Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. Nos. HG06261686, HG05230854
Reardon, J.
Matthew Taylor (Taylor) appeals from a judgment entered on consolidated actions ordering him to remove an encroaching garage and fence from his neighbor’s property and to pay damages and costs. Taylor challenges the default judgment entered against him in his neighbor’s trespass and nuisance action (case No. HG05230854), arguing primarily that the damages awarded are in excess of that demanded in the complaint and that surveyor’s fees are not recoverable as costs. Taylor challenges the summary judgment entered against his own quiet title claim (case No. HG06261686), arguing that triable issues of material fact preclude summary judgment. Taylor also argues that his neighbor lacked standing and that indispensable parties were not joined. We reverse the trial court’s award of damages and surveyor’s costs, but otherwise affirm the judgment.
I. Factual and Procedural Background
The proceedings leading to the trial court’s entry of judgment are lengthy, but here we briefly summarize only the facts and proceedings necessary to an understanding of the contentions addressed in this opinion. Taylor’s statement of facts did not assist us in this regard, as it is more than 20 pages in length and includes irrelevant information and argument. The parenthetical arguments made by Taylor only in his statement of facts, which are made without discussion or citation to authority, are deemed waived. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [“It is not [the court’s] place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.”].)
Geronima Belen (Belen) owns real property situated in Alameda County, commonly known as 30971 Vallejo Street and 3995, 3955 and 3969 Smith Street, Union City, California, as further described in the applicable deeds (Belen’s Property). Belen’s Property adjoins real property owned by Taylor, commonly known as 30947 Vallejo Street, Union City, California (Taylor’s Property), as further described in the applicable deeds. In January 2005, after Taylor built a new fence and expanded a garage, Belen commissioned a property survey. The survey shows that Taylor’s southern fence encroaches approximately 19.20 feet onto Belen’s Property, and Taylor’s western fence encroaches approximately 15.53 feet onto Belen’s Property. The survey also shows that the south side of Taylor’s garage extends approximately 5.33 feet onto Belen’s Property.
One of the parcels is owned by Belen as trustee of the Geronima S. Belen-Bautista Revocable Trust, of which she is the sole trustee and beneficiary.
Taylor contended below that the boundaries of his property are more accurately “described by the present fences surrounding th[e] property currently.”
On September 1, 2005, Belen filed a complaint for permanent injunction and damages (Trespass Action), naming “MATTHEW TAYLOR, an individual” as defendant. (Case No. HG05230854.) Belen stated trespass and nuisance causes of action against Taylor, based on her allegations that Taylor’s fence and garage encroached on her property without consent. Belen prayed for a permanent injunction compelling removal of the encroachments, for “general damages . . . according to proof,” for “exemplary and punitive damages,” for “costs of suit incurred,” and for “such other and further relief as the Court deems proper.”
Taylor failed to respond to Belen’s complaint and his default was entered on November 8, 2005. After his default was entered in Belen’s Trespass Action, but before default judgment had been entered, Taylor filed a complaint to quiet title (Quiet Title Action), naming “GENORIMA [sic] BELEN and Does 1 through 100” as defendants. (Case No. HG06261686.) In his Quiet Title Action, Taylor alleged that he in fact held title to the disputed property, “[t]he boundaries of which were establish[ed] by boundary agreement between plaintiff[’s] predecessors in title and predecessors of defendants . . . which establish the property boundary lines” where the fences stand.
After the trial court consolidated the two actions, Belen moved for summary judgment, arguing in relevant part that Taylor’s Quiet Title Action had no merit because Taylor could not show the existence of an agreed boundary that contradicted the boundaries established by deed. Taylor opposed Belen’s motion, arguing that she was not entitled to summary judgment because she was “only one of several owners” of the Belen Property and that “relevant facts about boundaries are in dispute.” In a supplemental opposition, Taylor contended for the first time that he had obtained title to the disputed property “by adverse possession, by estoppel or the like . . . .” Taylor also argued that the garage was protected from demolition because it was part of a Union City historic district.
This point had not been raised in Taylor’s complaint in the Quiet Title Action. Likewise, Taylor had not raised adverse possession or prescriptive easement in his complaint to quiet title.
