Filed 10/19/20 Astra Pacific Outdoor v. Sipperley CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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 THREE

ASTRA PACIFIC OUTDOOR, LLC,

Plaintiff and Appellant,

v.

RAYMOND SIPPERLEY,

Defendant and Respondent.

B300105

(Los Angeles County

Super. Ct. No. BC707754)

APPEAL from an order of the Superior Court of Los 

Angeles County, Michael P. Linfield, Judge. Reversed and 

remanded with directions.

Gary S. Mobley for Plaintiff and Appellant.

The Law Offices of Nigel Burns, Nigel Burns and Nicholas 

Stahl for Defendant and Respondent.

_________________________
2

Plaintiff and appellant Astra Pacific Outdoor, LLC (Astra) 

appeals an order granting a motion brought by defendant and 

respondent Raymond Sipperley (Sipperley) pursuant to Code of 

Civil Procedure section 473, subdivision (d), to vacate as void a 

$970,920 default judgment that Astra obtained against 

Sipperley.1

The trial court vacated the default judgment on the ground 

that Astra’s corporate status had been suspended by the 

California Secretary of State before it filed suit against Sipperley, 

and that Astra was not relieved of the suspension until after the 

default judgment was entered.

We conclude the trial court erred in vacating the default 

judgment based on Astra’s corporate incapacity because lack of 

capacity, even if established, is merely a technical objection 

which is waivable. Lack of capacity is not a jurisdictional defect 

and therefore is not a basis for setting aside a judgment as void 

under section 473, subdivision (d).

However, the $970,920 default judgment is void to the 

extent it exceeded the $700,000 demand in Astra’s complaint. 

Therefore, the order granting Sipperley’s motion to vacate the 

default judgment in its entirety is reversed and the matter is 

remanded with directions to enter a new default judgment in the 

amount of $700,000.

1 Code of Civil Procedure section 473 states in relevant part 

at subdivision (d): “The court may, . . . on motion of either party 

after notice to the other party, set aside any void judgment or 

order.”

All undesignated statutory references are to the Code of 

Civil Procedure.
3

FACTUAL AND PROCEDURAL BACKGROUND

1. Pleadings.

On May 25, 2018, Astra, a California limited liability 

company, commenced this action against Sipperley, a New York 

resident, in the Los Angeles Superior Court. The complaint 

asserted causes of action for declaratory relief (first cause of 

action), breach of a partnership agreement (second cause of 

action), and breach of fiduciary duty (third cause of action).

Astra alleged in relevant part that it had entered into a 

partnership agreement with Sipperley under which Sipperley 

was responsible for securing permits for an outdoor advertising 

sign on a certain property in New York, Astra was responsible for 

obtaining advertising agreements, and the parties would share 

on a 50/50 basis the net revenues derived from the sign. 

However, Sipperley failed to finalize the permits, the building 

owner brought an unlawful detainer action to evict Astra from 

the premises, and the New York Department of Building issued 

an order formally revoking Astra’s permits and prohibiting Astra 

from continuing to place advertising on its sign.

Astra alleged that due to Sipperley’s failure to cure the 

defects in the permits, Astra had been forced to vacate the 

premises and has lost the right to maintain the sign, valued at a 

minimum of $650,000, and had also incurred incidental damages 

of $50,000 in attorney fees and costs in defending against the 

lessor’s unlawful detainer action.

Astra further pled that in September 2016, despite failing 

to serve Astra with the summons and complaint, Sipperley 

obtained a judgment against Astra in New York in the amount of 

$320,365 plus costs (the New York judgment), and that in 2017 

Sipperley had registered the judgment in California, with the 
4

California judgment amounting to $346,244.49, including interest 

and filing fees.

By way of relief, on the first cause of action Astra sought a 

judicial declaration that the New York judgment and the related 

California judgment were void. As for damages, on both the 

second and third causes of action, Astra sought “general damages 

. . . in an amount not less than $650,000.00” and “incidental 

damages . . . in an amount not less than $50,000.00.”

2. Sipperley’s default and his earlier attempts to have the 

default set aside.

