Filed 7/11/14 Schneider Nat. v. Ellis CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION THREE

SCHNEIDER NATIONAL, INC., et al.,

 Plaintiffs and Respondents,

v.

WALTER L. ELLIS,

 Defendant and Appellant.

 G049501

 (Super. Ct. No. CIVDS906308)

 O P I N I O N

Appeal from an order of the Superior Court of San Bernardino County, 

John M. Pacheco, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed in 

part; reversed in part and remanded with directions. 

Walter L. Ellis, in pro. per., for Defendant and Appellant.

Law Offices of Tharpe & Howell, David S. Binder and Eric Kunkel for 

Plaintiffs and Respondents.
2

Walter L. Ellis appeals from the order denying his motion to vacate default 

judgments obtained against him by his former employer, Schneider National, Inc., and 

Schneider National Carriers, Inc. (collectively Schneider) and one of Schneider’s 

employees, Jeff Ames. Schneider sued Ellis for libel arising from inflammatory Internet

postings made by Ellis after Schneider fired him. Ames sued for unlawful recording of 

two telephone conversations. Ellis represented himself in the litigation. The default 

judgments were obtained after Ellis’s answer was stricken as a discovery sanction. The 

default judgment obtained by Schneider on its libel cause of action awards Schneider 

$130,000 in compensatory damages and $560,000 in punitive damages, in addition to 

granting injunctive relief. The default judgment in favor of Ames awarded him a

statutory civil penalty of $10,000, and granted him injunctive relief as well. 

On appeal, Ellis contends the trial court abused its discretion by denying his 

Code of Civil Procedure section 473, subdivision (b),1 motion for relief. We conclude 

that although the trial court did not abuse its discretion, to the extent the default judgment 

in favor of Schneider awards it compensatory and punitive damages, the judgment 

violated Ellis’s due process rights and is void on its face because the complaint did not 

specify any amount of compensatory damages sought (only pleading damages according 

to proof), and Schneider’s service of a statement of damages did not comply with 

section 580’s notice requirements. Accordingly, we reverse the order denying the motion 

to vacate the default judgment in favor of Schneider and direct the trial court to modify 

that judgment to strike the award of compensatory and punitive damages on its libel 

cause of action. We otherwise reject Ellis’s contentions on appeal and affirm the order as 

it affects the default judgment in favor of Ames.

 

1 All further statutory references are to the Code of Civil Procedure, unless 

otherwise indicated.
3

FACTS & PROCEDURE

The Complaint

On April 30, 2009, Schneider and Ames filed a complaint against Ellis 

alleging causes of action on behalf of Schneider for libel and service mark infringement, 

and a cause of action on behalf of Ames (who was employed by Schneider as a “Driver 

Business Leader”) for unlawful recording of telephone communications. The libel cause 

of action alleged Ellis had been employed by Schneider as a truck driver but was fired in 

January 2009. Schneider alleged that commencing at the end of January 2009, Ellis 

began posting “scurrilous written material on the [I]nternet” falsely accusing Schneider 

and its employees of all sorts of nefarious conduct including “falsely imprisoning Ellis; 

intentionally assaulting and battering Ellis; and, wrongfully discharging Ellis.” (Original 

capitalization omitted.) He posted an article on the Internet titled “Schneider’s Unlawful 

Imprisonment of Blacks.” Ellis also placed Internet postings accusing Schneider of 

violating safety laws and employing selective pay practices. He accused Schneider of 

receiving government subsidies to train truck drivers but then not providing that training 

and thus defrauding the taxpayers. Ellis placed Internet postings accusing the 

Fontana Police Department of conspiring with Schneider to deprive African Americans 

of their constitutional rights, and of pressuring Ellis and other employees to comply with 

Schneider’s illegal policies. The service mark infringement cause of action alleged 

Schneider had a registered service mark and logo, which Ellis wrongfully used and 

published on his Internet posts. The unlawful recording cause of action alleged that on 

two occasions in January 2009, Ellis recorded confidential telephone conversations with 

Ames regarding work-related matters without Ames’s permission. It alleged Ames was 

entitled under Penal Code section 637.2, subdivision (a)(1), to statutory damages of 

$5,000 for each recording. 