The trial court granted Belen’s motion for summary judgment with respect to the Quiet Title Action. The trial court concluded that Taylor had not shown the existence of a triable issue of material fact with respect to the agreed boundary claim on which his Quiet Title Action was based. In its summary judgment ruling, the trial court also noted that “Taylor’s assertions regarding the extent to which Belen had a 50 [percent] or 100 [percent] interest in her property at the time she filed her complaint are not material to this cause of action. Belen is not the party who filed the quiet title action, and it is unnecessary for her to be a 100 [percent] owner of her property in order to demonstrate the legal deficiencies in Taylor’s quiet title action. In any event, Belen introduced evidence that she has been the sole owner of her property at least since June 7, 2006 [citation], and Taylor has not disputed this in his supplemental opposition.” The trial court also noted that “it need not and does not address Taylor’s assertion that Union City ordinances or other authority protect his garage from demolition or whether the garage encroachment is a prescriptive use, since neither of those is an element of his quiet title cause of action.”
On June 8, 2007, after a prove-up hearing in connection with the default in the Trespass Action, the trial court entered a single judgment on the consolidated actions. With respect to the Trespass Action, the trial court awarded Belen $12,600 in damages and $3,093 in costs. These costs included $2,239.50 for preparation of the property survey. The trial court also ordered removal of Taylor’s fence and garage from Belen’s Property and permanently enjoined Taylor from continuing to trespass thereon. With respect to the Quiet Title Action, the trial court entered judgment in Belen’s favor pursuant to the order granting summary judgment. Taylor filed a timely notice of appeal.
II. Discussion
Taylor’s appeal from the judgment on the consolidated actions challenges both the default judgment on the Trespass Action and the summary judgment on the Quiet Title Action. We separately address his arguments with respect to each below.
A. Trespass Action
With respect to the default judgment entered on Belen’s Trespass Action, Taylor argues: (1) Belen lacked standing and failed to join indispensable parties; (2) the default judgment was unsupported by substantial evidence; (3) the trial court’s award of damages was void; and (4) the trial court’s award of $2,239.50 for survey costs was improper.
1. Standing and Indispensable Parties
Taylor first contends that the default judgment should be vacated because: (a) Belen lacked standing to sue or (b) Belen failed to join indispensable parties. Assuming these arguments are properly raised on appeal from a default judgment, we disagree.
Taylor takes issue with the fact that some of Belen’s Property is held in the name of the Geronima S. Belen-Bautista Revocable Trust, but that Belen sued in her name only, rather than as trustee. Belen did not lack standing to bring the Trespass Action. A trustee may maintain an action in his or her own name, without mentioning the trust or his or her status as trustee. (Hassoldt v. Patrick Media Group, Inc. (2000) 84 Cal.App.4th 153, 171 [“[T]he subject property is owned by the Hassoldts as trustees of the Yankee Trust, and . . . the Hassoldts are the beneficiaries of such trust. Under the circumstances, the Hassoldts could maintain an action in their own name, i.e., without mentioning the trust.”].) Cases holding that parties other than a trustee lack standing to sue on behalf of the trust are irrelevant. (See, e.g., Pillsbury v. Karmgard (1994) 22 Cal.App.4th 743, 753 [“ ‘the beneficiary of a trust generally is not the real party in interest and may not sue in the name of the trust’ ”]; Saks v. Damon Raike & Co. (1992) 7 Cal.App.4th 419, 427 [trust beneficiaries generally lack standing to sue on behalf of trust]; Powers v. Ashton (1975) 45 Cal.App.3d 783 [“administrator” of trusts is not real party in interest].)
Taylor’s related argument—that Belen failed to join indispensable parties—is similarly mistaken. Taylor points to deeds and claims that Glenn Belen, Elizabeth Belen, and Eriko Taylor, who are mentioned therein as having past interests in relevant parcels, are indispensable parties pursuant to Code of Civil Procedure section 389.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
Section 389, subdivisions (a) and (b) provide: “(a) A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. [¶] (b) If a person as described in paragraph (1) or (2) of subdivision (a) cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed without prejudice, the absent person being thus regarded as indispensable. The factors to be considered by the court include: (1) to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person’s absence will be adequate; (4) whether the plaintiff or cross-complainant will have an adequate remedy if the action is dismissed for nonjoinder.”