On December 1, 2018, Astra personally served Sipperley 

with the summons and complaint in New York.2

Sipperley did not answer the complaint, and on February 5, 

2019, pursuant to Astra’s request for entry of default, the clerk 

entered Sipperley’s default. That same day, a copy of the request 

for entry of default was mailed to Sipperley at the address where 

he was served.

On April 5, 2019, Sipperley entered a special appearance 

and filed what would be the first of a series of three motions 

attacking the default and subsequent default judgment. 

Sipperley’s initial motion sought to quash service of summons for 

lack of personal jurisdiction due to a lack of minimum contacts 

necessary to subject him, a nonresident, to personal jurisdiction 

in California. The motion to quash was supported by Sipperley’s 

declaration asserting his lack of contacts with California.

Astra opposed the motion to quash and filed a declaration 

stating that Sipperley had solicited Astra, a California company, 

to enter into their partnership agreement, and that Sipperley had 

2 Sipperley has not disputed that he was personally served 

with the summons and complaint.
5

traveled to California to personally negotiate the agreement at 

Astra’s offices in Los Angeles.

The trial court issued a tentative ruling denying the motion 

to quash. Sipperley’s counsel did not appear at the hearing on 

the motion, and on May 7, 2019, the trial court adopted its 

tentative ruling as its decision in the matter. The trial court 

ruled that the entry of Sipperley’s default terminated his right to 

take any further affirmative steps in the litigation until such 

time as the default is set aside.

On May 6, 2019, one day before the trial court denied the 

motion to quash, Sipperley filed another motion, captioned a 

“Motion to Vacate Void Judgment” pursuant to section 473, 

subdivision (d), on the ground that the request for entry of 

default was void due to a lack of personal jurisdiction. This 

motion was based on the same grounds as the motion to quash. 

Sipperley argued he lacked the minimum contacts necessary to 

subject him to general personal jurisdiction in California and that 

his activities were insufficient to subject him to specific personal 

jurisdiction in California.

On the same date, May 6, 2019, Astra filed a request for 

entry of a default judgment in the amount of $970,920. On May 

13, 2019, the trial court entered a default judgment in that sum 

pursuant to Astra’s written declaration.

On June 18, 2019, Astra filed opposition to Sipperley’s 

pending motion to vacate the default judgment. Astra’s papers 

included the declarations of two members of Astra, namely, 

Hugo Cabrera and Astred Rodriguez. Their opposing 

declarations recounted a meeting with Sipperley in 2008, when 

he visited Astra’s offices in Los Angeles to negotiate the 

partnership agreement.
6

On July 1, 2019, the trial court denied Sipperley’s motion to 

vacate the default judgment, finding that “Sipperley 

[purposefully] directed his activities at Astra, a California 

resident[,] because he solicited, negotiated, and entered into a 

partnership agreement with Astra by contacting it in California 

at Astra’s office in Los Angeles and this action [for] a breach of 

the partnership agreement and breach of fiduciary duty directly 

relate[s] to and arise[s] out of Sipperley’s activities in California.”

3. Sipperley’s third motion, which is the focus of this 

appeal.

On July 5, 2019, Sipperley filed a third motion, similarly 

captioned “Motion to Set Aside Default Judgment Pursuant to 

CCP § 473(d).” The trial court’s order granting the motion is the 

subject of this appeal.

In the motion, Sipperley contended the default judgment 

was void because Astra was a suspended limited liability 

company as of April 11, 2018, one month before it filed this action 

against Sipperley, and that it remained suspended by both the 

California Secretary of State and the California Franchise Tax 

Board (FTB). Additionally, Sipperley argued the $970,920 

default judgment must be set aside as void because it exceeded 

the $700,000 demand in Astra’s complaint.

In opposition, Astra argued that Sipperley lacked standing 

to raise the issue of Astra’s lack of capacity because his default 

had been entered in the action. However, even if the court were 

to conclude that Sipperley could raise the issue of Astra’s lack of 

capacity, Sipperley could not prevail on this issue because Astra 

had paid all past due taxes and had been restored to active status 

by both the Secretary of State and the FTB, and the 

reinstatement validated any procedural steps taken by Astra 
7

while it was under suspension. Astra’s papers included a 

Certificate of Revivor from the FTB, which showed that effective 

July 23, 2019, Astra had been relieved of its suspension and was 

in good standing, as well as a page from the website of the 

Secretary of State that similarly showed that Astra had been 

restored to active status.

