Filed 8/28/26 Cota v. Excellence RE Real Estate CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
LORRAINE COTA, B337150
Plaintiff and Respondent, (Los Angeles County Super. Ct. No. 22NWCV00150)
v.
EXCELLENCE RE REAL ESTATE, INC.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Brian F. Gasdia, Judge. Reversed and remanded with instructions.
Fitzgerald Kreditor Bolduc Risbrough, Eoin L. Kreditor, Brook John Changala and Julio Soto-Kim, Jr. for Defendant and Appellant.
DeArmey Law and Matthew S. DeArmey for Plaintiff and Respondent.
________________________
INTRODUCTION
Excellence RE Real Estate, Inc. (Excellence) appeals the entry of default and default judgment against it after it was sued by Lorraine Cota. Excellence argues the trial court erred by awarding punitive damages because Cota failed to provide the requisite notice she was seeking punitive damages under Code of Civil Procedure section 425.115.1 We agree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND2
A. Cota’s Complaint On March 3, 2022, Cota sued Excellence and other defendants, alleging (as relevant here) elder abuse (Welf. & Inst. Code, § 15610.30), breach of fiduciary duty, fraud, and constructive fraud.3 Cota alleged she contracted with Excellence, a real estate firm, to sell her real property located in Whittier, and that its real estate agents, along with other defendants,
1 Undesignated statutory references are to the Code of Civil Procedure. 2 To aid in our review, we take judicial notice of the trial court’s minute orders and the register of actions. (See Evid. Code, §§ 452, subd. (d) [judicial notice may be taken of “[r]ecords of . . . any court of this state”], 459.) 3 The other defendants (not parties to this appeal) included Marco Antonio Martin; 365 Kapital, LLC; My Rights Inc.; and Rinaldo Rios. Cota’s complaint alleged additional claims against these defendants for fraud, conversion, recovery of payment to an unlicensed contractor (Bus. & Prof. Code, § 7031, subd. (b)), and breach of contract.
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misrepresented the terms of certain renovations to the property and fraudulently borrowed against the property. The complaint requested restitution, damages of $250,000 under Welfare and Institutions Code sections 15610.30 and 15657.5, subdivision (a), and compensatory and punitive damages as to all causes of action against Excellence. Cota served Excellence with the complaint on March 14, 2022.
B. Default and Default Judgment On April 15, 2022, Cota requested entry of default against Excellence, and the clerk entered default as requested. Cota filed a notice of entry of default on March 1, 2023.
There is no indication in the appellate record, the trial court’s minute orders, or the register of actions that Cota served Excellence with a statement of punitive damages under section 425.115 before requesting entry of default.
On April 18, 2023, Cota requested default judgment against Excellence in the amount of $859,685.18.
On April 25, 2023, Excellence, specially appearing, moved to set aside the default under sections 473, subdivision (d), and 473.5 on the grounds that service was improper and it never received notice of entry of default. The trial court denied the motion on October 3, 2023, finding that “Excellence was personally served on March 14, 2022; therefore, the April 15, 2022 entry of default against Excellence was timely. There is no other reason to believe that the entry of default is void on its face.” The court further found that Excellence “had actual knowledge of the April 15, 2022 default as of September 7, 2022” but “waited over a year to set aside default.”
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Excellence moved to reconsider this ruling on October 12, 2023. The court denied the motion on December 14, 2023.
The court held a default prove-up hearing on December 18, 2023. Excellence was not present at the hearing. On January 5, 2024, the court entered a default judgment for Cota against Excellence awarding damages of $208,809.89, punitive damages of $600,000, plus attorney fees and costs, resulting in a judgment of $917,020.46.4 Excellence timely appealed on March 5, 2024.
C. Post-Appeal Proceedings On August 1, 2025, after it had filed its notice of appeal, Excellence filed a new motion to set aside or vacate the default and default judgment. At a hearing on November 18, 2025, the court stated it would “on its own motion reconsider[] its prior ruling on [Excellence]’s initial Motion to Set Aside Default.” On January 26, 2026, the court ruled: “This Court lacks jurisdiction to [g]rant Defendant Excellence Re Real Estate, Inc. relief from default. Defendant Excellence Re Real Estate Inc.[] remains in Default.”
