Phillips v. Wang CA1/2

Filed 5/25/22 Phillips v. Wang CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

TWELL B. PHILLIPS, SR. et al.
Plaintiffs and Respondents,
A162181
v.
CHANG WANG et al., (Solano County
Super. Ct. No. FCS050396)
Defendants and Appellants.

Plaintiffs Twell and Vasie Phillips, represented by an experienced
attorney, obtained a default judgment of over half a million dollars against
their self-represented former landlords, defendants Chang and Yen Wang.1
We requested supplemental briefing on what we believe are the principal
issues to be decided on defendants’ appeal: (1) Is the default judgment void
because rendered in excess of the trial court’s jurisdiction, and (2) if so, did
the trial court err in denying Chang’s motion to set aside the default
judgment pursuant to Code of Civil Procedure2 section 473, subdivision (d)?
Answering both questions in the affirmative, we reverse the trial court’s

For ease of reference and with no disrespect intended, we refer to
1

persons by their first names.
All undesignated statutory references are to the Code of Civil
2

Procedure.

1
decision denying the motion for relief and remand for further proceedings
consistent with this opinion.
BACKGROUND
The Lease
Yen owned a single-family home located on Beverly Drive in Vallejo,
which she managed as a Section 8 rental (the premises). Plaintiffs rented
the premises from June 2013, until September 2016. As Section 8 recipients,
plaintiffs were responsible for paying a portion of the monthly rent of $1,080,
and the City of Vallejo Housing and Community Development Agency paid
the balance. In April 2016, Chang informed plaintiffs that rent would
increase to $1,500 per month effective May 2016.
The Unlawful Detainer Action
On August 20, 2016, Chang served plaintiffs with a three-day notice to
pay rent or quit, which demanded that plaintiffs immediately pay $3,371 in
delinquent rent for the period July 2016, through September 2016. Chang
filed an unlawful detainer action against plaintiffs on September 2, 2016,
and obtained a default judgment for possession of the premises 10 days later.
Plaintiffs moved out on September 20, 2016.
Plaintiffs’ Action Against Defendants
On February 23, 2018, plaintiffs filed a complaint against defendants
arising out of their prior tenancy. Plaintiffs alleged that the premises failed
Section 8 inspections in 2014, 2015, and 2016; the appliances, heating, and
plumbing were defective; the floors and stairways were unsafe; and spiders
infested the premises due to holes in the walls. They further alleged that
Twell was injured on February 23, 2016, when he fell through the rear
landing stairs. According to plaintiffs, defendants “engaged in a pattern and

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practice of taking adverse actions against them after they requested
repairs . . . [or] engaged in other legally protected activity.”
The complaint alleged nine causes of action. Because the damages
requested in the complaint are central to determining whether the default
judgment is void, we discuss plaintiffs’ claims in some detail. In the first
cause of action for breach of contract, fourth cause of action for nuisance, and
the fifth cause of action for breach of the covenant of quiet enjoyment,
plaintiffs requested an award of damages in excess of the superior court’s
jurisdictional threshold of $25,000. In the second cause of action for
negligence, the third cause of action for breach of the implied warranty of
habitability, the sixth cause of action for collection of rent for untenantable
dwelling, and the seventh cause of action for premises liability, plaintiffs
requested an award of damages “according to proof.” The eighth cause of
action for bad faith retention of security deposit requested the return of
plaintiffs’ security deposit (amount unspecified) and statutory damages of up
to twice the amount of plaintiffs’ security deposit. The ninth cause of action
for unlawful business practices in violation of Business and Professions Code
section 17200 sought injunctive relief, restitution “in an amount to be proven
at trial,” reimbursement of all rent paid for the premises, and
“disgorge[ment] of ill-gotten gains and profits resulting from false
statements, misrepresentations, and unlawful acts.” Plaintiffs sought an
unspecified award of punitive damages in connection with the second, third,
fourth, fifth, and seventh causes of action. They requested statutory
penalties in connection with the fifth cause of action (“two thousand dollars
for each retaliatory act of Landlords”), sixth cause of action (“not less than
$100 and not more than $5,000 for each violation of the statute”) and eighth
cause of action (“up to twice the amount of the security deposit”). Finally,