With respect to the amount of the default judgment, Astra 

contended Sipperley could not have been surprised by the amount 

of the award because Astra’s complaint sought “general damages 

‘in an amount not less than $650,000, according to proof at 

trial.’ ” However, if the court were to conclude that the default 

judgment exceeded the prayer in Astra’s complaint, “the court 

should reduce the judgment to $700,000, which represents the 

express amount of general and special damages alleged in the 

complaint.”

On August 6, 2019, after hearing the matter and taking it 

under submission, the trial court issued an order vacating the 

default judgment in its entirety because Astra’s corporate status 

was suspended both at the time it commenced the action and at 

the time it obtained the default judgment. The trial court 

concluded: “[Astra] was suspended by the California Secretary of 

State on April 11, 2018 before it filed its complaint on May 25, 

2018. [Astra] was not relieved of suspension until July 23, 2019 

. . . which was after [the] default judgment was entered on May 

13, 2019. Therefore, [Astra] did not have capacity to file its 

complaint nor [to] have [a] default judgment entered in its favor.” 

Accordingly, the trial court granted Sipperley’s motion to set 

aside the default judgment as void, pursuant to section 473, 

subdivision (d).
8

On August 20, 2019, Astra filed a timely notice of appeal 

from the order.3

CONTENTIONS

Astra’s sole contention on appeal is that the trial court 

erred in vacating the default judgment, given the reinstatement 

of Astra’s corporate status.

However, the threshold issue is whether Astra’s lack of 

capacity, even if established, would be a basis for setting aside 

the default judgment as void, pursuant to section 473, 

subdivision (d). We also address whether the default judgment is 

void to the extent it exceeded the demand in Astra’s complaint.4

DISCUSSION

1. Limitations on setting aside a judgment under section 

473, subdivision (d); standard of appellate review.

“Section 473, subdivision (d), provides a trial court ‘may, on 

motion of either party after notice to the other party, set aside 

any void judgment or order.’ ‘[I]nclusion of the word “may” in the 

language of section 473, subdivision (d) makes it clear that a trial 

court retains discretion to grant or deny a motion to set aside a 

void judgment [or order].’ (Cruz v. Fagor America, Inc. (2007) 146 

3 An order granting a statutory motion to vacate or set aside 

a default judgment is appealable under section 904.1, subdivision 

(a)(2) as an order made after final judgment. (County of 

Stanislaus v. Johnson (1996) 43 Cal.App.4th 832, 834; see 

Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs 

(The Rutter Group 2019) ¶¶ 2:165, 2:166.)

4 With respect to these latter issues, pursuant to 

Government Code section 68081, the parties were directed to file 

supplemental letter briefs, which this court has read and 

considered.
9

Cal.App.4th 488, 495 [(Cruz)].) However, the trial court ‘has no 

statutory power under section 473, subdivision (d) to set aside a 

judgment [or order] that is not void . . . .’ (Id. at pp. 495–496.) 

Thus, the reviewing court ‘generally faces two separate 

determinations when considering an appeal based on section 473, 

subdivision (d): whether the order or judgment is void and, if so, 

whether the trial court properly exercised its discretion in setting 

it aside.’ (Nixon Peabody LLP v. Superior Court (2014) 230 

Cal.App.4th 818, 822.) The trial court’s determination whether an 

order is void is reviewed de novo; its decision whether to set aside 

a void order is reviewed for abuse of discretion. (Ibid.; see also 

Cruz, at p. 496.)” (Pittman v. Beck Park Apartments Ltd. (2018) 

20 Cal.App.5th 1009, 1020, italics added.)

A judgment is void if the court “ ‘lack[s] fundamental 

authority over the subject matter, question presented, or party.’ ” 

(Lee v. An (2008) 168 Cal.App.4th 558, 565, quoting In re 

Marriage of Goddard (2004) 33 Cal.4th 49, 56; accord, People v. 