DISCUSSION
A. Mootness and Motion To Dismiss Cota argues Excellence’s appeal is moot, and she moves to dismiss the appeal. Because Excellence filed a new motion to set
4 The default judgment was also against Marco Antonio Martin, 865 Kapital, LLC, My Rights Inc., Rinaldo Rios, and Michelle Denise Toscano. All defendants, including Excellence, were held jointly and severally liable for the judgment amount.
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aside the default and vacate the default judgment after it filed its notice of appeal, Cota argues the appeal was “mooted by the Trial Court as it has reconsidered the very ruling [Excellence] seeks appeal of.”
“A case becomes moot when events ‘ “render[] it impossible for [a] court, if it should decide the case in favor of [appellant], to grant him any effect[ive] relief.” ’ [Citation.] For relief to be ‘effective,’ two requirements must be met. First, the [appellant] must complain of an ongoing harm. Second, the harm must be redressable or capable of being rectified by the outcome the [appellant] seeks.” (In re D.P. (2023) 14 Cal.5th 266, 276.)
We are satisfied that Excellence’s appeal is not moot.
While Excellence initiated further proceedings in the trial court after filing its notice of appeal, the trial court did not modify the default judgment because it correctly determined it did not have jurisdiction to do so. The harm that Excellence identifies—the default judgment and entry of default—is ongoing, and this court can provide the relief Excellence seeks by vacating the default judgment and setting aside the default. (See Shaw v. Los Angeles Unified School District (2023) 95 Cal.App.5th 740, 772 [an “ ‘appeal is not moot . . . where “a material question remains for the court’s consideration,” so long as the appellate decision can grant a party to the appeal effectual relief’ ”]; accord, Panoche Energy Center, LLC v. Pacific Gas & Electric Co. (2016) 1 Cal.App.5th 68, 96.) We therefore deny Cota’s motion to dismiss the appeal.
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B. Because Cota Did Not Serve a Section 425.115 Statement, the Default Judgment Is Void and Excellence’s Default Must Also Be Set Aside “ ‘It is fundamental to the concept of due process that a defendant be given notice of the existence of a lawsuit and notice of the specific relief which is sought in the complaint served upon him. The logic underlying this principle is simple: a defendant who has been served with a lawsuit has the right, in view of the relief which the complainant is seeking from him, to decide not to appear and defend. However, a defendant is not in a position to make such a decision if he or she has not been given full notice.’ ” (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1520 (Van Sickle).)
“To effectuate this due process principle, California law provides that where a plaintiff seeks to recover money or damages, the amount sought generally must be stated in the complaint.” (Van Sickle, supra, 196 Cal.App.4th at p. 1520.) However, punitive damages are an exception to this rule. (Ibid.; see Civ. Code, § 3295, subd. (e) [“No claim for exemplary [i.e., punitive] damages shall state an amount or amounts.”].) Section 425.115 “provide[s] [a] method[] for satisfying the due process requirement of notice while honoring the bar against pleading a specific amount of [punitive] damages.” (Van Sickle, at p. 1521.)
Section 425.115 “provides that a plaintiff may serve a statement notifying defendant of the amount of punitive damages sought in the action.” (Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1173 (Electronic Funds).) As relevant here, section 425.115, subdivision (b), states: “The plaintiff preserves the right to seek punitive damages . . . on a
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default judgment by serving upon the defendant [such a] statement,” including the “dollar amount” of punitive damages sought. (§ 425.115, subd. (b).) Section 425.115, subdivision (f), states: “The plaintiff shall serve the statement upon the defendant pursuant to this section before a default may be taken, if the motion for default judgment includes a request for punitive damages.” (Id., subd. (f).) “If the party has not appeared in the action, the statement shall be served in the same manner as a summons.” (Id., subd. (g)(1).)