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plaintiffs sought an award of attorney’s fees based on contract and/or
statute.
Defendants, who have been self-represented throughout this litigation,
filed a motion to strike the complaint on April 2, 2018. In their brief two-
page motion, defendants stated, without reference to admissible evidence or
a memorandum of points and authorities, that the premises passed all
required inspections, did not require repairs, and that “Plaintiffs never
report body injury during the years at [the premises].” During a court-
ordered “meet and confer” via e-mail, Chang told plaintiffs’ attorney that he
would withdraw the motion to strike and file an answer to the complaint.
Chang did not follow through. The trial court denied defendants’ motion to
strike because it failed to comply with California Rules of Court, rule
3.1300(c), and defendants had not filed a proof of service demonstrating that
they served plaintiffs’ attorney with a copy of the motion.
Defendants answered the complaint on July 23, 2018, repeating in
their answer many of the factual assertions they had raised in their motion
to strike.
Plaintiffs served each defendant with requests for production of
documents, form interrogatories, special interrogatories, and requests for
admissions on August 31, 2018. Defendants did not provide timely
responses to the discovery requests. Plaintiffs moved for an order deeming
the requests for admissions to be deemed admitted, for responses without
objection to the other discovery requests, and for monetary sanctions of
$3,360. The trial court granted the unopposed motion as to most of

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plaintiffs’ discovery requests,3 and ordered defendants to pay reduced
monetary sanctions of $1,490. On February 8, 2019, plaintiffs served
defendants with a copy of the court order directing them to provide verified
responses without objection to the outstanding discovery requests.
Defendants did not comply with the court’s discovery order. On April
4, 2019, plaintiffs filed a motion seeking terminating sanctions. The court
granted the unopposed motion on June 24, 2019, striking the answer filed by
defendants’ and ordering that the defendants’ default be entered.
In July 2019, plaintiffs prepared two statements of damages pursuant
to sections 425.11 and 425.115, which listed the damages claimed by each
plaintiff. Plaintiffs served defendants with copies of the statements of
damages electronically on July 24, 2019, by substitute service on July 25,
2019,4 and by mail on July 26, 2019. Plaintiffs re-served the statements of
damages on Chang, on behalf of himself and his wife, at their home in Santa
Rosa on July 30, 2019. The statement of damages requested a joint and
several damages award of $280,770 against defendants, punitive damages of
$50,000, and “reasonable attorney’s fees.”
A default prove-up hearing was held on October 18, 2019. Chang
appeared by phone, although, as a defaulted defendant, he was not
permitted to participate in the hearing.5 Plaintiffs testified and presented

3The court denied plaintiffs’ request for an order that Yen respond to
form interrogatories, finding no proof that plaintiffs had directed form
interrogatories to her.
4The substitute service allegedly occurred at a residence in Tiburon,
although plaintiffs’ attorney was aware that defendants’ mailing address
was in Santa Rosa. Chang asserted that plaintiffs initial attempt to
personally serve the statements of damages was ineffective.
5 When the judge told him “you’re not a participant in this hearing,
again, because you’re in default,” Chang replied: I understand that, but I

5
substantial documentary evidence in support of their claims. When the
court queried whether plaintiffs intended to present additional evidence in
support of their request for punitive damages, plaintiffs decided to withdraw
this request. At the conclusion of the prove-up hearing, the court took the
matter under submission.
The court issued a written “order re default judgment” on December
12, 2019. The court denied plaintiffs’ request for punitive damages, finding
that plaintiffs had not proven all of the required elements. With the
exception of a claim for $1,928 in special damages allegedly incurred by
plaintiffs’ adult son, who was not a party to the litigation, the court granted
each of plaintiffs’ monetary demands in the amount requested. The court
awarded special and statutory damages of $288,813.86 and general damages
of $62,560, for a total damages award of $351,373.86. The court determined
that a reasonable lodestar attorney’s fee award was $86,100, then doubled
that amount to $172,200 to reflect the “difficulty, novelty and complexity” of
the case; the fact that plaintiffs’ counsel worked on a contingency fee basis;
and “to enable people in the position of these plaintiffs at the outset of this
case to obtain experienced counsel.” The attorney’s fees award was reduced
by $1,490 to avoid double-billing defendants for the discovery sanctions they
were ordered to pay in June 2019. The court awarded costs of $4,758.24.
On December 26, 2019, the court entered a default judgment against
defendants, jointly and severally, in the amount of $526,842.10. Plaintiffs
served defendants with notice of entry of judgment on January 14, 2020.

have a reason to be default [sic] because of my—I have couple of heart
attacks.” The judge responded “Mr. Wang, this is not the time to address the
question of whether or not you should remain in default.”