North River Insurance Co. (2020) 48 Cal.App.5th 226, 233 [a 

judgment is void only when the court entering that judgment 

lacked jurisdiction in a fundamental sense due to the entire 

absence of power to hear or determine the case resulting from the 

absence of authority over the subject matter or the parties].)5

When the trial court “has jurisdiction over the party and the 

questions presented, but acts in excess of its defined power, the 

judgment is [merely] voidable, not void. (In re Marriage of 

Goddard, supra, 33 Cal.4th [at p.] 56.)” (Lee v. An, supra, 

5 In the instant case, there is no contention that the trial 

court lacked subject matter jurisdiction or jurisdiction over the 

parties. The issue before us is purely the legal effect of Astra’s 

earlier incapacity. 
10

168 Cal.App.4th at p. 566.) When a judgment is merely voidable, 

a party is not entitled to relief under section 473, subdivision (d). 

(Lee v. An, at p. 566.)

2. Lack of capacity is merely a technical objection that is 

waived if not properly pled, rather than a basis for setting aside a 

judgment as void.

Upon de novo review, as explained below, we conclude the

trial court erred as a matter of law in concluding that Astra’s lack 

of capacity at the time it filed suit and at the time it obtained the 

default judgment rendered the judgment void. Corporate 

incapacity is merely a technical objection that is waived if not 

properly pled, rather than a basis for setting aside a judgment as 

void.

a. General principles.

“ ‘There is a difference between the capacity to sue, which is 

the right to come into court, and the standing to sue, which is the 

right to relief in court.’ [Citation.] ‘Incapacity is merely a legal 

disability, such as infancy or insanity, which deprives a party of 

the right to come into court. The right to relief, on the other 

hand, goes to the existence of a cause of action.’ ” (Color-Vue, Inc. 

v. Abrams (1996) 44 Cal.App.4th 1599, 1604 (Color-Vue).) 

Suspension of corporate powers results in a lack of capacity to 

sue, rather than a lack of standing to sue. (Id. at pp. 1603–1604.)

A corporation that has had its powers suspended for 

nonpayment of taxes lacks legal capacity to prosecute or defend a 

civil action during its suspension. (Tabarrejo v. Superior Court

(2014) 232 Cal.App.4th 849, 861–862 (Tabarrejo).) However, 

“ ‘[c]orporate incapacity is nothing more than a legal disability, 

depriving the party of the right to come into court and represent 

its own interests. As such, lack of capacity is not a jurisdictional 
11

defect and is waived if not properly raised. [Citation.] . . . . Thus, 

the suspended status of corporate powers at the time of filing suit 

does not impede the trial court’s jurisdiction to proceed, nor does 

a suspension after suit commences but before rendition of 

judgment deprive the court of jurisdiction or render the judgment 

void.’ [Citations.]” (Id., at p. 863, italics added; accord, Traub Co. 

v. Coffee Break Service, Inc. (1967) 66 Cal.2d 368, 371 (Traub) 

[“the suspended status of corporate powers at the time of filing of 

action by a corporation does not affect the jurisdiction of the court 

to proceed”]; American Alternative Energy Partners II v. 

Winridge, Inc. (1996) 42 Cal.App.4th 551, 559 [“Lack of capacity 

is not a jurisdictional defect and must be properly raised or the 

objection may be waived”]; Weil & Brown, et al., Cal. Prac. Guide: 

Civ. Pro. Before Trial (The Rutter Group 2020) ¶ 2:81 [“lack of 

capacity is not a jurisdictional defect or an element of a cause of 

action; it is a technical objection that must be timely raised or is 

waived”].)6

Rather than amounting to a jurisdictional defect, a

corporation’s incapacity by reason of a suspension of its powers 

for nonpayment of taxes is merely a plea in abatement. (Traub, 

supra, 66 Cal.2d at p. 370.) Such a plea “ ‘must be raised by 

defendant at the earliest opportunity or it is waived.’ ” (ColorVue, supra, 44 Cal.App.4th at p. 1604, italics added; accord, 

