Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. PC20020477, PC20030047
RAYE, Acting P. J.
Appellants Janice and Garry Gates installed three gates over their neighbors’ easement and have been involved in civil and criminal litigation with them and their predecessors for over 20 years (aka The Gates v. the gates). Following appellants’ repeated failures to produce videos, invoices, and other documentary evidence during discovery, the trial court granted the neighbors’ request for terminating sanctions, dismissed appellants’ complaint, struck appellants’ answers to the neighbors’ complaint and cross-complaint, entered appellants’ default to both the complaint and cross-complaint, and entered judgment for the neighbors on the complaint and cross-complaint. The neighbors concede the trial court lacked jurisdiction to award damages because the neighbors failed to allege the specific amount of damages in their complaint and cross-complaint. (Code Civ. Proc., § 580.) We vacate the award of damages and remand to permit the neighbors to file an amended complaint and/or cross-complaint. We affirm in all other respects because, on this record, we cannot say the trial court abused its discretion.
We refer to respondents collectively as “neighbors” in this opinion.
FACTS
Appellants, both of whom have graduated from law school but are not licensed to practice law, are appearing in propria persona as they have done sporadically during various iterations of this litigation. They urge us to consider but a few facts that occurred during a brief slice of the life of this lawsuit, arguing, with some justification, that the merits of the underlying litigation are not at issue in an appeal of terminating sanctions for abuse of the discovery process. While we agree that their behavior during discovery is the focus of the appeal, we cannot ignore the broader context in which the trial court exercised its discretion to impose such a fatal sanction. The salient facts can be succinctly stated.
Appellants need not be troubled by any limitations imposed on an appellant’s index. They have provided more than an adequate record, when coupled with that provided by the neighbors, for us to fully consider each and every issue raised in their briefs.
Appellants own 38 acres of land in El Dorado County and lots of horses. Two roads over their property provide access to many of their neighbors’ homes. Appellants filed at least 17 lawsuits against their neighbors’ predecessors. In the culmination of the first round of litigation involving the neighbors’ predecessors, the court found that the predecessors had an easement over appellants’ property, but appellants could maintain gates at the north and south easterly termini of the easement as long as they were in good repair and could be easily opened and closed. The court also allowed them to maintain one interior gate only where an enclosure for the horses could not be conveniently located off the easement. As a result of that litigation, the neighbors must stop and open and close three gates as they pass over the easement on appellants’ property.
Apparently since that time, the horses and the neighbors have competed for the roads, thereby jeopardizing the safety of both. The neighbors complain that the horses attempt to escape when they open the gates. They dart into the road and cannot be seen at night, they damage the neighbors’ property when they do escape, they charge toward the neighbors while the neighbors are using the easement, and horse manure fills the roadways. The neighbors unsuccessfully tried to negotiate a settlement with appellants so as to protect their safety as well as that of the horses. But appellants sought an order of contempt against many of the neighbors for failing to keep the gates closed. The court found that nothing in the earlier judgment required the neighbors to keep the gates closed and the contempt proceedings were dismissed with prejudice.
Appellants posted signs on the easement stating that permission to use the roadway could be revoked at any time. The neighbors allege that these signs reduced the value of their property and constituted slander of title.
Finally, in criminal proceedings against Janice Gates, the court ordered her to fence her horses to keep them off of the roads. She was convicted of two counts of trespass and placed on probation for four years on condition that she attend anger management counseling for six months.
In August 2002 appellants filed the instant lawsuit against two of the neighbors, the Arredondos and the Larsens, seeking to enjoin the neighbors from damaging their chattels and/or persons or the easement. The Arredondos and the Larsens filed a cross-complaint, and the rest of the neighbors joined in a complaint against appellants. Both the complaint and the cross-complaint alleged that the existing gates no longer served a legitimate interest, they had been used to harass the neighbors and eliminate the easement, and that all the neighbors’ proposals to alleviate this burden had been rejected by appellants. They further alleged that appellants had engaged in repeated acts of harassment, trespass, and violent confrontations with the neighbors and fed their horses on the easement next to the gates, thereby creating a danger to the horses as well as the users of the easement. Based on these allegations, the neighbors included causes of action for declaratory relief, nuisance, trespass, and slander of title. All the actions were consolidated.