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 On February 14, 2020, Chang moved to set aside the default judgment
on three grounds. First, Chang argued pursuant to section 473, subdivision
(b) that the court should exercise its discretion to set aside the judgment
because it was entered due to his inadvertence, surprise, mistake, or
excusable neglect. Second, he asserted that the judgment must be set aside
because plaintiffs failed to serve him with a statement of damages before
requesting entry of default as required by section 425.11, subdivision (c).
Finally, Chang argued that the judgment must be set aside because it is
void. (§ 473, subd. (d).) Although signed only by Chang, the caption of the
motion refers to “defendants” jointly, and the body of the motion describes
them as elderly litigants who were “deprived of due process and rendered
unable to properly defend against the award.”
Construing Chang’s motion as a request to set aside the default,6
which had been entered as a discovery sanction, plaintiffs argued that the
motion was time-barred because it was filed more than six months after
entry of default. They argued that Chang had not proven mistake or
excusable neglect. Third, plaintiffs asserted that “this was not a case where
personal injury or wrongful death are alleged as causes of action,” rendering
section 425.11 inapplicable. Fourth, plaintiffs argued, alternatively, that the
complaint adequately alerted defendants to the amount of damages claimed,
or that defendants had “actual notice” of the amount claimed due to being
served with case management statements and other documents. Fifth,
plaintiffs maintained that serving defendants with a statement of damages
in July, prior to the prove-up hearing in October, satisfied due process.

6Although the caption states that Chang’s motion seeks to set aside
the default and the default judgment, the body of the motion requests that
only the default judgment be set aside.

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 Chang did not appear at the hearing on his motion to set aside the
default judgment. The court adopted its tentative ruling to deny the motion
on the grounds that: (1) the motion was filed more than six months after
defendants’ default was entered; (2) Chang failed to attach a proposed
responsive pleading to the motion; (3) “setting aside the default judgment
without setting aside the default itself would be an idle act and therefore not
permitted”; and (4) Chang failed to establish that the judgment was entered
based on mistake, inadvertence, or excusable neglect. The court rejected
Chang’s due process arguments, noting that “[h]e agreed to electronic
service, and he was served with a [section] 425.11 Statement of Damages
three months before the prove-up hearing.” Plaintiffs served defendants
with a copy of the court order denying the motion for relief on March 24,
2020.
Chang filed a notice of appeal from the order denying the motion for
relief on May 29, 2020. Yen is not listed as an appellant, and she did not
sign the notice of appeal.
DISCUSSION
I. Plaintiffs’ Procedural Objections
Before we reach the merits of the appeal, we address various
procedural objections raised by plaintiffs.
The Notice of Appeal
Plaintiffs maintain that because Yen is not listed as an appellant and
did not sign the notice of appeal, only Chang may pursue the appeal. We
disagree.
A notice of appeal must be liberally construed in favor of its
sufficiency; this rule “applies to defects in the notice’s designation of the
parties to the appeal,” including mis-describing a party or omitting a party

8
from the notice entirely. (Cal. Rules of Court, rule 8.100(a)(2); K.J. v. Los
Angeles Unified School Dist. (2020) 8 Cal.5th 875, 885–886.) As plaintiffs
acknowledge, the opening brief identifies both Chang and Yen as
“appellants.” Additionally, Yen confirmed her intention to participate in the
appeal by signing the supplemental letter briefs submitted by defendants on
March 28 and April 29, 2022. As the appeal seeks to reverse the default
judgment entered against defendants jointly and severally,7 plaintiffs are
not prejudiced by our liberal construction of the notice of appeal to include
both defendants. (Toal v. Tardif (2009) 178 Cal.App.4th 1208, 1217.)
And, while plaintiffs are correct that “an appellant or his or her
attorney” must generally sign a notice of appeal (Cal. Rules of Court, rule
8.100(a)(1)), this language has been construed to allow “any person, attorney
or not, who is empowered to act on appellant’s behalf” to sign the notice of
appeal. (Seeley v. Seymour (1987) 190 Cal.App.3d 844, 853.) Here, as in
Toal, we construe the notice of appeal to include both defendants based on
our conclusion that Chang, Yen’s husband, “was authorized to act on her
behalf in the absence of a clear and satisfactory showing that such authority
was lacking.” (Toal v. Tardif, supra, 178 Cal.App.3d at p. 1216.)

