Opinion
D072205
12-14-2018
JUAN ALONSO, Plaintiff and Respondent, v. SERGIO A. HAROS, Defendant and Appellant.
Niddrie Addams Fuller, David A. Niddrie, John S. Addams; Renda Law Offices and Vincent Renda for Defendant and Appellant. Contreras Law and Dolores A. Contreras for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2009-00100074-CU-FR-CTL) APPEAL from an order of the Superior Court of San Diego County, Randa Trapp, Judge. Reversed and remanded with directions. Niddrie Addams Fuller, David A. Niddrie, John S. Addams; Renda Law Offices and Vincent Renda for Defendant and Appellant. Contreras Law and Dolores A. Contreras for Plaintiff and Respondent.
I.
INTRODUCTION
Sergio A. Haros appeals from a trial court order denying a motion to set aside a default judgment in the amount of $566,600 in favor of plaintiff Juan Alonso. On appeal, Haros argues that the court clerk erred in entering a default because Alonso sought entry of default on the original complaint rather than on the operative first amended complaint. Haros further contends that a subsequently entered default judgment premised on the allegedly erroneously entered default is void. In a related argument, Haros argues that the default judgment is void because the original complaint did not allege that Alonso suffered any specific amount of damages. Haros also contends that the default judgment is void because Alonso failed to serve a statement of punitive damages (Code of Civ. Pro., § 425.115) prior to the entry of the default.
Code of Civil Procedure section 425.115 specifies the manner by which a plaintiff may preserve his right to seek punitive damages in a default judgment.
Unless otherwise specified, all subsequent statutory references are to the Code of Civil Procedure.
We conclude that even assuming that the clerk erred in entering Haros's default, the ensuing default judgment was not void for that reason. However, we conclude that the default judgment against Haros is void to the extent that it awards damages in an amount greater than the $51,000 specified in the first amended complaint because there is no evidence in the record that Alonso served a statement of punitive damages before the clerk entered the default.
Accordingly, we reverse the order denying the motion to set aside the default judgment entered against Haros, and remand the matter to the trial court with directions to reduce the amount of the default judgment against Haros to $51,000, in accordance with the damages pled in the first amended complaint.
Haros also contends that the trial court erred in entering a default judgment that awarded punitive damages on the grounds that there was insufficient evidence in the record to support an award of punitive damages and that the award is grossly excessive. In light of our modification of the default judgment to the $51,000 in damages pled in the first amended complaint, we need not consider these arguments.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Alonso's brief does not contain a single proper citation to the record. California Rules of Court, rule 8.204(a)(1), provides in relevant part: "(1) Each brief must . . . [¶] (C) Support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears."
We choose to exercise our authority under California Rules of Court, rule 8.204(e)(2)(C), to disregard such noncompliance, not because Alonso's transgressions were minor, but because we do not wish to further delay the proceedings. (See Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 113 [lamenting failure to provide adequate record citations, but choosing to disregard noncompliance so as not to further delay the appeal].)
A. The original complaint
On October 8, 2009, Alonso filed a complaint against several defendants, including San Diego Great Western Mortgage Co., Inc. (Great Western), Christian Escoto, and Haros. The complaint contained five causes of action against these three defendants: fraud, violation of Civil Code section 1632, violation of Civil Code section 51, unfair business practices (Bus. & Prof. Code, § 17200), and negligence.
Haros is the only appellant in this appeal.
Civil Code section 1632 contains requirements pertaining to the translation of contracts negotiated in languages other than English.
Civil Code section 51 (the Unruh Civil Rights Act) prohibits various forms of discrimination in business dealings.
All of the causes of action were premised on actions that the defendants allegedly took in connection with Alonso's refinancing of a loan on real property owned by Alonso and his wife. Alonso alleged that Haros was an officer of Great Western and that Escoto was an employee of Great Western. The bulk of the factual allegations pertained to Escoto's actions related to the refinancing. For example, Alonso alleged that Escoto misrepresented the terms of the loan, falsely inflated Alonso's income on the loan application, and falsely told Alonso and his wife that they could not "stop the transaction" prior to the closing. With respect to Haros, the complaint alleged, "On information and belief, Defendant Haras [sic], used Great Western . . . and its agents to conduct fraudulent transactions, as the ones described here, for his benefit."