The complaint prayed for relief as follows: On the libel cause of action, 

Schneider sought general and special damages “according to proof,” punitive damages, 
4

and injunctive relief enjoining Ellis from publishing false and defamatory statements 

about Schneider and directing him to remove all defamatory materials posted on the 

Internet. On the service mark infringement cause of action, Schneider sought injunctive 

relief prohibiting Ellis from using the name “‘Schneider’” in his Internet postings or 

infringing on Schneider’s service mark. It also sought disgorgement of any profits Ellis 

derived from infringing on Schneider’s service mark, treble Schneider’s actual damages 

for the infringement, and attorney fees. On the unlawful recording cause of action, the 

complaint sought injunctive relief enjoining Ellis from recording conversations without 

Ames’s consent or transmitting or posting any such conversations on the Internet and 

requiring Ellis to destroy any prohibited recordings. It also sought statutory penalties and 

attorney fees. 

On June 3, 2009, Ellis representing himself in propria persona filed an 

answer to the complaint, and Schneider and Ames’s fruitless efforts at obtaining 

discovery from Ellis began. (For convenience hereafter in this opinion we will generally 

refer to Schneider and Ames collectively and in the singular as Schneider, unless the 

context indicates otherwise.) In late December 2009, Schneider began filing discovery 

motions. Although Ellis did not comply with discovery requests, and frequently failed to 

appear at hearings on motions filed by Schneider, during this time he pursued several 

motions of his own. For example, in February 2010, while discovery was ongoing, Ellis 

filed a motion for judgment on the pleadings, which was denied as to the libel and 

unlawful recording causes of action, but granted without leave to amend as to the service 

mark infringement cause of action. He also filed an unsuccessful motion to stay this 

action because of other pending litigation in which he was involved. He filed a 

section 170.6 peremptory challenge to the trial judge that was unsuccessful because it 

was untimely. And he filed an unsuccessful anti-SLAPP motion.

On March 16, 2010, the trial court granted eight discovery motions filed by 

Schneider and ordered Ellis to pay total sanctions of $2,400. Ellis did not appear at the 
5

hearing. On April 28, 2010, the trial court granted Schneider’s motion to compel Ellis’s 

attendance at his deposition set for May 18. Ellis did not appear at the hearing, calling in

to the court stating he was ill. On May 18, the court issued a preliminary injunction 

enjoining Ellis from communicating with Schneider’s employees, entering on 

Schneider’s property, or making unauthorized recordings of court proceedings. 

Ellis did not appear at his deposition as ordered, claiming he was ill. On 

June 18, 2010, Schneider filed an ex parte application, set for hearing on June 21, for an 

order imposing further monetary sanctions and terminating sanctions against Ellis due to 

his failure to appear at his deposition and his failure to comply with the court’s prior 

discovery orders. On the same date, Schneider filed seven separate motions each seeking 

further monetary and terminating sanctions for Ellis’s refusal to comply with the prior 

discovery orders. Ellis did not appear at the June 21 hearing, again calling in to the court 

stating that he was ill. The court granted Schneider’s ex parte request to shorten time for 

hearing on the discovery motions and set the hearing for July 13, 2010. It ordered Ellis to 

provide proof regarding his representations he had a medical condition that prevented 

him from appearing at his deposition. 

Ellis did not appear at the July 13, 2010, hearing, and at that hearing, the 

trial court ordered his answer stricken. The court signed and entered orders prepared by 

Schneider stating Ellis’s answer was stricken and “[a] default judgment is hereby entered 

against . . . [Ellis].” The court ordered additional monetary discovery sanctions against 

Ellis. On October 26, 2010, Schneider filed a request for entry of default and request for 

court judgment against Ellis, stating it was seeking general damages of $150,277, and the 

court clerk entered a default on that date. 

On November 3, 2010, the trial court found Ellis in contempt because he 

was not complying with the May 2010 preliminary injunction. It sentenced him to 

five days in jail, stayed the sentence, and ordered summary probation. 
6

On December 15, 2010, Schneider filed its default prove-up packet. The 

default package included a statement of damages filed with the court on December 15. 

The statement of damages stated Ames was seeking $10,000 in statutory damages, and 

Schneider was seeking $130,000 in general damages, and $560,000 in punitive damages,

for defamation. The statement of damages was accompanied by a proof of service 

indicating it was served by mailing to Ellis on October 22, 2010. The trial court set a 

default prove-up hearing for August 5, 2011. 