7 Plaintiffs suggest that even if the default judgment was reversed, it
would continue to bind Yen because she chose not to appeal. While, as a
general rule, a judgment is final against a nonappealing party even if
reversed on the appeal of another party, this rule does not apply “where
portions of the judgment adverse to a nonappealing party are so interwoven
with the whole that appeal from a part affects the other parts; in such a
situation, the appellate court can reverse the entire judgment if it is
necessary to do justice.” (City of Santa Maria v. Cohen (2017) 11
Cal.App.5th 96, 107.) Here, even if we agreed with plaintiffs that Yen is not
a proper party to the appeal, the interests of justice would compel us to
consider whether the joint and several default judgment should be enforced
against her if reversed on appeal as to her husband.

9
Waiver
Plaintiffs assert that one or both defendants have waived their right to
attack on the judgment on appeal. First, plaintiffs note that Yen did not join
the motion for relief in the trial court. Second, Chang, in challenging the
judgment in his motion for relief, relied only on section 425.11, subdivision
(c), and failed to cite section 580. Third, the notice of appeal references
Chang’s motion for relief, a separately appealable order, and does not
mention the default judgment. Fourth, defendants failed to discuss the
validity of the default judgment in their opening brief. We reject plaintiffs’
waiver arguments for the reasons that follow.
It is generally true that issues which were not raised in the trial court
or properly addressed in an appellant’s opening brief are deemed waived.
(Curcio v. Svanevik (1984) 155 Cal.App.3d 955, 960; Badie v. Bank of
America (1998) 67 Cal.App.4th 779, 784–785.) However, the right to request
that a void judgment be vacated cannot be waived. Because a clerk or judge
has no authority to enter a default unless and until the defendant has
received formal notice of the potential damages, a default entered without
such formal notice is invalid. (Schwab v. Southern California Gas Co. (2004)
114 Cal.App.4th 1308, 1324–1325, disapproved on other grounds in Sass v.
Cohen (2020) 10 Cal.5th 861, 887, fn. 12 (Sass).) A request to set aside a
void judgment can be raised at any time,8 including for the first time on
appeal. (Matera v. McLeod (2006) 145 Cal.App.4th 44, 59 (Matera); People

8 See, e.g., Dhawan v. Biring (2015) 241 Cal.App.4th 963, 967: motion
to vacate default judgment for failure to comply with section 580 timely
when filed over seven years after defendants served with notice of entry of
judgment, and over six years after defendants’ motion for relief pursuant to
section 473, subdivision (b) was heard and denied.

10
ex. rel. Lockyer v. Brar (2005) 134 Cal.App.4th 659, 666; National Diversified
Services, Inc. v. Bernstein (1985) 168 Cal.App.3d 410, 417.)
Additionally, “[a]n appellate court has the discretion to consider for the
first time on appeal an issue of law based on undisputed facts.” (Matera,
supra, 145 Cal.App.4th at p. 59.) In this case, the court offered both parties
an opportunity to submit supplemental briefing on the issues raised by
sections 425.11, subdivision (c) and 580. (Gov. Code, § 68081.) For these
reasons, plaintiffs’ arguments that the defendants have waived their right to
challenge the default judgment are rejected.
Disentitlement Doctrine
“An appellate court may dismiss an appeal where the appellant has
willfully disobeyed the lower court’s orders or engaged in obstructive tactics.”
(Gwartz v. Weilert (2014) 231 Cal.App.4th 750, 757–758.) “The rationale
underlying the doctrine is that a party to an action cannot seek the aid and
assistance of an appellate court while standing in an attitude of contempt to
the legal orders and processes of the courts of this state.” (Id. at p. 757.)
The doctrine is most often applied in egregious cases where a party has
repeatedly defied court orders. (See, e.g., Gwartz, at pp. 755–758 [judgment
debtors repeatedly violated trial court’s postjudgment order enjoining them
from transferring or dissipating assets]; Say & Say v. Castellano (1994) 22
Cal.App.4th 88, 94 [several meritless appeals taken from non-appealable
orders for purpose of delay by adjudicated contemnor].)
Plaintiffs argue for either “denial” or “outright dismissal” of the appeal
because “it was Appellant’s discovery abuse that resulted in the default and
default judgment.” Plaintiffs cite no authority, and we have found none, in
which the disentitlement doctrine has been applied to preclude a defendant
whose answer was stricken as a discovery sanction from challenging the