V & P Trading Co., Inc. v. United Charter, LLC (2012) 212 

Cal.App.4th 126, 133 (V & P Trading).) Further, the lack of 

6 Lack of standing, by contrast, is not waived by a failure to 

timely object, and a plaintiff’s lack of standing, which goes to the 

existence of a cause of action, may be raised at any time, even for 

the first time on appeal. (Color-Vue, supra, 44 Cal.App.4th at 

p. 1604.)
12

capacity to sue “ ‘is a technical objection and must be pleaded 

specifically.’ ” (Color-Vue, at p. 1604.) The proper time to raise a 

plea in abatement is in the original answer or by demurrer at the 

time of the answer. (Ibid.)7

b. Sipperley’s objection that Astra lacked the capacity 

to sue is not cognizable on a motion under section 473, subdivision 

(d), to set aside the default judgment as void.

The time for Sipperley to have raised his objection that 

Astra lacked the capacity to sue would have been in an answer or 

demurrer to the original complaint. (Color-Vue, supra, 44 

Cal.App.4th at p. 1604.) However, Sipperley failed to respond to 

the summons and complaint, resulting in the entry of his default. 

The clerk’s entry of default, unless vacated, permanently 

precludes the filing of an answer or demurrer. (Parish v. Peters

(1991) 1 Cal.App.4th 202, 209, fn. 8.) Thus, the entry of default 

terminated Sipperley’s opportunity to file a responsive pleading 

asserting Astra’s lack of capacity.

Having failed to assert Astra’s lack of capacity by way of an 

answer or demurrer, Sipperley moved under section 473, 

subdivision (d), to set aside the default judgment as void based on 

Astra’s incapacity. However, as we have discussed, incapacity is 

7 “A defendant that fails to plead the plaintiff’s lack of 

capacity to sue in its answer at the outset of an action may seek 

leave to amend the answer to add that objection, but to succeed 

on such a motion the defendant must make ‘some showing 

tending to relieve it from the effect of the [original] waiver,’ such 

as a showing ‘that the defendant had acquired information of the 

facts subsequent to the filing of the original answer, or, if it then 

knew of them, its failure to interpose them was inadvertent.’ 

[Citation.]” (V & P Trading, supra, 212 Cal.App.4th at p. 134, 

fn. 2.)
13

merely a technical objection that is waived if not specifically pled 

at the outset (Color-Vue, supra, 44 Cal.App.4th at p. 1604)—it is 

not a jurisdictional defect that would be a basis for setting aside a 

default judgment as void. Therefore, the trial court erred as a 

matter of law in setting aside the default judgment as void based 

on Astra’s corporate suspension.8

However, the issue remains as to whether the default 

judgment is void insofar as it exceeded the demand in Astra’s 

complaint. We now turn to that issue.

3. The default judgment is void to the extent it exceeded the 

$700,000 demand in Astra’s complaint.

a. General principles.

Section 580 provides in relevant part that “[t]he relief 

granted to the plaintiff, if there is no answer, cannot exceed that 

demanded in the complaint.” The primary purpose of this section 

is to ensure “that defendants in cases which involve a default 

judgment have adequate notice of the judgments that may be 

taken against them.” (Becker v. S.P.V. Construction Co. (1980) 

27 Cal.3d 489, 493 (Becker).) A default judgment “that violates 

section 580 is void as beyond a court’s ‘fundamental 

jurisdiction.’ ” (Airs Aromatics, LLC v. CBL Data Recovery 

Technologies, Inc. (2018) 23 Cal.App.5th 1013, 1022 (Airs 

Aromatics).)

The amount demanded in the complaint is determined both 

from the prayer and from the damages allegations of the 

complaint. (National Diversified Services, Inc. v. Bernstein (1985) 

8 Because Astra’s suspension was not a proper basis for 

moving to set aside the default judgment as void, it is 

unnecessary to address whether Astra’s revivor retroactively 

validated the default judgment.
14

168 Cal.App.3d 410, 417–418.) A complaint’s demand for 

damages “in excess of” a certain sum does not provide notice of 

unlimited damages. (Electronic Funds Solutions, LLC v. Murphy

(2005) 134 Cal.App.4th 1161, 1173–1174.) Thus, for example, a 

prayer for “damages ‘in excess of $20,000’ ” did not provide 

adequate notice of defendants’ potential liability for $26,457 

(Becker, supra, 27 Cal.3d at pp. 493–494), and an allegation of 

damages exceeding the $25,000 jurisdictional threshold supports 

a default judgment only up to that amount. (Air Aromatics,

supra, 23 Cal.App.5th at pp. 1018–1019.)

