Eustice v. Eustice , 242 Cal. App. 4th 1291 ( 2015 )

Filed 12/10/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re the Marriage of ANNETTE and
JOSEPH EUSTICE.
ANNETTE J. EUSTICE,
E061140
Respondent,
(Super.Ct.No. IND098305)
v.
OPINION
JOSEPH A. EUSTICE,
Appellant.
APPEAL from the Superior Court of Riverside County. Gregory J. Olson,
Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Law Offices of Richard S. Trugman and Richard S. Trugman for Appellant.
Richard C. Houghton for Respondent.
I
INTRODUCTION
Joseph A. Eustice appeals a default judgment disposing of reserved issues in a
marital dissolution proceeding. Joseph contends the judgment is void because it exceeds
1
the relief his former wife, Annette J. Eustice, requested in her petition for marital
dissolution. Joseph also contends the trial court abused its discretion in striking his
response to the dissolution petition, leading to entry of the default judgment.
This appeal raises an issue of first impression as to whether a default judgment is
void for lack of notice where the marital dissolution petition requests the court to
determine the property rights of the parties but does not list any property. Rather than
listing assets and debts, the petition states that the parties will stipulate to division of the
assets and debts and, if this does not occur, the petitioner will amend the petition. Before
either of these alternatives occurred, the court struck Joseph’s answer to the petition,
conducted a prove-up hearing, and entered a default judgment disposing of the marital
property. Prior to the court striking Joseph’s answer, both parties served on each other
preliminary declarations listing all known assets and debts subject to disposition.
Normally, for notice purposes, a default judgment cannot dispose of property
which has not been listed in the marital dissolution petition or an attached property
declaration. Rather than concluding, here, that the default judgment is void because it
disposes of property not listed in the petition, we hold the default judgment is valid and
enforceable because Joseph appeared in the proceedings by filing a response listing assets
and debts subject to disposition, and Joseph received notice of the assets and debts
disposed of in the default judgment by being served with the Annette’s two preliminary
declarations. Furthermore, any deficiency in notice was waived by Joseph’s response to
the petition and preliminary declaration, both of which listed the property disposed of in
the default judgment. We therefore reject Joseph’s contentions and affirm the judgment.
2
II
FACTS AND PROCEDURAL BACKGROUND
Joseph and Annette married in 1989 and separated in August 2009. Annette filed
a petition for dissolution of marriage (Petition) on August 6, 2009. Annette checked the
Petition box under section 4, entitled, “Separate Property,” and stated: “Petitioner
requests that the assets and debts listed . . . below be confirmed as separate property.”
Rather than listing the assets and debts, Annette stated: “Petitioner requests confirmation
of all earnings and assets acquired before, during and after the date of marriage, including
inherited items, and after date of separation. Petitioner is unaware of all such assets and
debts, and will file a stipulation for judgment fully disposing of all assets and debts. In
the event the same is not filed, petitioner will amend this petition.”
Annette also checked box b in section 5 of the Petition, entitled “Declaration
regarding community and quasi-community assets and debts as currently known.” Box b
states: “All such assets and debts are listed.” Annette added: “Petitioner does not know
the full extent of such assets and debts. Petitioner will file a stipulation for judgment
fully disposing of all such assets and debts. In the event that the same is not filed,
petitioner will amend this petition.” In section 7 of the Petition, Annette stated:
“Petitioner requests that the court grant the above relief and make . . . other orders as
follows: . . . [x] Property rights be determined.”
On August 28, 2009, Joseph filed a response and request for dissolution of
marriage (Response). Joseph listed the following items in section 4, entitled “Separate
Property”: “Pre-Marital and post separation earnings, property and accumulations,”
3
“Gifts and inheritances,” “Traceable interests per Family Code Sections 2580, 2581 and
2640,” “1928 Victrola,” and “Washington Mutual, Las Vegas account.” Joseph indicated
this property was his own separate property. In section 5 of his response, entitled
“Declaration regarding community and quasi-community assets and debts as currently
known,” Joseph stated that all such assets and debts were listed in attachment 5b.
Attachment 5b included a list of the following items:
“1. Residence on Calle de las Rosas, Rancho Mirage, California, subject to debt.
“2. Residence on Grey Wolf Trail in La Quinta, California, subject to debt.
“3. Household furniture and furnishings.
“4. 2004 Lexus, subject to debt.
“5. 2005 Lexus, subject to debt.
“6. Bank of America accounts.
“7. Etrade account.
“8. Ameritrade IRA account.
“9. Starwood 401k.
“10. 2008 tax refund.
“11. Miscellaneous credit card debt.
“12. Other assets and debts unknown at this time. Respondent prays leave to amend this
Response when the same is ascertained or according to proof.”