On August 5, 2011, the court entered two separate judgments. The first 

judgment was for Schneider (hereafter the Schneider judgment). It awarded Schneider its 

requested $130,000 in compensatory damages and $560,000 in punitive damages, plus 

$10,277 for previously ordered but unpaid sanctions, and $1,268 in costs. The Schneider 

judgment also granted a permanent injunction enjoining Ellis from further publishing 

specified articles and requiring him to remove those articles from the Internet, and 

enjoining Ellis from communicating with Schneider’s employees, entering Schneider’s

property or making unauthorized recordings of Schneider’s employees. The second 

judgment in favor of Ames (the Ames judgment) awarded him the statutory civil penalty 

of $10,000 pursuant to Penal Code section 637.2, and permanently enjoined Ellis from 

making unauthorized recordings of Ames or any other Schneider employee. Notice of 

entry of judgments was served on Ellis on August 11, 2011. 

On September 27, 2011, Schneider filed another motion for an order to 

show cause (OSC) re contempt because Ellis had not yet removed the defamatory 

material from his Internet Web site. An OSC re contempt was issued and Ellis was 

ordered to appear for criminal arraignment. On December 27, 2011, the court issued a 

second contempt order directing Ellis to remove the defamatory material from the 

Internet.
7

Motion to Set Aside Default

On December 12, 2011, Ellis filed a motion to vacate the default judgments

entered on August 5, 2011, under section 473, subdivision (b), due to his excusable 

neglect and surprise. He also asserted the default judgments should be set aside due to 

fraud. Ellis asserted his medical condition (anxiety, depression, and hypertension) caused 

him to be negligent in promptly responding to Schneider’s discovery requests. His 

motion included almost 100 pages of medical records from the Veterans Affairs (VA)

Medical Center where now 73-year-old Ellis received medical care. The records detailed 

his extensive medical complaints and medications. Hi motion included a letter dated 

January 21, 2010, from a VA staff psychiatrist explaining Ellis was being treated for a 

panic disorder and he would experience increased anxiety under any kind of stress and 

might not be able to properly represent himself in a stressful situation. Ellis also asserted 

he was “surprised” by having been sued in the first place. And he asserted Schneider had 

falsely represented to the court it was in compliance with state and federal law and Ellis 

had harmed Schneider’s reputation, which constituted as fraud requiring the default 

judgments be set aside. Ellis asserted he had now received treatment for his medical 

condition, and gotten over the shock of being sued by his former employer, and was 

ready to defend himself in the litigation. 

Schneider opposed the motion arguing: Ellis was not entitled to 

discretionary relief because he had not demonstrated any excusable neglect or surprise; 

He was not entitled to mandatory relief because he was a pro. per. litigant; The motion 

was untimely because it was not brought in a reasonable time; and Ellis had not 

demonstrated any fraud. 

On January 10, 2012, the trial court denied Ellis’s motion to set aside the 

default judgments. The court found it lacked jurisdiction to grant the motion because the 

motion was filed more than six months after the default was entered and Ellis had 
8

knowledge of the entry of default. The court further found the motion would fail on its 

merits as well because Ellis had not demonstrated excusable neglect, surprise, or fraud. 

Appeal

On January 17, 2012, Ellis filed his notice of appeal. He purported to 

appeal from not only the January 10, 2012, order denying his motion to vacate the default 

judgments, but also from numerous earlier orders including the OSC re contempt, the 

order denying his section 170.6 peremptory challenge, and the order denying his motion 

for judgment on the pleadings. As it relates to the default judgments, Ellis also purported 

to appeal from the July 13, 2010, order striking his answer to the complaint, the 

October 26, 2010, entry of default, and the August 5, 2011, default judgments. On 

September 17, 2012, this court granted Schneider’s motion to dismiss the appeal as to all 

judgments and orders except the January 10, 2012, order denying Ellis’s motion to vacate 

the default judgments. 

PENDING MOTIONS

1. Ellis’s Request for Judicial Notice

On October 12, 2012, Ellis filed a request for judicial notice of court 

records in other proceedings. They include pleadings and other documents pertaining to 

a federal court action asserting wage and hour claims against Schneider, and the 

complaints in two state court actions filed by other plaintiffs against Schneider claiming 

discrimination. The request for judicial notice was filed in conjunction with a request by 

Ellis to stay this appeal until resolution of those other actions. This court denied Ellis’s 

request for a stay and to the extent his request for judicial notice pertained to the appeal, 

reserved ruling on the request for judicial notice.

