeal from default judgments have allowed “an attack on appeal
where the damages awarded . . . are excessive”].) This would be a
very different case had Roger challenged the sufficiency of
Burunsuzyan’s declaration on appeal from the default judgment.
But he did not. And the time for Roger to appeal the default
judgment had long since passed by the time he filed his notice of
appeal.7
We are unaware of any authority for allowing a defendant
to raise a challenge to the sufficiency of the evidence supporting a
default judgment for the first time on appeal from the denial of a
motion to set aside a default judgment. And even if Roger could
have challenged Burunsuzyan’s declaration in his motion to set
aside the default judgment, he failed to do so. Thus, he has
forfeited the argument by not raising it in the trial court.8
(Johnson v. Greenelsh (2009) 47 Cal.4th 598, 603 [“‘issues not
raised in the trial court cannot be raised for the first time on
appeal’”]; Hanna v. Mercedes–Benz USA, LLC (2019)
36 Cal.App.5th 493, 513 [“‘“As a general rule, theories not raised
in the trial court cannot be asserted for the first time on
appeal.”’”]; see Evid. Code, § 353 [“A verdict or finding shall not
be set aside, nor shall the judgment or decision based thereon be
reversed, by reason of the erroneous admission of evidence
unless: [¶] (a) There appears of record an objection to or a

7 Roger filed his notice of appeal on June 21, 2021, more than
180 days after entry of the March 4, 2020 default judgment. (See
Cal. Rules of Court, rule 8.104 (a)(1)(C).)
8 Roger does not contend Burunsuzyan’s failure to attest that
the statements she made in her default prove-up declaration
were true under penalty of perjury rendered the default judgment
void on its face.

23
motion to exclude or to strike the evidence that was timely made
and so stated as to make clear the specific ground of the objection
or motion.”].)

DISPOSITION

The order denying Roger’s motion to set aside the default
judgment is affirmed. Burunsuzyan is to recover her costs on
appeal.

FEUER, J.

We concur:

PERLUSS, P. J.

SEGAL, J.

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