Indispensability is determined by considering the status of the parties at the time relief is entered, or the issue of indispensability is raised, rather than at the time suit is filed. (County of Imperial v. Superior Court (2007) 152 Cal.App.4th 13, 36-37.) Although Glenn Belen and Elizabeth Belen may have had an interest in some of the Belen Property at the time Belen filed her Trespass Action, the record shows that both quitclaimed their interests in the subject property to Belen on June 7, 2006. There is no evidence that Glenn Belen or Elizabeth Belen maintained any interest at the time default judgment was entered on June 8, 2007. With respect to Eriko Taylor, the record shows only that she had an interest in Taylor’s Property, but that her interest was relinquished to Taylor on December 22, 2003. None of these parties is an indispensable party because the relief granted to Belen does not “injure or affect” any of their interests. (Cf. Liang v. San Francisco Residential Rent Stabilization & Arbitration Bd. (2004) 124 Cal.App.4th 775, 778 [landlord was indispensable party to tenant’s challenge of rent stabilization board’s denial of rent reduction]; Sierra Club, Inc. v. California Coastal Com. (1979) 95 Cal.App.3d 495, 501 [developer was indispensable party to plaintiff’s challenge of commission’s decision permitting developer’s project].)
2. Default Judgment—Overall Considerations
Next, Taylor argues that the default judgment is unsupported by substantial evidence. Taylor makes numerous evidentiary objections to the evidence Belen presented at the prove-up hearing and argues both that (a) the evidence is insufficient to support all the requisite elements of Belen’s causes of action and (b) the evidence is insufficient to support the award of damages.
Taylor ignores that “[t]he entry of a default terminates a defendant’s rights to take any further affirmative steps in the litigation until either its default is set aside or a default judgment is entered.” (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385.) A defaulted defendant has no standing to participate in the prove-up hearing, or to complain of the evidence introduced therein, other than to complain that the damages awarded are excessive. (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1303; Ostling v. Loring (1994) 27 Cal.App.4th 1731, 1745; Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc., supra, at pp. 385-386; Uva v. Evans (1978) 83 Cal.App.3d 356, 362-364.) Generally, the sufficiency of the evidence cannot be reviewed on an appeal from a default judgment. (Corona v. Lundigan (1984) 158 Cal.App.3d 764, 767.)
Taylor cites authority that is inapplicable because the judgments appealed from were not default judgments. (See, e.g., Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160 [consolidated appeals from judgments entered after court trial].)
To the extent that Taylor argues that Belen’s evidence was insufficient to support the requisite elements of her causes of action, his argument is not well taken. Once a default is entered, the well-pleaded allegations of the complaint are deemed admitted. (Molen v. Friedman (1998) 64 Cal.App.4th 1149, 1153; Vasey v. California Dance Co. (1977) 70 Cal.App.3d 742, 749.) Thus, when a cause of action is stated in the complaint, at the prove-up hearing the plaintiff merely needs to introduce evidence establishing a prima facie case for damages. (Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361-362.) To the extent that Taylor argues that Belen’s evidence was insufficient to establish a prima facie case for damages, we do not consider this argument because the trial court’s award of damages is reversed for another reason, discussed below.
Taylor does not argue that Belen’s complaint failed to state a cause of action.
3. Damages
Taylor argues that the default judgment is void at least to the extent it awards damages in excess of the amount demanded in Belen’s complaint. We agree. “The relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint, in the statement required by Section 425.11, or in the statement provided for by Section 425.115 . . . .” (§ 580, subd. (a).) In civil cases not based on personal injury or wrongful death, “[i]t is well settled that a trial court may not grant a default judgment which exceeds the amount demanded in the complaint.” (Levine v. Smith (2006) 145 Cal.App.4th 1131, 1133, 1136 [$2.5 million default judgment is void when complaint prayed only for damages “in an amount according to proof”]; accord, Greenup v. Rodman (1986) 42 Cal.3d 822, 826 (Greenup); Becker v. S.P.V. Construction Co. (1980) 27 Cal.3d 489, 493-494 (Becker).)
Due process generally requires notice to the defaulting defendant of both the type and amount of relief sought. (Finney v. Gomez (2003) 111 Cal.App.4th 527, 534-537.) A judgment awarding greater relief than that demanded in the complaint is void, as it is beyond the court’s jurisdiction. (Schwab v. Rondel Homes, Inc. (1991) 53 Cal.3d 428, 432-433 (Schwab); Greenup, supra, 42 Cal.3d at p. 826; Finney v. Gomez, supra,at p. 534 & fn. 8.) Belen’s complaint prays only “[f]or general damages from Defendant according to proof; [and] [¶] 3. For exemplary and punitive damages . . . .” Belen’s complaint does not otherwise allege a specific amount of damages. We conclude that all $12,600 of the damages awarded by the trial court are in excess of the damages demanded by Belen and, accordingly, void.
(a) Is Due Process Satisfied by Mere Specification of the Type of Relief Requested?