Respondent neighbors are Daniel and Sylvia Arredondo, Daniel and Tammy Larsen, Sammy Chandler, Robert and Merri Van Linburgh, Kim and Lisa Hoaas, Irvine and Debra Oliver, and Bill and Diane Michaels.
DISCUSSION
I. LEGAL AND PROCEDURAL BACKGROUND
Review of an Order Granting Terminating Sanctions
“Judges have broad powers and responsibilities to determine what measures and procedures are appropriate,” and the discovery statutes, in particular, vest a wide discretion in the trial court. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431-432.) Thus, a “court’s decision to impose a particular sanction is ‘subject to reversal only for manifest abuse exceeding the bounds of reason.’” (Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1183 (Electronic Funds), quoting Kuhns v. State of California (1992) 8 Cal.App.4th 982, 988.) “We view the entire record in the light most favorable to the court’s ruling, and draw all reasonable inferences in support of it. [Citation.] We also defer to the trial court’s credibility determinations.” (Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 765 (Slesinger).)
Appellants urge us to independently review the judgment because, they assert, the court made “errors of law on undisputed facts.” While we agree that their threshold claims involving due process and res judicata involve questions of law requiring de novo review, the ultimate issue is whether the trial court properly granted terminating sanctions. Thus the dispositive and over-arching issue presented by this appeal is subject to the more deferential abuse of discretion standard of review.
Appellants point out, however, that the trial court’s discretion is not unlimited. Terminating sanctions abort a lawsuit and deprive the offending party of a trial on the merits. They argue that discovery sanctions must be appropriate to the dereliction, should not give the aggrieved party more than what it is entitled to, and should not be used to punish the offending party. (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 488; Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1217 (Karlsson).) Appellants insist that the type of conduct justifying the termination of a lawsuit must be far more flagrant and sustained than their conduct here, which, from their point of view, was excusable given the withdrawal of their attorney on the eve of trial.
Appellants also blame the neighbors for delays in discovery predating the problems that arose during their scheduled depositions. Whatever early tussles were involved in the discovery process are not at issue here. The trial court was at liberty to reject appellants’ argument that the last minute discovery frenzy justified their repeated refusal to produce the requested documents and videos. We defer to the trial court’s assessment of credibility and reject any insinuation the neighbors should be estopped to complain about appellants’ obstreperous behavior because of scheduling difficulties early in the litigation.
We agree with appellants that the facts described in many of the cases cited by the neighbors are far more egregious than we have here. For example, in Slesinger, the plaintiff sued Walt Disney for royalties under a licensing agreement to exploit the Winnie the Pooh series of children’s stories. (Slesinger, supra, 155 Cal.App.4th at p. 740.) The plaintiff hired a private investigator to surreptitiously obtain Disney documents. The investigator broke into Disney office buildings, scavenged through trash cans, and trespassed onto a secure facility of a company Disney had contracted to destroy its confidential documents. (Ibid.) The investigator took documents belonging to Disney, including documents marked privileged and confidential. (Ibid.) The plaintiff concealed the investigator’s activities from Disney and from the court through most of the litigation. (Ibid.) When exposed, the court granted a terminating sanction and dismissed the lawsuit. (Ibid.)
Similarly, in Del Junco v. Hufnagel (2007) 150 Cal.App.4th 789 (Del Junco), Dr. Hufnagel, whose medical license had been revoked, created a counterfeit Web site mimicking Dr. Del Junco’s Web site and including links directing the viewer to contact her. (Id. at p. 792.) During discovery, the counterfeiter, appearing in propria persona before hiring counsel, filed 140 pages that purportedly responded to a request for a preliminary injunction and masqueraded as a cross-complaint. According to the court, “These documents had no semblance of proper pleadings and did not conform to court rules.” (Id. at p. 794.) Hufnagel withdrew her cross-complaint. (Ibid.)
Ultimately, the trial court granted Dr. Del Junco’s request for sanctions against Hufnagel for filing voluminous papers that were not in proper form and did not conform to court rules, for filing a cross-complaint without permission of the court, for filing an improper opposition to the preliminary injunction, and for filing a frivolous motion to dismiss. Hufnagel never paid the sanctions and continued to operate the counterfeit Web site in violation of the injunction. (Del Junco, supra, 150 Cal.App.4th at pp. 795-796.) She did not respond to discovery requests, nor did her lawyer return telephone calls. She failed to attend a case management conference and to file a conference statement. The trial court granted Dr. Del Junco’s request to strike the answer and to enter Hufnagel’s default. (Id. at pp. 796-797.)