In his prayer for relief, Alonso sought an unspecified amount of "[c]ompensatory and general damages" and "[p]unitive and exemplary damages," among other forms of relief. B. The first amended complaint
On June 25, 2010, Alonso filed a first amended complaint that contained ten causes of action against Great Western, Escoto and Haros. In addition to the five causes of action contained in the original complaint, the first amended complaint contained causes of action styled as intentional misrepresentation, negligent misrepresentation, violation of Business and Professions Code section 17500 (false advertising), breach of fiduciary duty, and false promises. In the prayer for relief, the first amended complaint stated that Alonso sought "[d]amages incurred in excess of $51,000," and "[p]unitive and exemplary damages according to proof," among other forms of relief. C. The default
Alonso filed a form request for entry of default against Haros on April 20, 2011. On the form, Alonso requested that the clerk enter a default "[o]n the complaint . . . filed" on "October 8, 2009," the date on which Alonso filed the original complaint. The clerk entered a default that same day, April 20, 2011. D. The May 2012 request for default judgment
On May 3, 2012, Alonso filed a request for a default judgment with respect to Great Western, Escoto, and Haros on the complaint filed "June 25, 2010," the date on which Alonso filed the first amended complaint. E. Alonso's May 2012 documents in support of his request for entry of a default judgment
Alonso filed several documents with his May 3, 2012 request for entry of a default judgment. In a "Summary of the Case," Alonso stated, "Mr. Alonso now seeks damages for the injuries he has suffered as detailed in the enclosed default judgment package and supporting declaration, totaling $51,000.00 (plus attorneys' fees and costs) and an additional $510,000.00 in punitive damages."
Alonso also filed a declaration in support of his request for a default judgment that stated, "I am requesting a judgment of general and special damages, punitive damages and costs based on the malicious actions of Defendants. A true and correct copy of a ledger showing amount due is attached hereto [a]s Exhibit '9'."
Exhibit 9 stated in relevant part: "Demand of First Amended Complaint . . . $51,000.00"; "Statement of Punitive Damages . . . $510,000.00"; "Costs . . . $395.00"; and "Attorneys' Fees . . . $168,300.00."
Also on May 3, 2012, Alonso filed a statement of punitive damages pursuant to section 425.115, in which he stated that he "reserve[d] the right to seek $510,000.00 in punitive damages." F. The clerk's rejection of Alonso's request for entry of a default judgment on May 22, 2012
Section 425.115 provides the manner by which a party may reserve its right to seek punitive damages in a default judgment.
While this appeal was pending, Alonso moved to augment the record with a proof of service for the "Statement of Punitive Damages" dated May 24, 2011. Haros opposed the motion.
The proof of service is not file stamped and Alonso has not shown that the proof of service was ever filed or lodged in the trial court, as is required. (Cal. Rules of Court, 8.155 ["(1) At any time, on motion of a party or its own motion, the reviewing court may order the record augmented to include: [¶] (A) Any document filed or lodged in the case in superior court"].) Accordingly, we deny Alonso's motion to augment.
The clerk rejected the May 3, 2012 request for entry of default judgment on May 22 for various reasons, including the following:
"Unable to locate adequate Proof of Service of a STATEMENT OF DAMAGES upon defendant(s) in compliance with [section] 425.115 in this matter.
"Please submit the statement of damages and proof of service thereon demonstrating that defendant was served **prior** to entry of default. Alternatively, please cite authority that would permit Court to proceed with default judgment where defendant(s) was/were not served with the statutory notice prior to entry of default."
The clerk's notice also stated, "[T]he attached Application for Entry of Judgment (NOT approved as to form (declarations added to file).) . . ." G. The July 2012 request for default judgment
In July 2012, Alonso filed another request for a default judgment with respect to Great Western, Escoto, and Haros on the complaint filed "June 25, 2010," the date on which Alonso filed the first amended complaint. H. The May 2013 default judgment
The trial court entered a default judgment on May 17, 2013 in favor of Alonso against Great Western, Escoto and Haros. The judgment provided that these defendants were required to pay Alonso $561,000 in "[d]amages," $5,205 in attorney fees, and $395 in costs.
The trial court's judgment did not specify the nature of these damages, beyond referring to them as "damages."
I. The February 2017 motion to set aside
In February 2017, Haros filed a motion to set aside the default judgment and for leave to appear and defend. After briefing and a hearing, the trial court denied the motion. J. The appeal
Haros timely appeals from the trial court's order denying his motion to set aside.
III.