11
validity of a default judgment on jurisdictional grounds. To the contrary, the
California Supreme Court expressly held in Greenup v. Rodman (1986)
42 Cal.3d 822, 827–828 (Greenup) that a defendant whose answer was
stricken as a discovery sanction has the right to ask that a default judgment
entered in excess of jurisdiction be modified or vacated. (See also, Matera,
supra, 145 Cal.App.4th at 60.) Accordingly, we decline to exercise our
discretion to dismiss the appeal based on the disentitlement doctrine.
II. The Default Judgment Must Be Reversed
“It is well settled that a plaintiff may not take a default against a
defendant without giving the defendant actual notice of the amount of
damages claimed.” (Schwab v. Rondel Homes, Inc. (1991) 53 Cal.3d 428, 430
(Schwab); Dept. of Fair Employment & Housing v. Ottovich (2014) 227
Cal.App.4th 706, 712 (Ottovich); Van Sickle v. Gilbert (2011) 196 Cal.App.4th
1495, 1521.) “The striking of a defendant’s answer as a terminating sanction
leads inexorably to the entry of default. (§ 585, subds. (a), (b).)” (Matera,
supra, 145 Cal.App.4th at p. 62.) “[A] default taken after the answer to a
complaint is stricken as a discovery sanction is treated the same way as a
default taken after the defendant fails to answer the complaint.” (Ottovich,
at p. 712; Greenup, supra, 42 Cal.3d at pp. 824–829.)
“ ‘The relief granted to the plaintiff, if there is no answer, cannot
exceed that demanded in the complaint. . . . (§ 580, subd. (a).) The only
exceptions to section 580 are personal injury or wrongful death cases and
cases requesting punitive damages. (§§ 580, subd. (a), 425.11, 425.115.)’ ”
(Airs Aromatics, LLC v. CBL Data Recovery Technologies, Inc. (2018) 23

12
Cal.App.5th 1013, 1018 (Airs Aromatics).) This case implicates section 580
and section 425.11, subdivision (c).9
“A default judgment is void . . . if the court granted relief which it had
no power to grant including a default judgment which exceeds the amount
demanded in the complaint.” (Falahati v. Kondo (2005) 127 Cal.App.4th
823, 830, fns. omitted.) The trial court may, on the motion of either party,
set aside any void judgment or order. (§ 473, subd. (d).) “We review de novo
the trial court’s determination that a default judgment is or is not void.”
(Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 752.)
A. The Default Judgment is Void Because Defendants Were
Not Served with a Statement of Personal Injury Damages
Prior to Entry of Default
“Section 425.11 controls actions ‘to recover damages for personal injury
or wrongful death.’ (Id., subd. (b).)” (Sass, supra, 10 Cal.5th at p. 870.) The
plaintiff must serve a statement of damages before a default may be taken,
which specifies “the amount of special and general damages sought to be
recovered.” (§ 425.11, subd. (c); Schwab, supra, 53 Cal.3d at p. 434.) A
default judgment cannot be upheld where a statement of damages was not
served upon the defendant until after the default was entered. (Schwab, at
p. 434; Hamm v. Elkin (1987) 196 Cal.App.3d 1343, 1346.)
Plaintiffs asserted in the trial court that section 425.11, subdivision (c)
did not apply to their case. However, the prayer of the complaint demanded
“[t]hat Defendants be ordered to pay to Plaintiffs general damages for
personal injury, bodily injury, mental and emotional distress caused by
Defendants’ acts and omissions.” The trial court awarded Twell general and
special damages for personal injuries he suffered when he fell on the stairs,

