Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. SC089724, Jacqueline Connor, Judge.
Rees Law Firm and Robert A. Rees for Plaintiff, Cross-Defendant, and Appellant.
Law Office of Kent M. Bridwell and Kent M. Bridwell for Defendant, Cross-Complainant, and Respondent.
TURNER, P. J.
I. INTRODUCTION
Plaintiff, Val. P. Shulman, M.D., appeals from a post-judgment order denying an ex parte application for a protective order that he not be required to appear for an order of examination or provide confidential financial information. The protective order concerned a default judgment in the amount for $268,128 plus costs of $2,828 against Dr. Shulman and his professional corporation (herein collectively referred to as “plaintiffs”) on a cross-complaint filed by defendant, Sousanna Lachtchouk. We affirm.
II. BACKGROUND
This case involves a controversy between plaintiffs and defendant over an oral agreement to pay for medical assistance and services provided by her. Defendant is a nurse practitioner. The complaint alleged that as part of the oral agreement: defendant agreed to provide medical examinations, assistance, and consultation to plaintiffs’ patients; defendant would be compensated; defendant would reimburse a portion of the office expenses; and defendant also agreed not to provide services to any other medical facility or doctor other than Dr. Shulman and his professional corporation. Defendant allegedly obtained information from plaintiffs’ patients and utilized it for her own personal use. The complaint contained claims for: contract breach; unjust enrichment; declaratory and injunctive relief; defamation; and implied covenant breach.
On July 3, 2006 defendant filed a cross-complaint against plaintiffs asserting a number of legal theories including: unfair competition; unfair business practices; unjust enrichment; Civil Code sections 2223 and 2224 violations; contract and economic advantage interference, conversion; and privacy violation. Defendant alleged, among other things, that plaintiffs had charged her with variable monthly fees for the use of this office space. According to defendant, the charges were unreasonable, unfair, excessive, and far beyond the reasonable market value of the services. She also alleged Dr. Shulman: made false and disparaging remarks about her to patients; attempted to take patients away who had made appointments for her services; turned patients away; came into the patient’s room during examinations to disparage defendant; and opened defendant’s mail. Defendant further alleged that plaintiffs fraudulently submitted bills to Medi-Cal, Medicare, and other insurance carriers for services that were performed under their own provider numbers when she actually did the work and retained fees they collected from the carriers for services provided by her. The cross-complaint sought restitution and disgorgement of all moneys obtained and damages under defendant’s legal theories. The cross-complaint did not specify any damages amount.
On September 20, 2006, the initial status conference was held and plaintiffs’ counsel failed to appear. On November 2, 2006, plaintiffs’ default was set aside. On December 7, 2006, another case management conference was held. On January 25, 2007, yet another status case management conference was held and the trial court ordered plaintiffs to answer interrogatories and produce documents. Further, plaintiffs were ordered to make 12 deponents available for deposition. All depositions were ordered to be completed by April 12, 2007. On March 12, 2007, defendant served an extensive statement of damages on plaintiffs’ counsel. Defendant’s statement of damages expressly identified her: general damages ($4 million); special damages ($8.5 million); restitution ($5 million); punitive damages ($5 million); costs of suit ($1 million); and prejudgment interest ($1 million). On April 10, 2007, terminating sanctions were entered against plaintiffs. Monetary sanctions in the sum of $7,700 were imposed on plaintiffs and their counsel. On November 13, 2007, default judgment in the amount of $270,954 was entered against plaintiffs on the cross-complaint. On August 15, 2008, the trial court entered an order directing Dr. Shulman to appear for an examination to furnish information to aid in the enforcement of the judgment against him and his professional corporation.
On October 8, 2008, Dr. Shulman filed an ex parte application for a protective order pursuant to Code of Civil Procedure section 708.200 that he was not required to attend an oral examination scheduled for October 9, 2008. He argued that he should not be ordered to appear because he had filed a separate action to determine whether the judgment in this action is void under Code of Civil Procedure section 580. Two grounds were asserted. To begin with, Dr. Shulman argued the judgment exceeds the amount prayed for in the cross-complaint. Further, he argued he was abandoned by his prior attorney On October 9, 2008, the trial court denied the ex parte motion and Dr. Shulman filed the notice of appeal. The order denying the protective order is appealable as an order after judgment. (Code Civ. Proc., § 904.1, subd. (a)(2); Melbostad v. Fisher (2008) 165 Cal.App.4th 987, 998; Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 75-77.)