DISCUSSION
The default judgment must be reduced to $51,000 in accordance
with the damages pled in the first amended complaint
Haros claims that the trial court erred in refusing to set aside the default judgment for three reasons. First, Haros argues that the court clerk erred in entering a default on the original complaint because that complaint had been superseded by the first amended complaint; he contends that the default judgment based on this erroneously entered default is therefore void. Haros also argues that the default judgment is void because the original complaint did not plead any damages. Finally, Haros argues that both the default and the default judgment are void because Alonso failed to serve a statement of punitive damages prior to entry of the default.
Haros did not raise these arguments in his motion to set aside in the trial court. However, he argues that "[a] default or default judgment that is void on its face . . . may be raised at any time, including for the first time on appeal." Alonso does not contend otherwise. Accordingly, we consider the merits of Haros's arguments.
We outline the law and the standard of review applicable to all three arguments, before addressing each of Haros's contentions. A. Generally applicable law and standard of review
Section 473, subdivision (d) provides in relevant part:
"The court . . . may, on motion of either party after notice to the other party, set aside any void judgment or order."
"A void judgment . . . can be set aside at any time." Deutsche Bank National Trust Co. v. Pyle (2017) 13 Cal.App.5th 513, 526, citing § 473, subd. (d).) In addition, " '[I]ndependent of section 473 . . . , the right exists to have a void judgment vacated and set aside upon motion of the aggrieved party. [Citations.]' " (Levine v. Smith (2006) 145 Cal.App.4th 1131, 1135.)
"A default judgment is void if the trial court lacked jurisdiction over the parties or the subject matter of the complaint or if the complaint failed to 'apprise[ ] the defendant of the nature of the plaintiff's demand,' or 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 (Falahati).)
While void judgments may be set aside, even after becoming final, voidable judgments generally may not be set aside upon finality. In Lee v. An (2008) 168 Cal.App.4th 558, 565 (Lee), in the context of discussing default judgments, the court explained the distinction between void and voidable judgments as follows:
" 'A court can lack fundamental authority over the subject matter, question presented, or party, making its judgment void, or it can merely act in excess of its jurisdiction or defined power, rendering the judgment voidable.' [Citation.] . . . 'The difference between a void judgment and a voidable one is that a party seeking to set aside a voidable judgment or order must act to set aside the order or judgment before the matter becomes final.' [Citation.]" (Id. at pp. 565-566.)
In Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 339-340 (Kabran), the Supreme Court explained that errors that do not implicate a trial court's fundamental jurisdiction ordinarily may not be challenged once the judgment is final:
" 'Even when a court has fundamental jurisdiction, however, the Constitution, a statute, or relevant case law may constrain the court to act only in a particular manner, or subject to certain limitations.' [Citation.] We have described courts that violate procedural requirements, order relief that is unauthorized by statute or common law, or otherwise ' "fail[ ] to conduct [themselves] in the manner prescribed" ' by law as acting ' "in excess of jurisdiction." ' [Citation.] Because a court that acts in excess of jurisdiction still has 'jurisdiction over the subject matter and the parties in the fundamental sense' [citation], any such act is 'valid until set aside, and parties may be precluded from setting it aside by such things as waiver, estoppel, or the passage of time' [citation]. In contrast to errors concerning a court's fundamental jurisdiction, '[e]rrors which are merely in excess of jurisdiction should be challenged directly . . . and are generally not subject to collateral attack once the judgment is final. . . .' "
"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.) B. The fact that Alonso requested entry of default on the original complaint does not render the default judgment void
It is undisputed that the default judgment in this case, entered in 2013, was final at the time Haros sought to set it aside in 2017. Thus, Haros is entitled to relief from the default judgment only if he can establish that it is void.
Haros does not argue otherwise on appeal.
Haros contends that the default judgment is void because, in April 2011, Alonso requested that the clerk enter a default "[o]n the complaint . . . filed" on "October 8, 2009"—the date on which Alonso filed the original complaint—and the clerk entered the default without modification of Alonso's request. Haros argues that the clerk erred in entering the default since a superseded complaint "ceases to have any effect either as a pleading or as a basis for judgment." (State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1131.) We are not persuaded.