Joseph also stated in section 9 of his Response: “Respondent requests that the
court grant the above relief and make . . . other orders as follows: . . . [x] Property rights
be determined.”
4
On September 1, 2009, Annette filed a motion for child support, spousal support,
injunctive order, and attorney fees and costs. Annette also filed an income and expense
declaration. Joseph filed a responsive declaration to Annette’s motion and an income and
expense declaration.
On September 9, 2009, Joseph filed a preliminary declaration of disclosure, which
included (1) a completed schedule of assets and debts (form FL-142); (2) a completed
income and expense declaration (form FL-150); (3) “a statement of all material facts and
information regarding valuation of all assets that are community property or in which the
community has an interest”; (4) “A statement of all material facts and information
regarding obligations for which the community is liable”; and (5) “An accurate and
complete written disclosure of any investment opportunity, business opportunity, or other
income-producing opportunity . . . .”
On October 7, 2009, the trial court heard Annette’s support motion. The court
ordered Joseph to pay spousal and child support, and Annette’s attorney fees. The
parties’ attorneys stipulated in court that the parties could not withdraw funds from the
Ameritrade account except to pay for their son’s UCLA expenses and $500 for his high
school placement expenses.
Order Joseph Produce Ameritrade Documents
On October 26, 2009, the court filed and served on the parties “Findings and Order
After Hearing,” regarding the October 7, 2009 hearing (October 26, 2009 order). The
October 26, 2009 order included the following property orders:
5
“1) Petitioner, Annette Eustice, is awarded exclusive use of the family residence located
at . . . Calle De Las Rosas, Rancho Mirage, . . . the furnishings located there. . . .
“2) Respondent may withdraw funds from the parties’ Ameritrade account to pay for
attorney fees.
“3) The parties may not withdraw any funds from the Ameritrade account except to pay
for UCLA expenses for the parties’ adult son, and $500 for high school placement
expenses for the parties’ minor child, . . .
“4) Respondent shall promptly provide Petitioner with an accounting of any monies
withdrawn for the UCLA expenses. Respondent shall further provide to Petitioner a copy
of monthly statements for the Ameritrade account. Respondent shall also provide to
Petitioner an accounting of any monies withdrawn after September 1, 2009.”
On October 27, 2009, Annette filed and served on Joseph a preliminary
declaration of disclosure, which included (1) a completed schedule of assets and debts
(form FL-142); and (2) a completed income and expense declaration (form FL-150).
Annette’s schedule of assets and debts itemized all known assets and debts, including the
Calle de las Rosas and Grey Wolf Trail properties, three vehicles, a checking account, an
Ameritrade stock account and retirement account, and Bank of America and Chase credit
card debts. The declarations were signed under penalty of perjury and served on Joseph.
In March 2011, Annette filed a motion for sanctions under Code of Civil
6
Procedure section 177.5,1 based on Joseph’s failure to comply with the October 7, 2009
court order. Annette stated in her supporting declaration that Joseph had not provided her
with an accounting of the money withdrawn from the Ameritrade account or monthly
statements. Annette had repeatedly requested Joseph to provide the documents.
In May 2011, Annette filed a stipulation and order regarding her motion for
sanctions. The parties stipulated Joseph would on or before June 20, 2011, comply with
the October 26, 2009 findings and order, requiring Joseph to provide an accounting of the
Ameritrade account and documents showing withdrawals.
In April 2012, upon bifurcation, the trial court terminated the parties’ marital
status.
In May 2012, Annette filed a motion for modification of spousal support and
request for attorney fees, costs, sanctions, and striking Joseph’s Response (motion to
strike). Annette stated that Joseph had provided her with only one year of monthly
Ameritrade statements, through the previous summer. The statements showed Joseph
had removed substantial funds from the Ameritrade account. No further statements were
provided or any accounting for the money removed from the account. Annette had
attended three hearings seeking court orders for production of the Ameritrade records.
Joseph had still not produced any records of his withdrawals from the Ameritrade
account or records showing the disposition of the money withdrawn. Annette therefore
filed a motion to strike Joseph’s Response and enter default judgment under section
1
Unless otherwise noted, all statutory references are to the Code of Civil
Procedure.
7
2023.010, subdivision (g), and section 2023.030 for disobeying the court’s orders to
provide discovery and for misusing the discovery process. Annette also requested
monetary sanctions under section 177.5 for Joseph’s violation of court orders, as an
alternative remedy, to punish Joseph for failing to provide court-ordered discovery.