It is true, as appellants suggest, that the conduct in these cases was far more egregious than their failings. But the facts do not dilute the standard of review. The question is not whether we would have terminated appellants’ lawsuit, but whether the trial court abused its discretion by doing so. We must turn to the record and carefully examine the factual support for the trial court’s harsh response to appellants’ recalcitrance, mindful that a trial court properly imposes terminating sanctions where obstructionist tactics are “willful” and “willful” does not “necessarily include a wrongful intention to disobey discovery rules.” (Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 227-229.)
Evidence Appellants Willfully Obstructed Discovery
A case management order appointed the neighbors’ attorney as the discovery coordinator. In that capacity, he attempted to set appellants’ depositions on April 4 and 22, May 9 and 19, June 2, July 10, and August 19 of 2003. Appellants admitted that they sought to avoid having their depositions taken in order to obtain a tactical advantage. After they failed to respond to two notices setting their depositions, the neighbors served them with a third notice and request for production of listed documents. Through October of 2003, appellants did comply with some of the neighbors’ discovery requests, but only after the neighbors filed a motion to compel. By November, discovery had disintegrated. In mid-November, their lawyer discovered information for the first time that precluded him under the California Rules of Professional Conduct from representing appellants in a trial of the matter. He informed appellants of his concerns about pursuing the case to trial. At the request of a settlement judge, however, he continued to represent them through settlement negotiations and even drafted a settlement agreement. Appellants withdrew from settlement negotiations.
The third notice of deposition was for November 12, 2003. At this time, the district attorney was prosecuting Mrs. Gates for trespass, but she did not seek a protective order prior to her deposition. Instead, she refused to answer any questions at her deposition, asserting a blanket privilege under the Fifth Amendment, even when assured the neighbors would avoid any questions related to the criminal proceedings. Mr. Gates asserted a blanket spousal testimonial privilege. Appellants did not turn over any of the documents requested in the deposition notice.
On December 3, 2003, the neighbors brought their second motion to compel. Appellants then agreed to produce the documents in their possession and to answer the questions that did not touch upon any matters relating to the criminal action at a rescheduled deposition on December 12. Yet again on December 12, Mrs. Gates refused to answer questions despite her attorney’s admonition to do so. But she did agree to provide the noticed documents before the next rescheduled deposition on December 23, 2003.
Appellants thereafter instructed their lawyer to file a motion to disqualify the trial judge in spite of the fact the motion was untimely. The lawyer filed the motion but advised them of his intent to withdraw. Appellants demanded that he prepare and provide to them a list of the documents they were required to produce. He reminded them that the noticed documents were solely within their possession and control and had to be produced at the deposition. They did not produce the documents at the next deposition.
On December 23 Mr. Gates did not appear for his scheduled deposition and Mrs. Gates did not produce the noticed documents. Their attorney reported that he was not in possession of the documents. The depositions were rescheduled yet again.
A hearing on the neighbors’ motion to compel was held on December 29. The court directed the parties to provide a workable solution to allow discovery to proceed on issues that did not involve the criminal proceedings. The parties complied. Based on their representation, the court continued the motion to compel and warned appellants that trial would go forward on January 12, 2004, and it would consider imposing terminating sanctions unless they complied with their agreement and/or failed to meet and confer as set forth in the conference order.
Appellants would not allow their attorney to withdraw and urged him to postpone the depositions set for December 31. Mrs. Gates did appear at the deposition but refused to go forward. She did not disclose that she had the noticed documents with her. Appellants did not file the documents necessary to prepare for the trial as required by the discovery orders.
Because of appellants’ failure to comply with discovery requests and to prepare for trial, the neighbors sought terminating sanctions and asked the court to dismiss appellants’ complaint against the Larsens and Arredondos with prejudice, to enter their default as to the neighbors’ complaint and cross-complaint, and to award the neighbors damages as well as declaratory and injunctive relief for trespass, nuisance, and slander of title based upon allegations that appellants were using the gates in a manner that unreasonably burdened the neighbors’ easement rights. On March 30, 2004, the court granted the motions for terminating sanctions.
II. In Light of the Evidence of APPELLANTS’ Willful Obstruction of Discovery, Did the Trial Court Abuse Its Discretion by Granting the Motion for Terminating Sanctions?