Haros does not dispute that he was in default of the operative first amended complaint in April 2011 at the time the clerk entered his default. Section 585, subdivision (b), governing the entry of default, does not require a plaintiff to specify any particular complaint in applying for a default. (See § 585, subd. (b) ["[I]f the defendant has been served, other than by publication, and no answer [or other specified pleading] . . . has been filed with the clerk of the court within the time specified in the summons, or within further time as may be allowed, the clerk, upon written application of the plaintiff, shall enter the default of the defendant"].) In addition, case law provides that a court clerk has a ministerial duty upon a plaintiff's "request," to enter a defendant's default whenever "the statutory conditions appear on the face of the record." (Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4th 868, 899.) Thus, it is not clear that a court clerk errs in performing this ministerial duty in entering a defendant's default where the "face of the record" (ibid., italics added) shows the defendant to be in default with respect to the operative pleading, merely because the plaintiff's request for a default references the date of a superseded complaint.
Neither the parties' briefs nor our independent research has revealed any published authority with respect to this issue.
However, even assuming strictly for the sake of argument that the clerk erred in entering the April 2011 default, Alonso fails to demonstrate that the trial court " 'lack[ed] fundamental authority over the subject matter, question presented, or party,' " when it entered a default judgment in May 2013, such that the default judgment is void. (Lee, supra, 168 Cal.App.4th at p. 565.)
To begin with, in July 2012, Alonso filed a request for a default judgment against Haros on the complaint filed "June 25, 2010"—the date on which Alonso filed the first amended complaint. In addition, Exhibit 9, which Alonso lodged in support of his May 2012 request for entry of a default judgment, also referenced the first amended complaint, stating in relevant part, "Demand of First Amended Complaint . . . $51,000.00." (Italics added.) Thus, the record is clear that Alonso sought entry of a default judgment on the operative first amended complaint. Accordingly, while the court's form judgment does not specify the complaint on which the judgment is based, given that Alonso requested a default judgment on the first amended complaint and indicated that he was seeking damages premised on the first amended complaint, we may reasonably conclude that the default judgment is premised on the first amended complaint.
The form judgment does state that, in entering judgment, "The court considered," and a box checked next to the words "Plaintiff's written declaration (Code Civ. Proc., § 585 (d))."
Moreover, we are aware of no authority, and Haros cites none, for the proposition that a plaintiff's inclusion of the filing date of the original complaint rather than the operative amended complaint in a request for entry of a default deprives the trial court of fundamental jurisdiction over the matter. At most, the trial court may have erred in entering a default judgment based upon a default that the clerk arguably entered in error. However, even assuming that the trial court "violate[d] procedural requirements, order[ed] relief that is unauthorized by statute or common law, or otherwise ' "fail[ed] to conduct [itself] in the manner prescribed" ' by law" (Kabran, supra, 2 Cal.5th at pp. 339-340) in entering a default judgment under these circumstances, such error was merely one of the trial court acting in "excess of [its] jurisdiction," (id. at p. 340) and as such, was correctable only so long as the judgment was not final. (See ibid.) Since, as noted above, it is undisputed that the judgment was final at the time Haros brought the motion to set aside, he may not set it aside on this ground.
With respect to the other categories of void default judgments discussed in Falahati and similar case law, Haros does not contend that either the complaint or the first amended complaint "failed to 'apprise[ ] the defendant of the nature of the plaintiff's demand.' " (Falahati, supra, 127 Cal.App.4th at p. 830.) Nor did any error committed by the clerk result in the trial court entering "a default judgment which exceeds the amount demanded in the complaint." (Ibid.) In part III.D, post, we conclude that the default judgment must be reduced to the amount pled in the first amended complaint.
We emphasize that we do not hold that it is error for a clerk to enter the default of a defendant where the plaintiff requests entry of default on a superseded complaint, if the defendant is in fact in default on the operative complaint.
Haros does not argue that the default judgment is void because the trial court lacked fundamental jurisdiction over the parties. Rather, in discussing the test for determining whether a judgment is "void on its face," (italics added) Haros suggests that a judgment or order is void whenever its invalidity appears from an examination of the record. (Quoting County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1226 (Gorham) ["courts have often also distinguished between a judgment void on its face, i.e., when the defects appear without going outside the record or judgment roll, versus a judgment shown by extrinsic evidence to be invalid"].) While as the Gorham court noted, the test for determining whether a judgment is void on its face turns upon whether the voidness can be determined by an examination of the record without resort to extrinsic evidence (ibid.), it is not the case that all errors that appear on the face of the record render a judgment void. Rather, it is only that narrow category of errors discussed in Falahati, supra, 127 Cal.App.4th at page 830—errors that touch upon the fundamental jurisdiction of the court to act—that render a default judgment void. For the reasons discussed above, there is no such error in this case.