9 Because plaintiffs withdrew their request for punitive damages, we
do not address the requirements of section 425.115.

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as well as $24,000 in emotional distress damages for each plaintiff. Based
on these undisputed facts, we find that plaintiffs were required to comply
with section 425.11, subdivision (c). (Schwab, supra, 53 Cal.3d at p. 432.)
Plaintiffs contend that serving defendants with a statement of
damages on July 30, 2019, more than one month after defendants’ default
was entered on June 24, 2019, comports with due process under the
circumstances of this case. It does not.
“[D]ue process requires notice to defendants, whether they default by
inaction or by wilful obstruction, of the potential consequences of a refusal to
pursue their defense.” (Greenup, supra, 42 Cal.3d at p. 829.) “A defendant
who is denied adequate notice of the amount of the default judgment that
may be entered against the defendant is effectively denied a fair hearing.”
(Matera, supra, 145 Cal.App.4th at 61; Greenup, at p. 826.) “A default
judgment resulting from the denial of a fair hearing in this manner is void.”
(Ibid.) Because “[t]he failure of plaintiff to serve the statement of requested
damages deprived defendant[s] of any actual notice of [their] potential
liability; it thus cannot be said that the omission was harmless.” (Stevenson
v. Turner (1979) 94 Cal.App.3d 315, 320.)
B. The Default Judgment is Void Because the Complaint
Did Not Provide Defendants with Adequate Notice of
the Non-personal Injury Damages
Cases interpreting section 580 consistently hold that “defaulting
defendants should not be subject to damages in excess of an amount
specifically set out in the complaint.” (Becker v. S.P.V. Construction (1980)
27 Cal.3d 489, 494.) “[A]dequate notice of the judgment that may be
assessed in default is ‘a protection to which every defendant is entitled,’ even
those who ‘deliberately thwarted [the opposing party’s] discovery efforts.’ ”
“[T]he notice afforded to a defendant must be ‘formal notice of potential

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liability,’ which cannot be supplanted by ‘actual notice.’ ” (Sass, supra,
10 Cal.5th at p. 873; citing Greenup, supra, 42 Cal.3d at pp. 826, 829.)
According to plaintiffs, defendants “had ‘actual notice’ of damages of at
least $283,340 prior to entry of default[.]” This argument is unavailing for
two reasons. First, “courts have set aside default judgments that award
more damages than requested in the complaint even where a defendant had
actual notice of the damages the plaintiff sought.” (Airs Aromatics, supra,
23 Cal.App.5th at p. 1019.) Second, we do not agree that the complaint put
defendants on notice that that they were potentially exposed to almost
$300,000 in damages.
As to the first point, the cases construing section 580 are unequivocal
that “actual notice” is not a substitute for stating the amount of damages in
the complaint. For example, in Airs Aromatics, supra, 23 Cal.App.5th at
pages 1016–1017, the trial court denied defendant’s motion to set aside a
default judgment of $3,016.802.90 on the ground that defendant had actual
knowledge of plaintiff’s damages: defendant had filed an answer, engaged in
discovery, participated in a settlement conference where plaintiff demanded
$5 million to settle all claims, and stipulated to withdraw its answer and
allow plaintiff to enter its default. The decision was reversed on appeal
because “[t]he only specific dollar amount in [plaintiff’s] complaint refers to
damages in excess of the $25,000 jurisdictional minimum.” (Id. at p. 1024.)
Additionally, “[s]everal cases have held that a statement of damages does
not satisfy section 580 if the case does not involve personal injury or
wrongful death.” (Airs Aromatics, at p. 1019; Electronic Funds Solutions v.
Murphy (2005) 134 Cal.App.4th 1161, 1176 (Electronic Funds); Rodriguez v.
Cho., supra, 236 Cal.App.4th at p. 755; Dhawan v. Biring, supra, 241
Cal.App.4th at pp. 969–970.) Based on the foregoing, plaintiffs’ contention

15
that defendants received “actual notice” of the damages in this case by virtue
of being served with case management statements or otherwise participating
in the case before their default was taken fails.
We also reject plaintiffs’ contention that the complaint put defendants
on notice that damages of at least $283,340 could be awarded in this case.
Plaintiffs’ first, fourth, and fifth causes of action allege damages in excess of
the jurisdictional minimum of $25,000. Such allegations have been deemed
sufficient to place a defendant on notice of a potential $25,000 award for
each cause of action. (Greenup, supra, 42 Cal.3d at p. 830; Electronic Funds,
supra, 134 Cal.App.4th at p. 1177.) The fifth cause of action, in addition to
the $25,000 jurisdictional minimum, seeks statutory penalties of $2,000 for
an unspecified number of violations of Civil Code section 1940.2. The sixth
cause of action seeks $100 to $5,000 for each violation of Civil Code section
1942.4, however, like the fifth cause of action, it also fails to specify the
number of statutory violations.10 The allegations of the fifth and sixth
causes of action put defendants on notice that they could be assessed a
penalty for one violation of each statute. It is impossible to determine the
damages claimed on the eighth cause of action because the amount of
plaintiffs’ security deposit is not stated in the complaint. The causes of