III. DISCUSSION
First, Dr. Shulman claims that the trial court abused its discretion in denying a Code of Civil Procedure section 708.200 protective order because the judgment was void as a matter of law pursuant to Code of Civil Procedure section 580. In terms of whether the trial court abused its discretion, we have not been provided with the reporter’s transcript of the hearing where the ex parte protective order motion was denied—a point expressly raised by defendant. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296; In re Kathy P. (1979) 25 Cal.3d 91, 102.) In numerous situations, appellate courts have refused to reach the merits of an appellant’s claims because no reporter’s transcript of a pertinent proceeding or a suitable substitute was provided. (Walker v. Superior Court (1991) 53 Cal.3d 257, 273-274 [transfer order]; Maria P. v. Riles, supra, 43 Cal.3d at pp. 1295-1296 [attorney fee motion hearing]; Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575 (lead opn. of Grodin, J.) [new trial motion hearing]; In re Kathy P., supra, 25 Cal.3d at p. 102 [hearing to determine whether counsel was waived and the minor consented to informal adjudication]; Boeken v. Philip Morris Inc. (2005) 127 Cal.App.4th 1640, 1672 [transcript of judge’s ruling on an instruction request]; Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447 [trial transcript when attorney fees sought]; Estate of Fain (1999) 75 Cal.App.4th 973, 992 [surcharge hearing]; Hodges v. Mark (1996) 49 Cal.App.4th 651, 657 [nonsuit motion where trial transcript not provided]; Interinsurance Exchange v. Collins (1994)30 Cal.App.4th 1445, 1448 [monetary sanctions hearing]; Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532 [reporter’s transcript fails to reflect content of special instructions]; Buckhart v. San Francisco Residential Rent etc. Bd. (1988) 197 Cal.App.3d 1032, 1036 [hearing on Code Civ. Proc., § 1094.5 petition]; Sui v. Landi (1985) 163 Cal.App.3d 383, 385-386 [motion to dissolve preliminary injunction hearing]; Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 713-714 [demurrer hearing]; Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 71-73 [transcript of argument to the jury]; Ehman v. Moore (1963) 221 Cal.App.2d 460, 462 [failure to secure reporter’s transcript or settled statement as to offers of proof]; Wetsel v. Garibaldi (1958) 159 Cal.App.2d 4, 10 [order confirming arbitration award].)
Code of Civil Procedure section 708.200 provides, “In any proceeding under this article, the court may, on motion of the person to be examined or on its own motion, make such protective orders as justice may require.”
Second, Dr. Shulman argues the $268,128 judgment is void because the cross-complaint does not specify a damage amount. The judgment is not entirely void. When a complaint does not specify an amount of damages, it may be implied from the allegations of the operative pleading that the recoverable amount does not exceed the jurisdictional minimum of $25,000. (Greenup v. Rodman (1986) 42 Cal.3d 822, 829-830; Becker v. S.P.V. Construction Co. (1980) 27 Cal.3d 489, 494.) Here, the face of the complaint states, “UNLIMITED JURISDICTION.” An unlimited jurisdiction case is one when a minimum amount sought is $25,000. (Code Civ. Proc., § 86.) Thus, the cross-complaint is not completely void. No doubt, if plaintiff is correct, the judgment is void insofar as it permits any damage recovery above the $25,000 figure. (Greenup v. Rodman, supra, 42 Cal.3d at p. 829 [“While an award in excess of $15,000 would be improper, a judgment in that amount was within the jurisdiction of the court”]; Julius Schifaugh IV Consulting Service, Inc. v. Avaris Capital, Inc. (2008) 164 Cal.App.4th 1393, 1396 [“Accordingly, the amount of damages awarded in excess of the demand was outside of the trial court’s jurisdiction under Code of Civil Procedure section 580, and the original default judgment was void as to any amount over that”]; Janssen v. Luu (1997) 57 Cal.App.4th 272, 279 [“[T]he judgment is void only to the extent it exceeds the amount claimed in the complaint”].) In cases where a judgment exceeds the amount pled in the operative complaint, appellate courts have reduced the judgment to the allowable maximum. (Becker v. S.P.V. Construction Co., supra, 27 Cal.3d at p. 495 [“Since the challenged judgment only partially exceeded the court’s jurisdiction, the trial court could have modified the judgment to save that portion which was not void”]; Ostling v. Loring (1994) 27 Cal.App.4th 1731, 1749-1751.) But no decision holds that a post-judgment protective order request must be granted when only a portion of the judgment is void.
But even if the cross-complaint fails to comply with Code of Civil Procedure section 580, subdivision (a), Dr. Shulman has failed to address the issue of the enforceability of the April 10, 2007, monetary sanctions order. The trial court imposed $7,700 in monetary sanctions against plaintiffs and their counsel. Dr. Shulman’s motion challenging the order to appear for examination does not mention the April 10, 2007, $7,700 monetary sanction order. Dr. Shulman presented no evidence the April 10, 2007, $7,700 monetary sanction order had been paid. Thus, even if the judgment is void in whole or in part, the trial court could deny the protective order motion because the monetary sanctions remained unpaid. Our affirmance of the order under review does not validate what may be a potentially partially void judgment.
Code of Civil Procedure section 580, subdivision (a) states: “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; but in any other case, the court may grant the plaintiff any relief consistent with the case made by the complaint and embraced within the issue. The court may impose liability, regardless of whether the theory upon which liability is sought to be imposed involves legal or equitable principles.”
VI. DISPOSITION
The order under review is affirmed. Each side is to bear its own costs on appeal.
We concur: ARMSTRONG, J., MOSK, J.