Accordingly, we conclude that any error committed by the clerk in entering the default in this case did not render the ensuing default judgment on the first amended complaint void. C. The default judgment is not void insofar as it awards $51,000 in damages
Haros argues that the default judgment is void because the original complaint did not specify any amount of damages, and, as a result, the trial court lacked jurisdiction to award such damages.
As a general rule, " '[t]he relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint . . . ." (Behm v. Clear View Technologies (2015) 241 Cal.App.4th 1, 17 (Behm).)
In part III.D, post, we discuss one exception to this rule, namely, that a default judgment may award punitive damages properly alleged in a notice served pursuant to section 425.115. (Behm, supra, 241 Cal.App.4th at p. 17.)
We concluded in part III.B, ante, that the default judgment is premised on the operative first amended complaint. As Haros acknowledges, "In the amended complaint, Alonso added a request for damages 'in excess of $51,000.' "
In responding to Haros's argument on appeal, Alonso suggests that the court's default judgment was premised on the original complaint. Alonso argues, "The Court could not have awarded actual damages as none were specified in the complaint, however the Court could award punitive damages pursuant to [section 425.115], as stated in the statement of damages." Alonso also argues, "The Court did not award actual damages, only punitive damages."
For the reasons stated in part III.B, ante, we conclude that the court entered a default judgment on the first amended complaint in accordance with Alonso's July 2012 request and the documents that he filed in support of his May 2012 request for entry of a default judgment, both of which specifically sought a default judgment on the first amended complaint. In addition, as explained in this section, since Alonso's prayer for relief in the first amended complaint sought "[d]amages incurred in excess of $51,000.00," the trial court's default judgment is not void to the extent that it awarded $51,000 in damages. Finally, for the reasons explained in part III.D, post, we may not uphold the trial court's award of damages on the basis of the $510,000 in alleged punitive damages referenced in the statement of damages, because there is no evidence in the record that the statement of damages was served prior to entry of the April 2011 default, as is required.
Accordingly, we conclude that the default judgment is not void insofar as it awards $51,000 in damages. D. The default judgment is void insofar as it awards damages greater that the $51,000 pled in the first amended complaint
Haros argues that the trial court "had no jurisdiction to enter default or award punitive damages in a default judgment when the statement of punitive damages was not served until after the default was entered."
1. Governing law
Section 425.115, subdivision (b) specifies the manner by which a plaintiff may preserve his right to seek punitive damages on a default judgment. The statute provides:
"The plaintiff preserves the right to seek punitive damages pursuant to Section 3294 of the Civil Code[] on a default judgment by serving upon the defendant the following statement, or its substantial equivalent: NOTICE TO __________ (Insert name of defendant or cross-defendant): __________ (Insert name of plaintiff or cross-complainant) reserves the right to seek $__________ (Insert dollar amount) in punitive damages when __________ (Insert name of plaintiff or cross-complainant) seeks a judgment in the suit filed against you. __________ (Insert name of attorney or party appearing in propria persona) __________ (Date)."
Civil Code section 3294 provides in relevant part, "(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant."
Section 425.115, subdivision (f) provides: "The plaintiff shall serve the statement upon the defendant pursuant to this section before a default may be taken, if the motion for default judgment includes a request for punitive damages." (Italics added.) Section 425.115, subdivision (d) specifies, "A plaintiff who serves a statement on the defendant pursuant to this section shall be deemed to have complied with Sections 425.10[] and 580 of this code and Section 3295[] of the Civil Code."
Section 425.10 provides in relevant part:
"(a) A complaint or cross-complaint shall contain . . . :
"[¶] . . . [¶]
"(2) A demand for judgment for the relief to which the pleader claims to be entitled. If the recovery of money or damages is demanded, the amount demanded shall be stated.
(b) Notwithstanding subdivision (a), where an action is brought to recover actual or punitive damages for personal injury or wrongful death, the amount demanded shall not be stated . . . ."
Civil Code section 3295, subdivision (e) provides, "No claim for exemplary damages shall state an amount or amounts."
Section 580, subdivision (a) provides in relevant part:
"(a) The relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint, . . . or in the statement provided for by Section 425.115 . . . ."