We reject Belen’s argument that a complaint need only specify the type of relief requested and not the amount of damages sought. To support this argument, Belen relies on In re Marriage of Lippel (1990) 51 Cal.3d 1160 (Lippel), Cassel v. Sullivan, Roche & Johnson (1999) 76 Cal.App.4th 1157 (Cassel), and In re Marriage of Andresen (1994) 28 Cal.App.4th 873 (Andresen).
In Lippel, the Supreme Court vacated a default judgment awarding child support when the wife, in her standard form dissolution petition, had not checked the appropriate box. (Lippel, supra, 51 Cal.3d at pp. 1163-1164, 1173.) The Supreme Court reasoned that the default judgment violated section 580 and deprived the husband of his statutory and constitutional right to notice of the claims to be litigated against him. (Lippel, at p. 1167.) Of course, the court did not reach the issue of whether an award exceeding the amount of child support requested would be void, because the petition did not request child support at all. (Id. at p. 1160.) In dictum, the court noted that checking the appropriate boxes on the dissolution petition “informs and puts the respondent on notice of what specific relief the petitioner is, or is not, seeking.” (Id. at pp. 1169-1170.)
In Andresen, the Fifth District Court of Appeal affirmed a default judgment providing for division of a couple’s community assets and ordering an equalizing payment. (Andresen, supra, 28 Cal.App.4th at pp. 877, 879-880.) The defaulting husband contended that, by checking the appropriate boxes on the standard form dissolution petition, and attaching a declaration listing marital assets without alleging their value, his wife had failed to give him adequate notice of the “specific kind and amount of relief” she obtained by default judgment. (Id. at p. 877.) The court reasoned that “due process is satisfied and sufficient notice is given for section 580 purposes in marital dissolution actions by the petitioner’s act of checking the boxes and inserting the information called for on the standard form dissolution petition . . . . Although we acknowledge the Supreme Court had no need to address the point, we find nothing in the language of Lippel which compels a conclusion that the amount of the relief requested, as contrasted with the type of the relief requested, must be inserted in the relevant form if the form does not itself expressly demand such data.” (Id. at p. 879, italics added.) The Andresen court reasoned that the defaulting husband had received adequate notice because the relevant property and liabilities were identified and, in dissolution proceedings, “the trial court . . . must value and divide the community estate of the parties equally.” (Id. at pp. 879-880.)
In Cassel, this District applied similar reasoning to an action seeking to account for and value a former partner’s partnership interest, and held that in such an action “the complaint need only specify the type of relief requested, and not the specific dollar amount sought.” (Cassel, supra, 76 Cal.App.4th at pp. 1163-1164.) The Cassel court premised its holding on the fact that there was “no danger that defaulting [partnership] defendants will be taken by surprise by judgments entered against them, because, like spouses facing property division, they will be in possession of the essential information necessary to calculate their potential exposure.” (Id. at p. 1164; see also id. at p. 1163 [noting that defaulting partnership was in possession of both partnership’s financial information and partnership agreement, which set out method for calculating withdrawing partner’s interest].)
Belen ignores that an encroachment dispute is fundamentally different from marriage dissolution or partnership dissolution. As noted by the Cassel court, “[t]he outcome presaged by Lippel and decided by Andresen makes sense in the marital dissolution arena, where the parties are both aware of the property subject to division, the responding party knows that the petitioner seeks a division of that property, and the court is statutorily bound to value and divide the community property equally. (Fam. Code, § 2550.)” (Cassel, supra, 76 Cal.App.4th at p. 1162.) A similar logic applied in partnership dissolution proceedings because “the remaining partners were in possession of information at least equal to . . . that possessed by Cassel regarding the partnership’s financial status from which Cassel’s interest would be calculated.” (Id. at p. 1163.)
In this case, although Taylor does not argue that he lacked notice of the property at issue, he was without notice of the damages Belen sought for his encroachment. That Taylor had at some unspecified date offered Belen $12,000 to buy the disputed property does not show that he had any notice, before his default, of the specific amount of damages, based on rental value, Belen was ultimately awarded. This is not a case involving a standard form pleading, or in which a precise and uniform formula applies for calculating damages. Even if Taylor were to obtain an independent appraisal of the disputed property’s value, Taylor would still lack notice of how Belen valued the property and the precise measure of damages she sought.