Annette attached to her motion to strike Joseph’s Response, a current income and
expense declaration stating the nature and amount of all known assets and debts. Also
attached was Annette’s declaration stating she had previously agreed to allow Joseph to
withdraw funds from the Ameritrade account to pay for their oldest child’s college
expenses on the condition Joseph promptly provide Annette with an accounting of all
money withdrawn from the account since their separation, and promptly provide her with
all account statements received. Joseph refused to do so, as agreed and as ordered by the
court, causing Annette to incur substantial attorney fees in enforcing the court-ordered
production of the Ameritrade documents. Attached to Annette’s declaration were two
Ameritrade statements showing the funds in the Ameritrade account had decreased from
approximately $111,000 in September 2009, to $35,266 as of June 2011.
Order Striking Joseph’s Response
On June 18, 2012, the trial court heard Annette’s motion to strike. The court
ordered stricken Joseph’s Response. On August 21, 2012, the trial court entered findings
and an order after hearing, regarding the hearing on June 18, 2012. The orders included
an order striking Joseph’s Response pursuant to section 2023.010, subdivision (g).
On December 11, 2012, Annette filed and served on Joseph a request to enter
default on the Petition and documents supporting default judgment, including a final
8
declaration of disclosure, income and expense declaration, and property declaration. On
January 8, 2013, the trial court notified Annette of the court’s rejection of her default
prove-up documents on the ground section 19 of her supporting declaration was
inconsistent. The date of marital dissolution was inconsistent with the court records.
Also, the property listed in her declaration and the judgment was inconsistent with the
property declarations.
Default Prove-Up Hearing and Judgment
On January 14, 2013, Annette filed a request to set an uncontested matter for a
default judgment prove-up hearing on the Petition. The default prove-up hearing was
heard on February 27, 2013.2 Annette’s attorney informed the court she had submitted
every declaration and specified every known asset. The trial court acknowledged it had
struck Joseph’s Response on June 18, 2012, and the matter was being heard as a default
prove-up. Therefore Annette was not required to serve Joseph with the prove-up packet.
During the hearing, Annette’s attorney explained that $700,000 was owed on the Calle de
las Rosas residence, which was more than the property was worth. The court had
previously ordered that Annette was permitted to remain in the home. Joseph then
convinced Annette to accept transfer of title to the residence to Annette, which Annette
thought the court had ordered. Annette’s misunderstanding resulted in Annette, as new
title holder, becoming solely responsible for the debt owed on the home. Joseph also
2 The reporter’s transcript indicates the hearing was on February 23, 2013,
whereas the register of actions and various pleadings state the hearing was on February
27, 2013.
9
persuaded Annette to transfer to Joseph the Grey Wolf Trail property, which had $50,000
in equity.3 After reviewing the evidence and hearing testimony from Annette, the trial
court ordered that all previous orders would remain in effect and that Annette was to
prepare a proposed judgment, consistent with the court’s findings and orders on February
27, 2013.
In June 2013, Annette submitted to the trial court and served on Joseph a proposed
findings and order after default prove-up hearing on February 27, 2013. Attached were
documents entitled “Annette Eustice Property Division Reconciliation Sheet,” “Asset
Analysis by Annette,” and “Requested Separate and Community Property Allocation,”
containing detailed lists of the community property assets and debts.
3 Pursuant to California Rules of Court, rule 8.252 and Evidence Code sections
451, 452, and 459, Joseph requests judicial notice of grant deeds recorded on May 29,
2012, for two properties located on Grey Wolf Trail, La Quinta, California and on Calle
de las Rosas, Rancho Mirage, California. Joseph states in his judicial notice request that
it is unclear whether the grant deeds were presented to the trial court. Joseph asserts the
grant deeds are relevant to show the trial court did not have jurisdiction to transfer both
properties to Annette, when Annette had previously transferred to Joseph in May 2012
the La Quinta property as his separate property.
Joseph’s request for judicial notice of the grant deeds is denied on the ground the
grant deeds were not presented to the trial court: “Reviewing courts generally do not take
judicial notice of evidence not presented to the trial court. Rather, normally ‘when
reviewing the correctness of a trial court’s judgment, an appellate court will consider only
matters which were part of the record at the time the judgment was entered.’ [Citation.]
No exceptional circumstances exist that would justify deviating from that rule, either by
taking judicial notice or exercising the power to take evidence under Code of Civil
Procedure section 909.” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal. 4th
434, 444, fn. 3.)
10
Joseph’s Motion to Set Aside Default
In July 2013, Joseph filed a request to set aside default entered on February 27,
2013. Joseph argued the judgment must be set aside because Annette’s Petition did not
list all community property disposed of in the default judgment. The judgment was thus
void because it exceeded the scope of the Petition. Annette filed a responsive declaration
to Joseph’s motion, stating that Joseph’s default had been entered and therefore he had no
standing unless the court set aside his default.