Appellants insist they were improperly punished for their lawyer’s misfeasance. They maintain they did not thwart discovery, but relied on their lawyer to inform them what documents they were required to produce and to produce the documents and their notes he had in his possession at the appropriate time and place. As hard-working senior citizens, they contend they attempted to comply with a confusing discovery process that accelerated on the eve of trial. They assert the trial court improperly granted the terminating sanctions in the absence of a prior order compelling them to produce the documents and following a prior adjudication of their right to maintain the gates. Moreover, according to appellants, the dismissal of their claims constitutes a deprivation of due process, and the judgment was in excess of the court’s jurisdiction and void. Although we will address each of these preliminary questions, none of them resolves the fundamental issue presented -- did the trial court abuse its discretion?
Prior Court Order
Appellants argue that pursuant to Code of Civil Procedure section 2025, subdivisions (j)(3) and (o), they were entitled to notice of a hearing, a hearing, and an order compelling them to comply with discovery requests as a prerequisite to the imposition of terminating sanctions. The same argument has been repeatedly rejected.
Violation of a discovery order is not a prerequisite to sanctions. (Karlsson, supra, 140 Cal.App.4th at pp. 1214-1215.) Sanctions may be imposed in the absence of a prior order to compel compliance with discovery if there was a willful failure to comply. (Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1544-1549.) “[A] court’s exercise of inherent power to dismiss for misconduct need not be preceded by violation of a court order. The essential requirement is to calibrate the sanction to the wrong. Whether the misconduct violates a court order is relevant to the exercise of inherent power, but it does not define the boundary of the power.” (Slesinger, supra, 155 Cal.App.4th at p. 763.) In each of these cases, the Courts of Appeal upheld the imposition of a discovery sanction even though there had been no prior court order compelling compliance. While we will consider the absence of an order a factor in assessing the court’s exercise of discretion, we too find that the absence alone did not preclude the court from exercising its discretion to grant terminating sanctions.
Res Judicata
Appellants insist that the judgment entered in the first round of litigation against the neighbors’ predecessors gave them the right to install and maintain three gates across the easement in perpetuity. Based on their skewed interpretation of the prior judgment, they argue that the neighbors’ claims are barred by the venerable doctrine of res judicata. Not so.
The threshold inquiry in deciding whether a subsequent claim is barred by a prior judgment is determining whether the issues are identical. (Rodgers v. Sargent Controls & Aerospace (2006) 136 Cal.App.4th 82, 90.) They are not. Based on the facts and circumstances surrounding the use of the easement in 1987, the court allowed appellants to maintain three unlocked gates on condition that they were kept in good repair and the interior gate could not be conveniently located off the easement.
Over 20 years later, the facts and circumstances have changed considerably. The owner of a servient estate subject to an easement of egress and ingress may use an easement only to the extent that it does not unreasonably interfere with the easement’s purpose and the dominant estate’s easement rights. (Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697, 702-703.) Over time, the neighbors alleged, appellants deprived them of their easement rights by repeated acts of harassment, including patrolling the easement, harassing them, and violently confronting them and their invitees; erecting a third gate to further harass the neighbors and obstruct the easement; and maintaining signs that misrepresented that the use of the easement was by permission only.
Thus, the issue raised in this case is whether appellants used the gates in a manner that violated the rule that the servient estate must not unreasonably burden the rights of the dominant estate. The evidence consisted of historical facts that simply had not occurred at the time of the first lawsuit. Because the issues are not identical, res judicata does not bar the subsequent litigation.
Due Process, Jurisdiction, Etc.
Appellants also make a varied assortment of grand-sounding allegations with little or no support. They contend they were denied due process of law and the judgment is “in excess of jurisdiction and void.” The thrust of their arguments is difficult, if not impossible, to decipher but appears to be a mere restatement of other arguments.
If their due process claim is nothing more than a reiteration of their notion that it was unfair to terminate their lawsuit in the absence of a court order compelling them to comply with discovery, then we have previously rejected the claim. If, on the other hand, their due process claim relates to their notion they were deprived of a fair hearing, we reject the argument because the court warned them it would consider terminating sanctions, vacated the trial date, and gave them three weeks to file opposition to the motion for terminating sanctions -- ample time to hire a new lawyer to brief the issue. Thus, they were given the opportunity to fully brief the propriety of terminating sanctions. They failed to object to the briefing schedule, to request additional time, or to take exception to the court’s decision to take the case under submission without oral argument. Either way, they have not articulated a viable due process claim.