Belen has not cited any case, and we know of none, that extends the rationale of Andresen and Cassel to a trespass dispute between neighbors. In the absence of such authority, we decline to extend the Andresen-Cassel rationale beyond the bounds of its logic. (See Finney v. Gomez, supra, 111 Cal.App.4th 527, 537 [refusing to extend Lippel, Andresen and Cassel to action for partition, contribution, and breach of contract]; Becker, supra, 27 Cal.3d at pp. 493-494 [“[T]he language of section 580 does not distinguish between the type and the amount of relief sought. The plain meaning of the prohibition against relief ‘exceeding’ that demanded in the complaint encompasses both of these considerations.”].)
(b) In the Absence of an Allegation of a Specific Amount of Damages, Can a Trial Court Award Damages in the Amount of the Jurisdictional Minimum?
We also disagree with Belen’s contention that “damages can be awarded [via default judgment] up to the minimum jurisdictional requirement if no amount is specified in the complaint.” Belen’s reliance on Greenup, supra, 42 Cal.3d 822, is misplaced because Greenup is distinguishable.
In Greenup, the trial court entered a default judgment, in an amount exceeding that requested in the complaint’s prayer, after striking the defendant’s answer as a discovery sanction. (Greenup, supra, 42 Cal.3d at p. 824.) The plaintiff’s prayer requested $100,000 in punitive damages and other damages “ ‘subject to proof at time of trial.’ ” (Id. at p. 825.) However, each of the plaintiff’s causes of action concluded with the allegation that she suffered damage “ ‘in an amount that exceeds the jurisdictional requirements of this court.’ ” (Id. at p. 830.) After concluding that section 580 applies to defaults entered as a discovery sanction, the court noted that Becker, supra, 27 Cal.3d at page 494 held that “[t]he allegations of a complaint may cure a defective prayer for damages.” (Greenup, supra, 42 Cal.3d at p. 829.) Because the jurisdictional minimum for the amount in controversy was $15,000, the Supreme Court held that “[b]y her allegations, plaintiff thus gave sufficient notice to defendants that she claimed at least $15,000 in compensatory damages” and a judgment in that amount was within the jurisdiction of the court. (Id. at p. 830, italics added.)
Because the allegations of Belen’s complaint do not provide any notice beyond that provided in her prayer, the holding of Greenup does not apply. (Parish v. Peters (1991) 1 Cal.App.4th 202, 216.) Belen, in her Trespass Action, only alleged that she had been damaged in an amount “subject to proof at trial.” In effect, Belen asks us to follow Morgan v. Southern Cal. Transit Dist. (1987) 192 Cal.App.3d 976 (Morgan), which has since been disapproved by our Supreme Court. (Schwab, supra, 53 Cal.3d at p. 434.) In Morgan, the Second District Court of Appeal took a broad view of Greenup—concluding that “the usual remedy [for failure to give notice of the amount of damages sought] would be to reduce the default judgment to the amount demanded in the complaint or, if no amount is demanded, to the minimum jurisdiction of the superior court.” (Morgan, supra, 192 Cal.App.3d at p. 987, italics added.)
In Schwab, the plaintiffs in a personal injury case relied on Morgan to argue that despite their failure to serve a statement of damages, as required by section 425.11, the defaulting defendants were on notice of damages in an amount at least equal to the jurisdictional minimum. (Schwab, supra, 53 Cal.3d at pp. 430, 433.) The Supreme Court disagreed, reasoning that the holding of Greenup was limited to situations in which the plaintiff pleads general damages “specifically stated to be in excess of the court’s jurisdictional requirements.” (Schwab, at p. 433, italics added.) There was no such allegation in the complaint at issue in Schwab, and instead the plaintiffs had prayed for $500,000 per plaintiff in punitive damages and statutory damages according to proof, but no less than $250. (Id. at p. 435.)
Section 425.11 currently provides, in relevant part: “(b) When a complaint is filed in an action to recover damages for personal injury or wrongful death, the defendant may at any time request a statement setting forth the nature and amount of damages being sought. . . . [¶] (c) If no request is made for the statement . . . the plaintiff shall serve the statement on the defendant before a default may be taken.” (Italics added.) Former section 425.11 was at issue in Schwab, which provided, in relevant part: “ ‘When a complaint or cross-complaint is filed in an action in the superior court to recover damages for personal injury or wrongful death, the party against whom the action is brought may at any time request a statement setting forth the nature and amount of damages sought. . . . [¶] If no request is made for such a statement setting forth the nature and amount of damages being sought, the plaintiff shall give notice to the defendant of the amount of special and general damages sought to be recovered (1) before a default may be taken; or (2) in the event an answer is filed, at least 60 days prior to the date set for trial.’ ” (Schwab, supra, 53 Cal.3d at p. 432, fn. 4.)