On August 19, 2013, the court filed and entered a findings and order after hearing,
which attached and incorporated Annette’s proposed findings and order after default
prove-up hearing.
On October 28, 2013, the trial court heard Joseph’s motion to set aside default.
Annette’s attorney objected to the trial court hearing the motion on the ground default
had been entered against him in December 2012, and his motion was brought more than
six months later. Therefore Joseph did not have standing to bring the motion. Joseph’s
attorney argued Stein v. York (2010) 181 Cal. App. 4th 320 (Stein), In re Marriage of
Andresen (1994) 28 Cal. App. 4th 873 (Andresen), and In re Marriage of Kahn (2013) 215
Cal. App. 4th 1113 [Fourth Dist., Div. Two] (Kahn) supported setting aside default on the
ground there was no declaration of property filed with the Petition, and therefore under
section 580, the trial court did not have jurisdiction over the property disposed of in the
default judgment.
Annette’s attorney argued the three cited cases were distinguishable in that they all
were appeals from default judgments, whereas in the instant case, a judgment had not yet
11
been entered. There only was entry of default. In addition, the cases were factually
distinguishable and Joseph had filed a responsive pleading listing all the property he
wanted adjudicated. The parties also exchanged preliminary declarations and disclosures.
The trial court ordered Annette to file a proposed judgment based on the allegations in
the Petition and declarations served on Joseph. The court indicated that Joseph’s remedy
would then be to appeal the judgment as opposed to seeking relief in the trial court by
means of a motion to set aside default.
On February 26, 2014, the trial court entered and filed a judgment on reserved
issues and filed a notice of entry of the judgment. The judgment stated property division
was ordered as set forth in the attachment to the judgment. The attachment included a list
of orders dividing and distributing the following marital property listed in Annette’s
October 2009 preliminary declaration:
1. Calle de las Rosas residence
2. Grey Wolf Trail property
3. Household furnishings, furniture, and appliances
4. Ameritrade accounts
5. Two vehicles
6. El Paseo bank account balance
7. Two Federal Kemper Life insurance policies
Joseph filed a notice of appeal of the February 26, 2014 judgment.
12
III
SCOPE OF RELIEF REQUESTED
Joseph contends that because Annette’s Petition did not identify specific assets
and debts subject to disposition by the court, the default judgment is improper and void
under section 580. Joseph further argues that under Stein, supra, 181 Cal. App. 4th 320,
Annette’s preliminary declarations did not rectify this notice defect in the Petition.
“It is a fundamental concept of due process that a judgment against a defendant
cannot be entered unless he was given proper notice and an opportunity to defend.
[Citations.] California satisfies these due process requirements in default cases through
section 580.” (In re Marriage of Lippel (1990) 51 Cal. 3d 1160, 1166 (Lippel).) Section
580, subdivision (a), provides in part: “The relief granted to the plaintiff, if there is no
answer, cannot exceed that demanded in the complaint, . . .” “‘[T]he primary purpose of
the section is to guarantee defaulting parties adequate notice of the maximum judgment
that may be assessed against them.’” (Stein, supra, 181 Cal.App.4th at p. 325, quoting
Greenup v. Rodman (1986) 42 Cal. 3d 822, 826.) “Section 580 ‘ensure[s] that a defendant
who declines to contest an action . . . [is] not . . . subject[ed] . . . to open-ended liability’
and operates as a limitation on the court’s jurisdiction.” (Stein, at p. 325; Greenup, at p.
826.) “‘The notice requirement of section 580 was designed to insure fundamental
fairness.’” (Stein, at p. 325, quoting Becker v. S.P.V. Construction Co. (1980) 27 Cal. 3d
489, 494.) The limitation on default judgments under section 580 applies to marital
dissolution proceedings. That section “requires that a default judgment in a dissolution
action which is greater than the amount specifically demanded in the petition be
13
considered void as beyond the court’s jurisdiction. . . . [Citations.]” (In re Marriage of
Wells (1988) 206 Cal. App. 3d 1434, 1438 (Wells).)
Joseph relies on Stein for the proposition that, because the default judgment in the
instant case disposes of property which was not listed in Annette’s Petition, the judgment
is void. In Stein, supra, 181 Cal. App. 4th 320, a legal malpractice action, the defendant
appealed a $2.65 million default judgment on the ground the judgment was void under
section 580 because the complaint failed to state the amount of damages requested. The
court in Stein, agreed and reversed the default judgment. (Id. at pp. 323, 327.)