In his opening brief, Ellis in passing renews his request for judicial notice

of the documents. His brief, however, is devoid of any explanation as to how any of 

them bear on any of the issues in this appeal. Accordingly, his request for judicial notice 

is denied.
9

2. Schneider’s Request for Judicial Notice

On January 25, 2013, Schneider filed a request for judicial notice of several

documents including: a print out of the docket in a federal court action against 

Central Refrigerated Systems Inc. in which Ellis is a plaintiff; a labor claim filed by Ellis 

and other former Schneider employees; a notice that Ellis intervened in another federal 

court action; and printouts of e-mails dated May 6, 2010. This court reserved ruling on 

Schneider’s request for judicial notice. 

In its respondent’s brief, Schneider asserts these documents are relevant to 

demonstrate Ellis was actively litigating other matters during the same time he feigned an 

inability to respond to discovery in this case. We deny Schneider’s request for judicial 

notice in its entirety because none of the proffered evidence was before the trial court 

when it issued the rulings that are the subject of this appeal. “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. [Citations.]” (Vons Companies, Inc. v. 

Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.)

DISCUSSION

Ellis makes three arguments on this appeal from the order denying his 

motion to set aside the default judgments against him. One has significant merit—to the 

extent the default judgment in favor of Schneider (i.e., the Schneider judgment) awards 

Schneider compensatory and punitive damages on its libel cause of action, the judgment 

is void as a violation of Ellis’s due process rights because he was not given notice of the 

amount of the claimed damages before his default was taken. Ellis also contends the trial 

court erred by denying his motion for discretionary relief from the default judgments 
10

under section 437, subdivision (b), for two reasons—he demonstrated excusable neglect 

and his motion was timely filed. To the extent those arguments affect the other parts of 

the Schneider judgment or the Ames judgment, we address and reject Ellis’s contentions. 

1. The Default Judgment’s Award of Compensatory and Punitive Damages to Schneider

is Void as in Excess of the Trial Court’s Jurisdiction

Ellis contends the default judgments are void because the complaint did not 

plead the amount of damages sought, and it was not amended before his default was 

taken, thus violating his due process rights. Schneider responds that any notice 

requirements were satisfied by service of a statement of damages on Ellis stating the 

amount of compensatory and punitive damages it sought on its libel cause of action. We 

conclude the award of compensatory and punitive damages to Schneider in the Schneider 

judgment violated Ellis’s due process rights because a statement of damages does not 

satisfy section 580’s notice requirements in a non-personal injury/wrongful death action. 

Moreover, the statement of damages served long after the defaulting event—the court’s 

order striking Ellis’s answer as a discovery sanction and ordering a default judgment be 

entered against him—and not served until a couple days before the court clerk formally 

entered default did not satisfy section 580’s notice requirements. 

 a. Legal Principles

“‘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.’ [Citation.]” (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1520 

(Van Sickle).)
11

“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. (§ 425.10, subd. (a)(2).)” (Van Sickle, supra, 

196 Cal.App.4th at p. 1520, italics added.) An exception applies where a complaint seeks 

damages for personal injury or wrongful death, or seeks punitive damages. (§§ 425.11, 

425.115; Van Sickle, supra, 196 Cal.App.4th at p. 1521; Schwab v. Southern California 

Gas Co. (2004) 114 Cal.App.4th 1308, 1320 (Schwab).) In these cases, the plaintiff must 

provide this information by serving a separate written statement of damages described in 

section 425.11 (compensatory damages) and section 425.115 (punitive damages). 

(Van Sickle, supra, 196 Cal.App.4th at pp. 1520-1521.) “Sections 425.11 and 425.115 

provide methods for satisfying the due process requirement of notice while honoring the 

bar against pleading a specific amount of damages in the [specified circumstances].” 

(Id. at p. 1521.)