The court rejected the plaintiffs’ constructive notice theory “[b]ecause plaintiffs’ claim for punitive damages had already established the superior court’s jurisdiction, [and] neither a layperson nor an experienced attorney could be presumed to know the amount of general damages plaintiffs were seeking in this case.” (Schwab, supra, 53 Cal.3d at p. 434.) The court also reasoned that plaintiffs’ constructive notice theory was in conflict with the plain language of former section 425.11, which required a defendant be given notice of “the amount of special and general damages sought to be recovered.” (Schwab, at p. 434.) Accordingly, the court affirmed the trial court’s vacation of the default and “disapprove[d] Morgan, supra, 192 Cal.App.3d 976, to the extent that it suggests that a default judgment may be entered in the absence of notice in the complaint or a ‘statement of damages’ of the special and general damages sought.” (Schwab, supra, 53 Cal.3d at p. 434.)
Although in Schwab the Supreme Court relied in part on former section 425.11, which does not apply in this case, that distinction is not determinative. Rather, we agree with the Third District that “[t]o pass constitutional muster, the complaint must either allege a specific dollar amount of damages in the body or prayer or at the very least allege the boilerplate damages are ‘in an amount that exceeds the jurisdictional requirements’ of the superior court.” (Parish v. Peters, supra, 1 Cal.App.4th at p. 216 [considering whether allegations of form personal injury complaint that prayed for damages according to proof could serve as equivalent of statement of damages pursuant to section 425.11].) Were we to adopt the rule advocated by Belen, we would effectively hold “that defendants are chargeable with constructive notice of the jurisdictional minimum of damages in all cases, an assertion expressly rejected by the Schwab court.” (Parish v. Peters, supra, at p. 217; see also Janssen v. Luu (1997) 57 Cal.App.4th 272, 278-279 [§ 580 is not satisfied by constructive notice provided by jurisdictional limits of municipal court].) Accordingly, we reject Belen’s argument that the damages awarded should be upheld because they do not exceed the jurisdictional minimum of the superior court.
(c) Is the Entire Default Judgment Void?
Having determined that the default judgment is void in part, we address the proper remedy. Taylor argues that the entire default judgment, including the award of injunctive relief, is voided by Belen’s failure to serve a statement of damages. Taylor’s citation to Schwab is unavailing. In Schwab, as noted above, the plaintiffs in a personal injury action failed to serve the defendant with a statement of damages before entry of default, as required by section 425.11. (Schwab, supra, 53 Cal.3d at p. 431.) The Supreme Court affirmed the trial court’s order setting aside the default itself because, pursuant to the plain language of section 425.11, “[a] defendant [in a personal injury action] is entitled to actual notice of the liability to which he or she may be subjected, a reasonable period of time before default may be entered.” (Schwab, supra, 53 Cal.3d at p. 435, italics added.) Section 425.11 is inapplicable in this case because Belen did not seek damages for personal injury or wrongful death. Thus, no statement of damages was required. Nor can we analogize to Schwab and hold the default itself should be set aside because section 580, unlike section 425.11, does not require that a plaintiff give notice of the amount of damages sought “before a default may be taken,” but only mandates that “[t]he relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint . . . .” Furthermore, Taylor, unlike the appellants in Schwab, has not challenged the trial court’s ruling on his motion to set aside the default.
“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, supra, 27 Cal.App.4th at p. 1743; accord, Becker, supra, 27 Cal.3d at pp. 493, 495 [rejecting argument that entire default judgment was void because damages and attorney fees in excess of that demanded in complaint were awarded].) Accordingly, we conclude that the default judgment is not void in its entirety but that the award of $12,600 in damages must be stricken from the judgment.
We reject Taylor’s related argument that “Belen’s requests for injunctive relief were sufficiently vague and non-informative as to void the entire default judgment.” Taylor points to no authority supporting his argument that an unidentified level of specificity is required to support injunctive relief on default judgment. Furthermore, Belen’s prayer for “a permanent injunction compelling [Taylor] to remove the encroachment described [in the complaint] from Plaintiff’s property and to restore [Belen’s] property to its condition prior to the encroachment” is far from vague.
4. Costs
Taylor challenges the trial court’s award of costs in the amount of $2,239.50 for a property survey conducted before Belen filed her Trespass Action. Taylor contends the surveyor’s fee is not recoverable as costs, pursuant to section 1033.5, subdivision (b)(2), because it constitutes an investigation expense.