As explained in Stein, “If a default judgment awarded against a defendant exceeds
the relief demanded in the complaint [citation], or is a different form of relief than that
demanded in the complaint [citation], the defendant is ‘effectively denied a fair hearing
. . . [citations]’ [citation]. Thus, a default judgment in an amount greater than the amount
demanded is void and subject to either direct or collateral attack.” (Stein, supra, 181
Cal.App.4th at p. 326.) “Where ‘no specific amount of damages is demanded, there is no
adequate notice to the defendant—and a default judgment entered under those conditions
is void. [Citation.]’” (Id. at p. 327, quoting Janssen v. Luu, supra, 57 Cal.App.4th at p.
279.) The Stein court held that because the legal malpractice complaint did not specify
the amount of damages sought, the complaint could not support a default judgment in any
amount and therefore the default judgment was void. (Stein at p. 327.)
Stein is distinguishable from the instant case. Stein is not a marital dissolution
case and involves entry of default because of the defendant’s refusal to file an answer to
the legal malpractice complaint. In the instant case, Joseph filed a response to Annette’s
14
Petition but it was stricken because Joseph refused to comply with the court’s discovery
order. Also, here, Annette and Joseph filed preliminary declarations and disclosure
declarations listing the property subject to disposition, and the Petition provided notice of
the type of relief requested.
Joseph argues that under Stein, the preliminary declarations did not provide
adequate notice of potential liability. In Stein, the court rejected the plaintiff’s contention
that the defendant’s active participation in discovery and other pretrial procedures waived
the defendant’s right to object to the amount of damages awarded. (Stein, supra, 181
Cal.App.4th at pp. 325-326.) The Stein court stated that, “[u]nder section 580 actual
notice of the damages sought is not sufficient; due process requires ‘formal notice.’ . . .
[C]onstructive notice of potential liability does not satisfy section 580.” (Id. at p. 326.)
This is because due process requires that defendants be told exactly what their exposure
is so they can make an informed decision when deciding whether to respond to a
pleading. (Ibid.) “The purpose of section 580 is to assure a defendant that if he does not
contest the action, the judgment taken against him will not go beyond the prayer of the
complaint. . . .” (Wells, supra, 206 Cal.App.3d at p. 1437.)
The complaint or petition is not necessarily the sole statement of relief that forms
the boundaries of relief granted in a default judgment. Section 580 specifies two other
plaintiff-generated documents which limit certain default judgments: a section 425.11
statement of damages in personal injury and wrongful death actions, and written notice of
the exact amount of punitive damages plaintiff seeks, as required by section 425.115. A
petitioner’s list of assets and debts in a property declaration, preliminary declaration, and
15
disclosure declaration fulfill the same notice function in a marital dissolution as do a
statement of damages and punitive damages notice, provided the declarations are served
on the respondent before entry of default. We therefore treat Annette’s preliminary
declarations the same as a statement of damages or punitive damages notice. The
Petition and Annette’s declarations served on Joseph before his Response was stricken
satisfied Joseph’s right to notice of the relief requested and the property subject to
disposition.
Family Code section 2103 indicates that a preliminary declaration serves the
purpose of putting the parties on notice of the property at issue in a marital dissolution
action: “In order to provide full and accurate disclosure of all assets and liabilities in
which one or both parties may have an interest, each party to a proceeding for dissolution
of the marriage or legal separation of the parties shall serve on the other party a
preliminary declaration of disclosure under Section 2104 and a final declaration of
disclosure under Section 2105, unless service of the final declaration of disclosure is
waived pursuant to Section 2105 or 2110, . . .” (Fam. Code, § 2103.)
Annette was not required to serve Joseph with a final declaration because “In the
case of a default judgment, the petitioner may waive the final declaration of disclosure
requirements . . . and shall not be required to serve a final declaration of disclosure on the
respondent nor receive a final declaration of disclosure from the respondent. However, a
preliminary declaration of disclosure by the petitioner is required.” (Fam. Code, § 2110.)
This is because a preliminary declaration serves the purpose of ensuring notice of
potential liability, just as would a section 425.11 statement of damages in personal injury
16
and wrongful death actions, or a section 425.115 written notice of the exact amount of
punitive damages.
As in the instant case, in the marital dissolution case, Andresen, supra, 28
Cal. App. 4th 873, the husband moved to set aside default judgment on the ground the trial
court awarded to the wife default relief which went beyond the scope of the marital
dissolution petition. The wife did not attach any values to the assets or debts listed in her
petition property declaration and did not request division of the assets and debts in any
particular manner. (Id. at p. 877.) The Andresen court held that the default judgment was
not void under section 580, and the trial court did not err in denying the motion to set
aside entry of default and vacate the default judgment. (Id. at p. 883.)