However, a default judgment is void only as to the excess

amount. (Becker, supra, 27 Cal.3d at pp. 494–495.) “Ordinarily 

when a judgment is vacated on the ground the damages awarded 

exceeded those pled, the appropriate action is to modify the 

judgment to the maximum amount warranted by the complaint.” 

(Ostling v. Loring (1994) 27 Cal.App.4th 1731, 1743, italics 

omitted; see Weil & Brown et al., supra, ¶ 5:257.)

b. The complaint’s demand for damages warrants a 

default judgment in the reduced amount of $700,000.

On the first cause of action, which sought declaratory relief, 

Astra sought a judicial determination that Sipperley’s $320,365 

New York judgment, and the companion California judgment, 

were “void, invalid and unenforceable and should be vacated and 

set aside” because Sipperley failed to serve Astra with a copy of 

the summons and complaint in the New York action.

On both the second and third causes of action, in which 

Astra pled claims against Sipperley for breach of partnership 

agreement and breach of fiduciary duty, Astra sought “general 

damages . . . in an amount not less than $650,000.00” and 

“incidental damages . . . in an amount not less than $50,000.00.” 
15

These figures appeared both in the substantive allegations of the 

complaint and in the prayer. The $650,000 represented Astra’s 

alleged damages resulting from the loss of the right to maintain 

an outdoor advertising sign on the subject property, and the 

$50,000 represented Astra’s alleged damages consisting of the 

attorney fees and costs that Astra incurred in defending against 

the New York landlord’s unlawful detainer action. Thus, the 

maximum amount of damages warranted by the complaint is 

$700,000.

However, in its request for entry of a default judgment, 

Astra requested $970,920, including $320,565 to compensate 

Astra for the New York judgment that Sipperley had obtained.9 

The trial court entered the default judgment as requested, in the 

amount of $970,920.

In light of the amount Astra demanded in its complaint, as 

determined both from the prayer and from the damages

allegations (National Diversified Services, Inc. v. Bernstein,

supra, 168 Cal.App.3d at pp. 417–418), the default judgment was 

excessive. The trial court erred in including the amount of the 

New York judgment in the amount of damages that it awarded to 

Astra because Astra’s complaint did not seek an award of 

damages on account of the New York judgment. With respect to 

the New York judgment, Astra’s complaint solely requested a 

judicial declaration that the New York judgment was “void, 

invalid and unenforceable.”

9 We note that in moving to set aside the default judgment 

below, Sipperley asserted that Astra had never paid the $320,565 

New York judgment and therefore Astra could not claim that it 

had sustained special damages as a consequence of the New York 

judgment. That issue is beyond the scope of this appeal.
16

As we have determined, the maximum amount of damages 

warranted by Astra’s complaint is $700,000: $650,000 for the 

loss of the right to maintain the sign; and $50,000 for the expense 

of defending against the unlawful detainer action. On remand, 

the trial court is directed to enter a new default judgment in that 

reduced amount. (Becker, supra, 27 Cal.3d at p. 495; Ostling v. 

Loring, supra, 27 Cal.App.4th at p. 1743.)10

10 As noted, in its opposition below to Sipperley’s motion to 

vacate the default judgment, Astra argued that if the court were 

to conclude that the default judgment exceeded the prayer in 

Astra’s complaint, “the court should reduce the judgment to 

$700,000, which represents the express amount of general and 

special damages alleged in the complaint.”
17

DISPOSITION

The August 6, 2019 order granting Sipperley’s motion to 

vacate the default judgment in its entirety is reversed and the 

matter is remanded to the trial court with directions to enter a 

new default judgment in the amount of $700,000, consistent with 

the demand in Astra’s complaint. The parties shall bear their 

respective costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL 

REPORTS

EDMON, P. J.

We concur:

EGERTON, J.

DHANIDINA, J.