We will address the damage award in part III of this opinion. If appellants’ contention that the judgment is void is predicated on the same argument that the damage award is defective, we reject the argument because the damage award is severable from the remainder of the judgment and does not render the entire judgment void.
Court’s Responsibility to Control Discovery
Appellants attribute the delays in discovery not only to the neighbors, but to the court as well. They contend that although it delegated its responsibility to monitor discovery to the neighbors’ lawyer by assigning him the task of scheduling the depositions, the delegation did not abrogate the court’s responsibility to eliminate delay and compel the litigants to prepare and resolve all litigation. (Gov. Code, § 68607; Tliche v. Van Quathem (1998) 66 Cal.App.4th 1054, 1060 (Tliche).)
In the same vein, appellants further insist the court bore responsibility for enforcing the discovery cut-off provisions set forth in section 2024, subdivision (a) of the Code of Civil Procedure. The section they cite was repealed in 2005. Moreover, even under that statute, appellants were obligated to move to enforce their right to a cut-off of discovery and the trial court had discretion to allow discovery closer to trial. (Former § 2024, subd. (e).) Neither Government Code section 68607 nor Tliche have any application here because they involved special provisions applicable only to fast track cases and local rules of court. Appellants’ litigation was anything but fast; it was not a fast track case and did not implicate the unique responsibilities foisted on trial courts under local rules of court designed to expedite a limited number of specially designated cases.
Having rejected what appellants perceived as impediments to the terminating sanctions, we consider whether the trial court abused its discretion by dismissing the lawsuit for their willful failure to comply with discovery. The case is indeed troubling for a number of reasons. While there is substantial evidence to support the trial court’s implied finding that appellants’ conduct in repeatedly postponing their depositions and refusing to produce documents was willful and obstreperous, it was not of the egregious character found in most of the cases upholding terminating sanctions. In those cases, evidence was lost, the damage to the litigation was permanent, or there was clearly no other sanction to assure the integrity of the proceedings. Here the documentary evidence remained available, lesser sanctions had not been tried, and appellants’ lawyer had withdrawn on the eve of trial.
Yet the standard of review dictates deference. We are not at liberty to superimpose our judgment on the trial court and “[u]nder well-established rules of appellate procedure, we presume the court’s order is correct and indulge all presumptions and intendments in its favor on matters as to which the record is silent.” (Karlsson, supra, 140 Cal.App.4th at p. 1217.) Viewing the record from such a deferential vantage point, we cannot say the court’s exercise of discretion was “arbitrary, capricious, or whimsical.” (Calvert Fire Ins. Co. v. Cropper (1983) 141 Cal.App.3d 901, 904.)
There certainly was ample evidence that appellants’ failure to produce the videos, invoices, and other documents was willful. They repeatedly promised and failed to produce the noticed documents that were exclusively within their possession and control. Because they continued to withhold these documents, their depositions had to be rescheduled three times. The court could reasonably infer that Mrs. Gates deliberately concealed the documents at the final deposition on December 31, 2003, to prevent the trial from going forward. Mr. Gates, who was never deposed, failed to appear at the scheduled depositions on December 23, 2003, and December 31, 2003. Appellants violated two discovery orders by failing to prepare for trial. Based on the pattern of obstructionist behavior, the court concluded appellants engaged in obstructionist tactics to delay the trial.
Appellants repeat many of the same excuses they offered to the trial court, namely, Mr. Gates’s health, the breakdown in their relationship with their lawyer, the frantic escalation of discovery right before trial, and their good faith intention to pursue their claims. But there was abundant evidence of a deliberate pattern of behavior justifying the court’s rejection of these excuses. Indeed, the record contains evidence of more than 20 years of litigious behavior that undermines appellants’ cooperative façade.
There were the 17 lawsuits filed and never prosecuted. There was the contempt proceeding appellants lost and the criminal proceeding finding Mrs. Gates guilty of trespass. There was the declaration by their lawyer that a trial on the merits would violate the rules of professional ethics. There was appellants’ admission they sought to delay their depositions to gain a tactical advantage. There was their demand to attempt to remove the trial judge, an attempt that was blatantly untimely. There was the surprise refusal to answer any questions during a deposition while the criminal proceedings were pending even though they failed to seek a protective order or to notify the neighbors in advance of their intention to invoke their respective privileges, and despite their neighbors’ assurances that they would not be asked any questions involving those proceedings. There was, in a nutshell, a continuing abuse of the judicial process under the guise of civil litigation.