Consistent with these principles, the Legislature has provided that a default 

judgment “cannot exceed that demanded in the complaint, in the statement required by 

[s]ection 425.11, or in the statement provided for by [s]ection 425.115.” (§§ 580, 585, 

subds. (a), (b).) Sections 580 and 585 embody the due process requirement of reasonable 

notice, and “a default judgment greater than the amount specifically demanded is void as 

beyond the [trial] court’s jurisdiction.” (Greenup v. Rodman (1986) 42 Cal.3d 822, 826 

(Greenup); Van Sickle, supra, 196 Cal.App.4th at p. 1521.) Moreover, an entry of default 

is void if a required statement of damages was not served on the defendant before the 

default was taken. (Schwab v. Rondel Homes, Inc. (1991) 53 Cal.3d 428, 435; 

Van Sickle, supra, 196 Cal.App.4th at p. 1521; Schwab, supra, 114 Cal.App.4th at 

p. 1320; Matera v. McLeod (2006) 145 Cal.App.4th 44, 60-62 (Matera).) 

Although the Legislature did not establish a “‘hard and fast rule regarding 

the precise . . . timing of the service of the section 425.11 statement of damages,’” the 

courts require the notice must be served “a reasonable period of time before default may 
12

be entered.” (Schwab, supra, 114 Cal.App.4th at p. 1322, fn. omitted.) The key factor in 

determining whether proper notice has been given is whether the defendant had sufficient 

notice of the amount of claimed damages to permit a reasoned decision whether to take 

actions to respond to the claims.

These due process principles apply equally whether the default results from 

the failure to answer or from a discovery terminating sanction, as is the case here. 

(Greenup, supra, 42 Cal.3d at pp. 827-829; Van Sickle, supra, 196 Cal.App.4th at 

p. 1521; Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1175; 

Schwab v. Southern California Gas Co., supra, 114 Cal.App.4th at p. 1320; Morgan v. 

Southern Cal. Rapid Transit Dist. (1987) 192 Cal.App.3d 976, 986, disapproved on 

another point in Schwab v. Rondel Homes, Inc., supra, 53 Cal.3d at p. 434.) The 

California Supreme Court held in Greenup, supra, 42 Cal.3d at pages 827-829, a 

defendant has a due process right to receive prior notice of the maximum amount of 

liability even where the default is the result of willful discovery abuses. Even 

“obstreperous” defendants “guilty of reprehensible conduct” are entitled to the due 

process protection of formal notice of their liability exposure in the event of a default. 

(Id. at p. 829.) “Such notice enables a defendant to exercise his right to choose--at any 

point before trial, even after discovery has begun--between (1) giving up his right to 

defend in exchange for the certainty that he cannot be held liable for more than a known 

amount, and (2) exercising his right to defend at the cost of exposing himself to greater 

liability.” (Ibid.; see Matera, supra, 145 Cal.App.4th at p. 60.) 

Because here the material facts pertaining to notice are undisputed, the 

issue of whether the “default judgment complied with constitutional and statutory 

requirements are questions of law as to which we exercise independent review.” 

(Falahati v. Kondo (2005) 127 Cal.App.4th 823, 828, fn. omitted.) And because it goes 

to the trial court’s jurisdiction, the claim a defendant was not given timely notice of the 

damages he faced before entry of default and default judgment can be raised for the first 
13

time on appeal. (Simke, Chodos, Silberfeld & Anteau, Inc. v. Athans (2011) 

195 Cal.App.4th 1275, 1286 [“[a] default judgment that violates section 580 is void; it 

can be challenged and set aside at any time”]; see also Matera, supra, 145 Cal.App.4th at 

p. 59; National Diversified Services, Inc. v. Bernstein (1985) 168 Cal.App.3d 410, 417.)

b. Service of a Statement of Damages Cannot Substitute for an Amended Complaint in a 

Non–Personal Injury/Wrongful Death Case

The complaint did not specify any amount of compensatory damages 

Schneider sought from Ellis on its libel cause of action, instead pleading general and 

special damages “according to proof.” In seeking a default and default judgment, 

Schneider sought to satisfy section 580’s notice requirements by serving a statement of 

damages pursuant to section 425.11, specifying the amount of compensatory damages it 

claimed. Citing this court’s opinion in Electronic Funds Solutions, LLC v. Murphy

(2005) 134 Cal.App.4th 1161, 1178 (Electronic Funds), we invited the parties to file 

supplemental letter briefs addressing the following issue, “Was the statement of damages 

insufficient to satisfy . . . section 580’s notice requirements, rendering void the judgment 

awarding compensatory damages on Schneider’s libel cause of action, because this was 

not a personal injury or wrongful death action?” Ellis’s supplemental brief repeats the 

argument made in his opening brief—because the complaint did not plead the 

compensatory damages sought, the judgment is void. Schneider’s supplemental brief 

argues the statement of damages satisfied section 425.115’s requirements for a statement 

of punitive damages, which fundamentally skirts the issue upon which we requested 

briefing.