“ ‘The Legislature enacted sections 580, 425.11,[5] 425.115, and related statutes to ensure that a defendant who declines to contest an action does not suffer open-ended liability. [Citation.] The statutes recognize a defendant’s entitlement to “ ‘ “one ‘last clear chance’ ” ’ ” to respond to the complaint and avoid the consequences of a substantial judgment.’ ” (Dhawan v. Biring (2015) 241 Cal.App.4th 963, 969; accord, Electronic Funds, supra, 134 Cal.App.4th at pp. 1173-1174.) “Section 580 . . . limits the amount of punitive damages that can be awarded in a default judgment to the amount stated in a statement of punitive damages ‘provided for by Section 425.115.’ Section 585 also states that the amount awarded in a default judgment must not exceed the amount stated in the complaint . . . or the statement of punitive damages under section 425.115. [Citation.] These
5 Similar to section 425.115, section 425.11 requires that “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 sought. . . . If no request is made for the statement . . . , the plaintiff shall serve the statement on the defendant before a default may be taken.” (§ 425.11, subds. (b) & (c).)
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statutory restrictions on the amounts of damages awarded in a default judgment apply not only in cases where the defendant never filed an answer, but also in cases where the defendant’s answer was stricken as a sanction resulting in a default judgment.” (Matera v. McLeod (2006) 145 Cal.App.4th 44, 60, footnote omitted (Matera); see § 580, subd. (a) [“The relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint, . . . or in the statement provided for by section 425.115.”]; see also Sass v. Cohen (2020) 10 Cal.5th 861, 876 (Sass) [“When section 580 is read in conjunction with section[] . . . 425.115, the prohibition imposed by section 580 is apparent: The amount of monetary relief awarded in default— [including] compensation . . . as punitives—cannot exceed the amount demanded in the statement of damages.”].) “[B]y reason of the mandatory language of [section 580] (the court cannot give a default judgment in excess of the demand), the court’s jurisdiction to render default judgments can be exercised only in the way authorized by statute.” (Burtnett v. King (1949) 33 Cal.2d 805, 807; accord, In re Marriage of Lippel (1990) 51 Cal.3d 1160, 1167.) Because “[s]ection 580 operates as a limitation on the court’s jurisdiction. . . . default judgments rendered in violation of section 580 are void.” (Electronic Funds, at p. 1176; accord, Greenup v. Rodman (1986) 42 Cal.3d 822, 826 [“a default judgment greater than the amount specifically demanded is void as beyond the court’s jurisdiction”].)
“A claim that a default judgment awards damages in excess of the amount allowed under section 580 . . . can be raised for the first time on appeal.” (Matera, supra, 145 Cal.App.4th at p. 59; accord, People ex rel. Lockyer v. Brar (2005) 134 Cal.App.4th 659, 666.) We review de novo whether a judgment is void. (See
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Braugh v. Dow (2023) 93 Cal.App.5th 76, 86; Talley v. Valuation Counselors Group, Inc. (2010) 191 Cal.App.4th 132, 146.)
Excellence argues that, because Cota did not serve a section 425.115 statement of punitive damages before entry of default, the default judgment is void and the underlying default must also be set aside. Excellence contends that “the Trial Court was without jurisdiction to enter default and default judgment against [Excellence]” and “simply reducing the amount of [Cota’s] default judgment against [Excellence] to the amount stated in the Complaint ignores the fact that the underlying default is void as a result of [Cota’s] failure to comply with [section] 425.115.”
We agree with Excellence the default judgment must be vacated, but it is less clear that the default must also be set aside. As stated, section 425.115, subdivision (f), provides that: “The plaintiff shall serve the statement upon the defendant pursuant to this section before a default may be taken, if the motion for default judgment includes a request for punitive damages.” (Italics added.) But the few published cases involving section 425.115, subdivision (f), have taken different approaches.6
6 In Sass, supra, 10 Cal.5th at page 870, the California Supreme Court summarized the applicable law as follows: “[S]ection 425.115 requires a plaintiff seeking punitive damages to serve upon the defendant a form statement ‘or its substantial equivalent’ that gives the defendant notice of the specific amount of punitive damages sought. (§ 425.115, subd. (b).) As with section 425.11, the statement contemplated by section 425.115 must be served ‘upon the defendant . . . before a default may be taken.’ (§ 425.115, subd. (f).)” But in Sass the punitive damages statement under section 425.115 was served (Sass, at p. 867), and the court did not address whether the default must be vacated.