In reaching its holding, the Andresen court noted that “‘The [Family Law Act
([former] Civ. Code, § 4000 et seq.)] abolished the traditional complaint, which often
contained the standard prayer for general relief that we found . . . to be sufficient notice
of a possible support award. The Act empowered and directed the Judicial Council to
create, as a substitute for the traditional complaint, a mandatory printed standard form
petition. (Civ. Code, § 4503.)’”4 (Andresen, supra, 28 Cal.App.4th at p. 878, quoting
Lippel, supra, 51 Cal.3d at pp. 1169-1170.)
“‘[I]n 1970, the Judicial Council promulgated rule 1281 of the California Rules of
Court, which established a mandatory standard form dissolution petition. This standard
4“Effective January 1, 1994, Family Code section 300 et seq. superseded the
Family Law Act without substantive change.” (In re Marriage of Cantarella (2011) 191
Cal. App. 4th 916, 919, fn. 1.)
17
form petition, which, with minor modifications over the years, remains in use today,
requires a petitioner to set forth certain statistical information in spaces provided, and to
check boxes, from a series provided, which indicate the remedy or relief requested (e.g.,
legal separation, dissolution, or nullity of the marriage) and the specific relief being
sought (e.g., property division, spousal support, child custody, child support or attorney
fees). [¶] ‘Coupled with the requirement that the respondent be served with a copy of the
petition (Civ. Code, § 4503), the manner in which these boxes are checked, or not
checked, informs and puts the respondent on notice of what specific relief the petitioner
is, or is not seeking.’” (Andresen, supra, 28 Cal.App.4th at pp. 878-879, quoting Lippel,
supra, 51 Cal.3d at pp. 1169-1170.)
In Lippel, a marital dissolution action, the court held that a plaintiff who checks
the appropriate box in a form complaint provides adequate notice of the type of relief
awarded in a default. (Lippel, supra, 51 Cal.3d at p. 1169; Finney v. Gomez (2003) 111
Cal. App. 4th 527, 537.) Relying on Lippel, the Andresen court concluded 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 which correspond or
relate to the allegations made and the relief sought by the petitioner. The [Lippel]
opinion does not suggest that any greater specificity is required. 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
18
the form does not itself expressly demand such data.” (Andresen, supra, 28 Cal.App.4th
at p. 879.)
The Andresen court concluded that, “because the wife properly and fully
completed the petition and its necessary attachments to the extent of the relief requested
on the face of those documents, the husband was given adequate notice that the wife
sought a division of the property and liabilities identified in the wife’s papers. [Citation.]
If he desired to be heard on the subject of the valuation and division of the listed items,
he should have appeared.” (Andresen, supra, 28 Cal.App.4th at pp. 879-880.)
Unlike in Andresen, here, Annette did not attach a property declaration to her
Petition. Instead, she stated she was unaware of all such assets and debts but would file a
stipulation for judgment fully disposing of all assets and debts or, alternatively amend her
Petition if a stipulation was not filed. The issue here is whether the default judgment
exceeds the scope of the Petition where the Petition requests the court to determine the
marital property rights and liabilities but does not identify specific property. Joseph
argues that Annette’s failure to specify any property or debts at issue deprived him of
notice of the relief awarded in the default judgment. We disagree.
Although the Petition does not list specific property and debts, Joseph appeared in
the Petition proceeding by filing a Response, which requested the same relief for a
determination of property rights requested in the Petition. In addition, Joseph included in
his Response a property declaration listing specific marital assets and debts subject to
disposition. Annette’s preliminary declarations also provided Joseph with notice of the
property disposed of in the default judgment. While generally, a default dissolution
19
judgment may not exceed the petitioner’s demands, and any greater or differing relief is
beyond the court’s jurisdiction (Lippel, supra, 51 Cal.3d at p. 1167, Andresen, supra, 28
Cal.App.4th at p. 886), here, the court had jurisdiction, not only to grant the relief
requested in Annette’s Petition, but also to dispose of the property listed in Annette’s
preliminary declarations.
Joseph cites Kahn, supra, 215 Cal. App. 4th 1113, for the proposition that the
default judgment is void because Annette failed to list in the Petition the assets and debts
disposed of by default judgment. In Kahn, we reversed default judgment, holding that
the default judgment awarding $275,000 in damages for breach of fiduciary duty
improperly exceeded the scope of the marital dissolution petition. (Id. at p. 1116.) In
Kahn, the petitioner checked the form complaint box for “[o]ther” relief, without
specifying the nature or amount of the relief sought, other than stating: “‘Relief for
[Robert’s] breach of fiduciary duty pursuant to Family Code sections 1100 et seq.’”
(Ibid.) The trial court struck the respondent’s answer to the marital dissolution petition as
a discovery sanction and awarded the petitioner $275,000 for breach of fiduciary duty.