“ ‘[W]hether the criteria for an award of attorney fees and costs . . . have been satisfied’ ” is a question of law that is reviewed de novo. (Baker-Hoey v. Lockheed Martin Corp. (2003) 111 Cal.App.4th 592, 596.) To the extent an award of costs is entrusted to the trial court’s discretion, the abuse of discretion standard of review is applied. (Id. at p. 597 & fn. 4.) “Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (§ 1032, subd. (b).) Section 1033.5 enumerates certain items allowable as costs to a prevailing party, such as filing fees and fees of expert witnesses ordered by the court. (§ 1033.5, subd. (a).) Other items are expressly “not allowable,” such as fees of experts not ordered by the court and investigation expenses incurred in preparing the case for trial. (§ 1033.5, subd. (b).) Expenses that are neither allowable, nor prohibited by section 1033.5 “may be allowed or denied in the court’s discretion.” (§ 1033.5, subd. (c)(4); accord, Science Applications Internat. Corp. v. Superior Court (1995) 39 Cal.App.4th 1095, 1103.)
Belen contends that survey fees are not expressly mentioned in the statute and, thus, the trial court properly exercised its discretion to allow them, pursuant to section 1033.5, subdivision (c)(4). We agree with Taylor that the cost of the survey was part of the cost of investigating the case, and not recoverable. (§ 1033.5, subd. (b)(2).) Alternatively, the cost of the survey can be viewed as an expert witness expense not ordered by the court, which is also unrecoverable. (§ 1033.5, subd. (b)(1).) Therefore, we conclude that the surveyor’s fee, in the amount of $2,239.50, is not recoverable as a matter of law and that the judgment must be modified to eliminate this portion of the costs award.
Belen contends, in the alternative, that the surveyor’s fees are recoverable as damages. This argument does not aid Belen because, as discussed above, any award of damages was void because in excess of that demanded in the complaint. (§ 580, subd. (a).)
B. Quiet Title Action
With respect to the summary judgment entered in Taylor’s Quiet Title Action, Taylor argues: (1) Belen lacked standing; (2) the trial court improperly granted summary judgment despite triable issues of material fact; and (3) Taylor was improperly foreclosed from offering objections to the form of the judgment.
Section 437c, subdivision (c), requires a trial court to grant summary judgment “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” “On appeal, we review the trial court’s decision to grant or deny the summary judgment motion de novo, on the basis of an examination of the evidence before the trial court and our independent determination of its effect as a matter of law.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.)
1. Standing
Taylor contends that Belen was not entitled to summary judgment in the Quiet Title Action because she “appeared in Taylor’s quiet title action in an individual capacity, rather than that of trustee.” This argument is easily dismissed. First, Taylor cites no authority that suggests a plaintiff may escape the results of a summary judgment entered against him by claiming that he, as the plaintiff, brought his action against the wrong defending party. The real party in interest rule requires only that “[e]very action must be prosecuted in the name of the real party in interest . . . .” (§ 367, italics added.) The authority cited by Taylor in his opening brief stands only for the proposition that parties other than a trustee generally lack standing to bring a claim on behalf of a trust. (Saks v. Damon Raike & Co., supra, 7 Cal.App.4th 419; Powers v. Ashton, supra, 45 Cal.App.3d 783.)
We reject Taylor’s argument that “[e]ven if the summary judgment in favor of Belen as an individual should be sustained, Taylor should be allowed to proceed against the trust by targeting Belen as trustee, along with the remaining Doe defendants.” Taylor waived this argument by raising it only in his reply brief, and not in his opening brief. (Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4; Tilton v. Reclamation Dist. No. 800 (2006) 142 Cal.App.4th 848, 864, fn. 12.) Furthermore, as discussed below, Taylor has not shown the existence of a triable issue of material fact on his agreed boundary theory, which was the only theory pleaded in his Quiet Title Action.
Taylor’s citation to Galdjie v. Darwish (2003) 113 Cal.App.4th 1331, is also unavailing. In Galdjie, the Second District Court of Appeal held that defendants, who were both trustees and beneficiaries of a trust, could not avoid a judgment for specific performance entered against them in their individual capacities because “their signatures as individuals on the title deed as required by the judgment . . . is sufficient to convey good title from the Trust.” (Id. at p. 1350.) The fact that Taylor brought his Quiet Title Action against Belen in her individual capacity, does not defeat summary judgment.