In the face of more than 20 years of litigation over the easement and the gates, one glaring fact may have been enough for the trial court. Mrs. Gates had already been ordered to fence the horses as a result of the criminal proceedings. Thus, the ongoing litigation over the use and maintenance of the gates was, in essence, moot and the court could legitimately infer that appellants’ deliberate obstruction of the discovery process was nothing more than continued harassment of their neighbors in a vain attempt to prolong a meritless lawsuit. We need not determine whether as a matter of law appellants’ claims were rendered moot by the criminal proceedings because we conclude the trial court did not abuse its discretion in terminating the lawsuit in the context of the entire history of appellants’ behavior as the obstreperous owners of the servient tenement.
III. DAMAGES
The neighbors concede that the judgment for damages must be reversed because they failed to allege a specific amount of damages as required by section 580 of the Code of Civil Procedure. As a result, the neighbors agree with appellants that the trial court exceeded its jurisdiction by awarding damages. They urge us to exclude the damage award and affirm the default judgment in all other respects. We agree the improper damage award does not void the judgment.
Electronic Funds, supra, 134 Cal.App.4th 1161 provides a fitting exemplar. As happened here, the trial court struck the defendants’ answer to the complaint, struck the cross-complaints, and ordered the defendants’ default entered. (Id. at p. 1172.) In the complaint, the plaintiffs sought damages “‘in an amount in excess of $50,000’” (id. at p. 1168) and the court awarded compensatory damages of $8,040,272.19 and punitive damages of $16 million (id. at p. 1172). The Court of Appeal affirmed the terminating sanctions because as here, the trial court had not “‘exceed[ed] the bounds of reason’” and because it too found that terminating sanctions do not violate a defendant’s right to due process. (Id. at p. 1183, quoting Kuhns v. State of California (1992) 8 Cal.App.4th 982, 988.) The appellate court, however, also vacated the award of compensatory and punitive damages because the compensatory damages surpassed the $50,000 specified in the complaint. (Electronic Funds, at pp. 1167, 1185.) The court remanded the case to the trial court for a new damages prove-up hearing limited to a maximum of $50,000. (Id. at p. 1185.) The court’s erroneous award of damages in excess of the amount properly pled did not void the judgment.
In our case, the trial court also awarded damages disallowed by Code of Civil Procedure section 580 and both sides agree those damages must be vacated. But this defect does not mean, as appellants insist, that the entire judgment is void. As in Electronic Funds, we vacate the damages and leave the rest of the judgment intact. In this case, unlike Electronic Funds, we cannot remand for a new damages prove-up hearing because the neighbors utterly failed to state an amount of damages in their complaint and thereby did not put appellants on notice as to their maximum exposure in damages.
The neighbors, however, can accept the default judgment without damages or file an amended complaint and/or cross-complaint to state the full amount of damages they seek. (Greenup v. Rodman (1986) 42 Cal.3d 822, 830; Julius Schifaugh IV Consulting Services, Inc. v. Avaris Capital, Inc. (2008) 164 Cal.App.4th 1393, 1397.) If the neighbors file an amended complaint and/or cross-complaint, “the default will be vacated, entitling [appellants] to either attack the pleadings, or answer the amended complaint.” (Electronic Funds, supra, 134 Cal.App.4th at p. 1177.)
IV. LEFTOVERS
Sprinkled throughout appellants’ briefs are allegations amounting to nothing more than a disguised challenge to the sufficiency of the evidence produced at the prove-up hearing and supporting the default judgment. They cite no authority permitting them to challenge the evidence introduced at the prove-up hearing. Indeed, such a challenge is not allowed. (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1302-1303.)
DISPOSITION
The judgment is modified to vacate the award of damages. Alternatively, the neighbors may file an amended complaint and/or cross-complaint to allege a specific amount of damages. If an amended complaint and/or cross-complaint is filed, the default judgment will be vacated, the default set aside, and appellants will be permitted to file a responsive pleading. The judgment is affirmed in all other respects. The neighbors are awarded costs on appeal.
We concur: HULL, J., BUTZ, J.