We held in Kahn that the petitioner did not provide sufficient notice under section 580 of
the relief awarded in the default judgment, because the petitioner did not specify the
nature and amount of damages requested. (Kahn, at p. 1116.)
We explained in Kahn that “It would be stretching Andresen too far to apply it in
this case. Admittedly, we are dealing with a form complaint in a marital dissolution
action. However, the checkbox for ‘[o]ther’ relief is distinguishable from the checkboxes
for a division of community property. It is a catchall category; it could encompass
20
practically any kind of relief, including relief that is not statutorily required in a marital
dissolution action. The respondent is therefore entitled to notice of the specific nature
and amount of any ‘[o]ther’ relief sought before defaulting.” (Kahn, supra, 215
Cal.App.4th at p. 1119.)
Kahn is distinguishable because, in the instant case, Annette did not request
“other” relief. Annette checked the boxes for division of community property and
determination of property rights. By checking those boxes, it was clear Annette was
seeking disposition of all of the parties’ assets and debts. Although Annette should have
listed in her Petition the property subject to disposition, Annette placed Joseph on notice
of the type of relief requested and further notified him in her preliminary declarations and
disclosure declarations of the property subject to disposition.
Joseph’s Response to the dissolution Petition and preliminary declaration
demonstrated he was on notice of the relief Annette was seeking and the property subject
to disposition. If he desired to be heard on the subject of the valuation and division of the
listed items, he should have avoided having his Response stricken by complying with the
court’s orders to produce necessary discovery documents. (Andresen, supra, 28
Cal.App.4th at pp. 879-880.) Joseph should not be permitted to benefit from his
recalcitrance, and set aside the default judgment based on a lack of notice of the relief
requested in the Petition, when the record shows he received notice through the Petition
and Annette’s preliminary declarations, and requested the same relief in his own
Response. The default judgment was therefore not void under section 580.
21
IV
ORDER STRIKING RESPONSIVE PLEADINGS
Joseph contends the trial court abused its discretion in striking his Response on
June 18, 2012, pursuant to section 2023.010, subdivision (g). He argues the court did not
have authority to issue a terminating sanction where there was no discovery motion to
compel or any finding of a violation of a prior court order to provide discovery. We
disagree.
Section 2023.010, subdivision (g) provides: “Misuses of the discovery process
include, but are not limited to, the following: [¶] . . . [¶] (g) Disobeying a court order to
provide discovery.” Section 2023.030 provides: “To the extent authorized by the chapter
governing any particular discovery method or any other provision of this title, the court,
after notice to any affected party, person, or attorney, and after opportunity for hearing,
may impose the following sanctions against anyone engaging in conduct that is a misuse
of the discovery process: [¶] . . . [¶] (d) The court may impose a terminating sanction by
one of the following orders:
“(1) An order striking out the pleadings or parts of the pleadings of any party engaging in
the misuse of the discovery process. [¶] . . . [¶]
“(4) An order rendering a judgment by default against that party.”
“Misuse of the discovery process may result in the imposition of a variety of
sanctions. These include payment of costs, sanctions barring the introduction of certain
evidence, sanctions deeming that certain issues are determined against the offending
party, and sanctions terminating an action in favor of the aggrieved party. (Code Civ.
22
Proc., §§ 2023.020, 2023.030.) Misuse of the discovery process includes failing to
respond or submit to authorized discovery, providing evasive discovery responses,
disobeying a court order to provide discovery, unsuccessfully making or opposing
discovery motions without substantial justification, and failing to meet and confer in
good faith to resolve a discovery dispute when required by statute to do so. (Code Civ.
Proc., § 2023.010, subds. (d)-(i).) The court may impose sanctions ‘[t]o the extent
authorized by the chapter governing any particular discovery method or any other
provision of this title . . . .’ (Code Civ. Proc., § 2023.030.)” (Karlsson v. Ford Motor Co.
(2006) 140 Cal. App. 4th 1202, 1214 (Karlsson).)
The trial court has broad discretion to impose sanctions for violations of court
orders, including those intended to compel compliance with a party’s disclosure and
discovery obligations, subject to reversal only for arbitrary or capricious action. (Parker
v. Wolters Kluwer United States, Inc. (2007) 149 Cal. App. 4th 285, 297; Karlsson, supra,
140 Cal.App.4th at p. 1217.) “A decision to impose the ultimate sanction—a judgment in
the opposing party’s favor—should not be made lightly. ‘But where a violation is willful,
preceded by a history of abuse, and the evidence shows that less severe sanctions would
not produce compliance with the discovery rules, the trial court is justified in imposing
the ultimate sanction.’” (Parker, at p. 297, quoting Mileikowsky v. Tenet Healthsystem
(2005) 128 Cal. App. 4th 262, 279-280.)