10 Based on Finney v. Gomez (2003) 111 Cal.App.4th 527, 612–613,
plaintiffs argue that defendants “knew of, or should have known they
collected rent for 39 months, and therefore were exposed to potential liability
for $5,000 x 39 months [$195,000].” Finney holds that parties to a
partnership agreement, which outlined how to calculate the value of a
withdrawing partner’s interest, possessed the information necessary to
calculate damages; it is clearly distinguishable from this case. Additionally,
it is unclear if Finney is still good law based on the California Supreme
Court’s holding in Sass, supra, 10 Cal.5th at page 891 that “a plaintiff
alleging an accounting action must plead a specific dollar amount to support
a default judgment awarding monetary relief.”

16
action which are not referenced above seek damages “according to proof.” As
we read the complaint, it puts defendants on notice that damages of up to
$77,100 could be awarded against them.
Because the default judgment awarded damages of $351,373.86, well
in excess of the damages alleged on the face of the complaint (§ 580), it is
void. And because the default judgment is void, the trial court erred in
denying Chang’s motion to set it aside pursuant to section 473, subdivision
(d). (Air Aromatics, supra, 23 Cal.App.5th at p. 1023; Falahati v. Kondo,
supra, 127 Cal.App.4th at p. 831.)11
C. Remedy
“ ‘Ordinarily when a judgment is vacated on the ground the damages
awarded exceeded those pled, the appropriate action is to modify the
judgment to the maximum warranted by the complaint.’ ” (Julius Schifaugh
IV consulting Services, Inc. v. Avaris Capital, Inc. (2008) 164 Cal.App.4th
1393, 1396–1397.) “But recent cases hold that ‘even where it is possible to
modify a default judgment to a lesser amount warranted by the complaint,
the court has discretion to instead vacate the underlying default and allow
the plaintiff to amend the complaint and serve the amended complaint on
the defendant.’ ” (Air Aromatics, supra, 23 Cal.App.5th at p. 1024; Van
Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1529; Julius Schifaugh IV
Consulting Service, Inc., at pp. 1396, 1398.)

11 Based upon our determination that the judgment was entered in
excess of jurisdiction in violation of sections 425.11, subdivision (c) and 580,
we do not reach the plaintiffs’ arguments about Chang’s motion for
discretionary relief pursuant to section 473, subdivision (b), or defendants’
argument in their opening brief that the trial court should have offered them
additional assistance because they were self-represented.

17
 We asked the parties for supplemental briefing on whether any portion
of the judgment can be modified and preserved. Defendants responded that
Greenup and its progeny would support entry of a modified judgment, which
defendants calculated as $75,100. Plaintiffs argued that the award of
$351,373.86 was not “grossly excessive in light of actual notice of damages.”
Plaintiffs’ back-up position is that the complaint put defendants on notice of
$283,340 in damages, a position we have rejected.
We conclude that we must vacate the default judgment and remand for
further proceedings. Vacating the default judgment will not vacate the
default which was entered when defendants’ answer was stricken as a
discovery sanction. (Electronic Funds, supra, 134 Cal.App.4th at p. 1177.)
However, on remand, plaintiffs must decide whether to proceed with a new
default prove-up hearing with a $77,100 damage limitation, or seek to
amend their complaint to state the full amount of damages sought. (Airs
Aromatics, supra, 23 Cal.App.5th at p. 1025; Electronic Funds, at p. 1177.)
“If [they] pursue[] the latter option, ‘the default will be vacated, entitling
defendants to either attack the pleadings, or answer the amended
complaint.’ (Ibid.; see Greenup, supra, 42 Cal.3d at p. 830.)” (Airs
Aromatics, at p. 1025.)
DISPOSITION
The order denying Chang’s motion to set aside the default judgment
pursuant to section 473, subdivision (d) is reversed, and the default
judgment is vacated.
On remand, plaintiffs may elect whether to proceed with a new default
prove-up hearing seeking up to $77,100 in damages, plus attorney’s fees, if
appropriate, or seek to amend their complaint. Should plaintiffs file an

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amended complaint, the trial court shall vacate the defendants’ default, and
defendants may attack the pleadings or answer the amended complaint.
Defendants shall recover costs on appeal.

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 _________________________
Mayfield, J.*

We concur:

_________________________
Stewart, Acting P.J.

_________________________
Miller, J.

Phillips, Sr. et al. v. Wang et al. (A162181)

* Judge of the Mendocino Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

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