2. Triable Issues of Material Fact
Taylor does not challenge the encroachment shown by Belen’s survey and deed evidence, but instead argues that the trial court improperly granted summary judgment when the evidence showed a triable issue of fact on his entitlement “to claim the land through adverse possession or prescriptive easement, theories which overlap the agreed boundaries theory.” However, in his Quiet Title Action, Taylor only alleged that he had obtained title to the disputed property by boundary agreement. Nowhere in his complaint did Taylor allege that he sought title to the property by adverse possession, or a right to use the property by prescriptive easement. Pleading title by agreed boundary did not put Belen on notice that Taylor also claimed adverse possession or prescriptive easement. (See Zachery v. McWilliams (1972) 28 Cal.App.3d 57, 62 [“The doctrine of agreed boundary is incompatible with the requirement of hostility necessary to establish title by adverse possession.”]; Janes v. LeDeit (1964) 228 Cal.App.2d 474, 488-489.)
To establish title by agreed boundary, “ ‘[t]he doctrine requires that there be [1] an uncertainty as to the true boundary line, [2] an agreement between the coterminous owners fixing the line, and [3] acceptance and acquiescence in the line so fixed for a period equal to the statute of limitations or under such circumstances that substantial loss would be caused by a change of its position.’ [Citation.]” (Bryant v. Blevins (1994) 9 Cal.4th 47, 55.)
Taylor’s counsel conceded as much at the summary judgment hearing: “THE COURT: . . . Now, you may have a prescriptive easement that the portion of the neighbor’s land that’s covered by the encroachment that’s been there since 1914, but that’s not involved in this case unless I missed something in a big way. [¶] MR. FARIA: No, I don’t think it is.”
Taylor could not defeat Belen’s summary judgment motion by attempting to create an issue of fact on matters outside the pleadings. (Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98-99, fn. 4; Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342-1343 [“ ‘ “The [papers] filed in response to a defendant’s motion for summary judgment . . . are not a substitute for an amendment to the pleadings.” [Citations.]’ [Citations.]”].) Likewise, Taylor’s arguments regarding adverse possession and prescriptive easement cannot save his Quiet Title Action on appeal. (Ibid.) For these reasons, we do not further consider Taylor’s prescriptive easement and adverse possession arguments.
Furthermore, we need not resolve Taylor’s argument that the affidavits of Donald Brune, Anthony Annunzio, Elizabeth Hernandez, and Berry Hernandez were improperly excluded. The affidavits are essentially irrelevant because Taylor has not challenged the trial court’s conclusion with respect to the agreed boundary doctrine, and his other theories were not pleaded in the Quiet Title Action. Even if we were to interpret Taylor’s appeal as challenging the trial court’s ruling on the agreed boundary doctrine, the affidavits of Donald Brune, Anthony Annunzio, Elizabeth Hernandez, and Berry Hernandez do not suggest that prior owners were uncertain about the true property boundary lines and accordingly agreed to fix the boundary in a manner inconsistent with legal records. Without uncertainty about the location of the true boundary, and an agreement resolving that uncertainty, Taylor cannot establish the required elements of the agreed boundary doctrine. (Bryant v. Blevins, supra, 9 Cal.4th at pp. 54-55.) Taylor’s counsel conceded as much at the summary judgment hearing: “THE COURT: . . . I’m going to grant summary judgment against you today, because you haven’t given me any information at all that might justify a ruling other than that Ms. Belen owns that property that is described on not only the deeds, but this map. [¶] MR. FARIA: Yeah. I don’t know that there’s anything to the contrary.” Taylor has not demonstrated the existence of a triable issue of material fact.
3. Objection to Form of Judgment
Taylor argues that the judgment, which ordered Taylor to remove his garage from Belen’s Property, is defective for failing to take into account the effect of a Union City historical district ordinance. Taylor ignores that the injunctive relief was entered in connection with the Trespass Action, in which he defaulted. Because a defaulted defendant has no standing to raise an affirmative defense or present evidence at the prove-up hearing (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc., supra, 155 Cal.App.3d at pp. 385-386), we reject Taylor’s plea that we “instruct the trial court to conduct a hearing on whether removal would compel Taylor to violate a Union City ordinance and, if so, whether a more appropriate remedy should be fashioned.”
III. Disposition
That portion of the judgment awarding Belen $12,600 in damages is stricken, and the judgment is modified to award Belen a total of $853.50 in trial court costs. As so modified, the judgment is affirmed. The parties shall bear their own costs on appeal.
We concur: Ruvolo, P.J., Rivera, J.