The striking of Joseph’s Response did not constitute an excessive sanction.
Joseph violated the trial court’s October 26, 2009 order that “Respondent shall promptly
provide Petitioner with an accounting of any monies withdrawn for the UCLA expenses.
23
Respondent shall further provide to Petitioner a copy of monthly statements for the
Ameritrade account. Respondent shall also provide to Petitioner an accounting of any
monies withdrawn after September 1, 2009.” Joseph persisted for over two and a half
years in refusing to produce the court-ordered Ameritrade documents, despite the trial
court’s order and Annette’s repeated requests for the documents.
The trial court’s order to produce the Ameritrade documents constituted a
discovery order. It required Joseph to produce material documents requested by Annette,
which revealed account activity and the value of funds contained in the Ameritrade
account. The court-ordered documentation was crucial to a determination of the rights of
the parties to the Ameritrade funds. Joseph committed willful discovery abuse, which
caused the unavailability of material evidence. Joseph’s ongoing recalcitrance for over
two and a half years interfered with the trial court’s ability to properly dispose of the
marital property and subjected the Ameritrade funds to covert, unrestrained, improper
expenditure by Joseph. Under such circumstances, the trial court’s order striking
Joseph’s response was not an abuse of discretion and was proper under sections
2023.010, subdivision (g), and 2023.030, subdivision (d).
Joseph argues the trial court was precluded from entering default judgment
because there was no entry of default. However, the record on appeal, including the
clerk’s transcript, indicate that the court entered default after Annette filed on December
11, 2012, a request to enter default, along with her default judgment prove-up documents.
Although the court rejected Annette’s request for default judgment because of
inconsistencies in her prove-up documents, there is nothing in the record showing that the
24
court also rejected entry of default. Annette opposed Joseph’s motion to set aside default
on the ground default had been entered in December 2012, and therefore Joseph did not
have standing to set aside default. There is nothing in the record indicating the trial court
rejected this premise that Joseph lacked standing based on entry of default, particularly
since the court thereafter proceeded with a default judgment hearing. Furthermore, an
order entering default was not necessary because the trial court previously struck
Joseph’s Response.
Citing In re Marriage of Loh (2001) 93 Cal. App. 4th 325 (Loh), Joseph argues the
trial court did not have authority to dismiss his Response under section 2023.030 of the
Civil Discovery Act because the trial court’s order that Joseph produce Ameritrade
documents is not the same as a discovery order to produce documents. In Loh, a child
support modification proceeding, the father failed to comply with his agreement to
provide the mother with requested tax returns. During the child support modification
hearing, the trial court ordered child support increased. The father appealed the order,
arguing it was, in effect, an improper discovery sanction. The Loh court agreed,
concluding the order was “deep down, really only a discovery sanction” directed at the
father for not turning over the tax returns. (Loh at p. 330.)
The Loh court reversed the support order on the grounds there was insufficient
evidence supporting the increase in support, noting: “We reverse the ensuing child
support order. Evidence of lifestyle, particularly a lifestyle subsidized by a new
‘nonmarital partner’ . . . is not a cheap substitute for proper discovery of income reported
on tax returns.” (Loh, supra, 93 Cal.App.4th at p. 327.) The Loh court further reasoned
25
that the mother could have brought a motion to compel the tax returns and requested
sanctions, such as an issue sanction, evidence sanction, or monetary sanction. The court
stated: “[I]n the face of the Legislature’s having provided a clear method of relief for
Victor’s failure to turn over current income tax returns, and Pamela’s not having availed
herself of it, we cannot justify the order before us as a de facto discovery sanction.” (Id.
at p. 331.)
Loh is inapposite and does not support Joseph’s contention the trial court was
precluded from striking his Response. The instant case does not concern support
modification proceedings or an order imposed as a de facto sanction for noncompliance
with an agreement to produce documents. The instant case involves sanctions
appropriately imposed under section 2023.030 on the ground Joseph willfully violated the
court’s order to produce Ameritrade documents. There is no merit to Joseph’s argument
that there was no discovery request, no order to produce documents pursuant to a
discovery motion, and no violation of a discovery act order. The trial court’s order to
produce Ameritrade documents was a discovery order. Joseph’s failure over a lengthy
period of time to comply with the trial court’s order to produce Ameritrade documents
violated the Discovery Act and was an abuse of discovery. The trial court’s order
striking Joseph’s Response therefore was authorized and proper under sections 2023.010,
subdivision (g), and 2023.030, subdivision (d).
26
V
DISPOSITION
The judgment is affirmed. Annette is awarded her costs on appeal.
CERTIFIED FOR PUBLICATION
CODRINGTON
J.
We concur:
RAMIREZ
P. J.
KING
J.
27