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For example, in Van Sickle, supra, 196 Cal.App.4th at page 1521, the Court of Appeal directed the trial court to vacate the default where the required statements under section 415.11 and section 425.115 were not filed, and it held that, “Not only is a default judgment for an amount greater than that specifically demanded void, but when a statement of damages is required but not served, the underlying entry of default is invalid also and is subject to set-aside.” Van Sickle, however, primarily relied on authorities involving section 415.11. (See id. at p. 1521.)7 And in Behm v. Clear View Technologies (2015) 241 Cal.App.4th 1, 16 as modified (Oct. 16, 2015), the appellate court affirmed the trial court’s decision not to vacate the default where the statement under section 425.115 was not filed, but it did not address the statutory language of subdivision (f).
By contrast, when a party has failed to serve the requisite statement of general and special damages in personal injury cases under section 425.11, which has the same language as section 425.115 requiring that a damages statement be served on the defendant “before a default may be taken” (see section 425.11, subdivision (c) and section 425.115, subdivision (f)), courts have
7 Van Sickle also noted that “where the amount demanded must be set forth in the complaint [as opposed to the statement required by sections 425.11 or 425.115] and the plaintiff recovers a default judgment for more than that amount, the underlying default is valid even [if] the default judgment is void.” (Van Sickle, supra, 196 Cal.App.4th at p. 1521.) That is because “ ‘[o]rdinarily 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.’ ” (Id. at pp. 1521-1522; accord, Sass, supra, 10 Cal.5th at p. 868.)
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regularly vacated entry of default for this reason. (See, e.g., Schwab v. Rondel Homes, Inc. (1991) 53 Cal.3d 428, 433-435 [affirming vacatur of default where defendant was not served with section 425.11 statement before entry of default]; see also Department of Fair Employment & Housing v. Ottovich (2014) 227 Cal.App.4th 706, 712 (Ottovich) [where plaintiff “did not file a statement of damages [under section 425.11] before default judgment was entered,” “recognizing the impropriety of this procedure . . . the trial court later vacated the default”]; Plotitsa v. Superior Court (1983) 140 Cal.App.3d 755, 760 [“a default entered without [a section 425.11] statement being served on the defendant is void on the face of the record”]; Stevenson v. Turner (1979) 94 Cal.App.3d 315, 318 [failure to serve section 425.11 statement is “a defect in the predefault procedure which does affect the validity of the subsequent entry of default”].)
Although we recognize there may be differences between, on the one hand, a statement of punitive damages and, on the other hand, a statement of general and special damages in personal injury cases that could warrant different treatment as it relates to the remedy for the failure to serve the requisite statement, the present circumstances do not require us to decide the matter. Cota does not dispute that she did not serve Excellence with a section 425.115 statement, nor did she advance any argument on the merits of this appeal in her appellate briefing, including whether the proper remedy is vacatur of the default judgment and the default. (See In re Ramone R. (2005) 132 Cal.App.4th 1339, 1351 [respondent “implicitly concedes the
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point by offering no argument to the contrary”].)8 Accordingly, Cota has forfeited any argument that the default judgment and default should not be vacated.
Our review of the record, including the trial court’s minute orders and the register of actions, does not reveal that any section 425.115 statement was served on Excellence to provide notice of Cota’s request for $600,000 in punitive damages. Accordingly, under the circumstances presented, the default judgment awarding punitive damages against Excellence exceeded the court’s jurisdiction and is void, and Excellence’s default must also be set aside.9 (§ 425.115, subd. (f).)
8 At oral argument, Cota’s counsel stated Cota did not concede that Excellence was entitled to vacatur of the default judgment and default. “An appellate court is not required to consider any point made for the first time at oral argument.” (Kinney v. Vaccari (1980) 27 Cal.3d 348, 356, fn. 6; accord, Bonfigli v. Strachan (2011) 192 Cal.App.4th 1302, 1311, fn. 4 [“contentions raised on appeal for the first time at oral argument are generally [forfeited]”].) 9 We express no opinion on the validity of the default judgment as against the remaining defendants in Cota’s action. And in light of our holding, we need not reach Excellence’s additional argument that Cota failed to present evidence supporting the punitive damages award.
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DISPOSITION
The default judgment against Excellence is reversed, and the case is remanded to the trial court with instructions to set aside Excellence’s default and to set a schedule when the plaintiff, if she chooses to, may serve a statement of damages under section 425.115 and when Excellence may file a response to the complaint. The motion to dismiss is denied. Excellence may recover its costs on appeal.
MARTINEZ, P. J.
We concur:
SEGAL, J. FEUER, J.