In Matera v. McLeod (2006) 145 Cal.App.4th 44 (Matera), the court explained the purpose of statutory restrictions on the entry of a default judgment as follows:
"The purpose of these restrictions on the amounts of damages awarded in a default judgment is to ensure that a defendant is given adequate notice of the amount of the judgment that may be entered against the defendant, as required by due process. [Citation.] 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. [Citations.] A default judgment resulting from the denial of a fair hearing in this manner is void. [Citation.] The California Supreme Court has consistently stated that a default judgment awarding damages greater than the amount demanded in violation of section 580 is beyond the court's jurisdiction. [Citations.]" (Id. at p. 61.)
"[A] default judgment entered with a damages award higher than the amount either enumerated in the complaint or stated in a notice made pursuant to section 425.115 is void." (Behm, supra, 241 Cal.App.4th at p. 9, italics added.)
In Heidary v. Yadollahi (2002) 99 Cal.App.4th 857, 867 (Heidary), the court applied section 425.115, subdivision (f) in concluding that a default judgment was void. The court reasoned in part:
"[I]f punitive damages are to be awarded in a default judgment, the defendant must be notified of the specific amount sought prior to entry of the default. (§ 425.115, subd. (f).) In this case, the Heidarys' statement of damages, specifying for the first time that $500,000 in punitive damages was sought, was not filed until after the default was entered. It was never served on appellants. Consequently, no amount of punitive damages could have been awarded."
2. Application
There is no evidence in the record that a statement of punitive damages was served on Haros prior to the April 2011 entry of default. In footnote 8, ante, we denied Alonso's request to augment the record on appeal with a May 24, 2011 proof of service for a "Statement of Punitive Damages." However, even assuming that we were to grant the request to augment the record, the proof of service indicates that the Statement of Punitive Damages was served in May 2011, which was after entry of the April 20, 2011 default. Since there is no evidence that a Statement of Damages was served "before the defendant's default [was] taken" (Matera, supra, 145 Cal.App.4th at p. 60, italics added), the default judgment violated section 580, and is therefore void to the extent that it awarded damages higher than the amount stated in the first amended complaint. (See Behm, supra, 241 Cal.App.4th at p. 9; Heidary, supra, 99 Cal.App.4th at p. 867.)
"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 amount warranted by the complaint." (Ostling v. Loring (1994) 27 Cal.App.4th 1731, 1743.) Accordingly, we reject Haros's contention that Alonso's failure to properly serve a section 425.115, subdivision (f) statement renders void both the default judgment and the underlying default. (See Behm, supra, 241 Cal.App.4th at pp. 13, 17 [where plaintiff's "statement of damages [pursuant to section 425.115, subd. (f)] was not served within a reasonable period of time before the default was taken," trial court acted properly in entering order that effectively "modified the default judgment by striking the excess amount of damages"]; see also Becker v. S.P.V. Const. Co., Inc. (1980) 27 Cal.3d 489, 495 [concluding that trial court erred in awarding damages in excess of the $20,000 alleged in complaint, rejecting defendants' contention that "the entire judgment [is] void," and remanding the matter to trial court "with directions to modify the judgment by striking the award of damages in excess of $20,000"].)
Haros's contention appears to be premised on his argument that the court erred in awarding any damages and that the default judgment is void in its entirety. As discussed in part III.C, ante, we conclude that the default judgment is not void insofar as it awards $51,000 in damages pled in the first amended complaint. --------
In Airs Aromatics, LLC v. CBL Data Recovery Technologies, Inc. (2018) 23 Cal.App.5th 1013, this court recently observed 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.' " (Id. at p. 1024.) We assume that we maintain a similar discretion to permit Alonso to choose between either: 1) accepting a default judgment reduced to the amount of damages properly pled in the first amended complaint or; 2) accepting a vacatur of both the default judgment in its entirety, and the underlying default, and allowing Alonso to serve a proper statement of damages under section 425.115, subdivision (f) prior to seeking a default. Alonso has not requested that we exercise our assumed discretion to order the latter option, and we decline to exercise any such discretion in this case. Accordingly, we conclude that the proper remedy is to order the reduction of the default judgment against Haros to $51,000 in accordance with the damages pled in the first amended complaint.
IV.
DISPOSITION
The order denying the motion to set aside the default judgment is reversed. The matter is remanded to the trial court with directions to reduce the amount of the default judgment entered against Haros to $51,000. In the interest of justice, the parties are to bear their own costs on appeal.
AARON, J. WE CONCUR: BENKE, Acting P. J. HUFFMAN, J.