Serving a statement of damages in lieu of pleading the compensatory

damages sought in a complaint does not satisfy section 580’s notice requirements with 

regards to Schneider’s compensatory damages claim because a libel action brought by a 

corporation is not a personal injury or wrongful death action. (See Roemer v. C.I.R.
14

(9th Cir. 1983) 716 F.2d 693, 699, fn. 4 [“Although a corporation may sue for certain 

types of defamation, a corporation by its very nature cannot suffer a personal injury”].) 

Electronic Funds, supra, 134 Cal.App.4th 1161, is directly on point. In that 

case, plaintiffs’ complaint alleged various non-personal injury/wrongful death causes of 

action and sought compensatory damages “‘in an amount in excess of $50,000 and 

according to proof.’” (Id. at p. 1168.) A default judgment entered after defendants’

answer was struck as a discovery sanction awarded plaintiffs over $8 million in 

compensatory damages based on a statement of damages. We reversed agreeing with 

defendants “the statement of damages served under section 425.11 did not provide 

effective notice that plaintiffs sought compensatory damages in excess of that pleaded in 

the complaint because section 425.11 applies only to personal injury or wrongful death 

actions.” (Electronic Funds, supra, 134 Cal.App.4th at p. 1176.) “‘“[T]he [trial] court’s 

jurisdiction to render default judgments can be exercised only in the way authorized by 

statute.” [Citation.] . . . “‘[C]ertainly no statutory method of procedure or limitation on 

power could be more clearly expressed than that set forth in section 580 . . . .”

[Citation.]’ [Citation.] Accordingly, default judgments rendered in violation of section 

580 are void. [Citation.] In this vein, courts have held that due process requires not only 

actual notice of the damages being sought, but ‘formal notice.’ [Citation.] As one court 

observed: ‘Section 580 constitutes a statutory expression of the mandates of due process, 

which require “formal notice of potential liability.” [Citations.]’ [Citation.] Thus, courts 

have subjected section 580 to a ‘strict construction.’ [Citation.] Strictly construed, 

serving a statement of damages cannot satisfy section 580 in an action not involving 

personal injury or wrongful death.” (Electronic Funds, supra, 134 Cal.App.4th at p. 

1176; see also Sole Energy Co. v. Hodges (2005) 128 Cal.App.4th 199, 206, fn. 4 

[statements of damages used only in personal injury and wrongful death cases where 

plaintiff may not state damages sought in the complaint; in all other cases on default 

judgment plaintiff is limited to damages specified in the complaint]; see also Weil & 
15

Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2014) 

§ 5:241.5.)

In its supplemental briefing, Schneider asserts “[t]here is a good reason 

why damages were not set forth in [its complaint]” namely that unless Ellis participated

in discovery it would not be able to “assess how many libelous [I]nternet postings” he 

made and thus Schneider would not have an “adequate accounting of [its] damages . . . .”

In its original respondent’s brief, Schneider cited Finney v. Gomez (2003) 

111 Cal.App.4th 527, 543-544 (Finney), for the proposition that in any action in which a 

plaintiff has not yet ascertained its damages, it may satisfy section 580’s notice 

requirements via a statement of damages. That reliance is utterly misplaced. Finney

expressly applies only with regard to a partition and accounting action, which this action 

clearly is not. (Finney, supra, 111 Cal.App.4th at pp. 543-544.) Schneider has offered 

no cogent reason for ignoring the strict due process requirements of section 580 that the 

amount of compensatory damages cannot exceed the amount specified in the complaint.

In short, because this was not a personal injury or wrongful death action, 

Schneider could not avoid section 580 by serving a statement of damages in lieu of 

pleading in its complaint the amount of compensatory damages it sought. The complaint 

did not specify any amount of damages sought, accordingly, the award of compensatory 

damages is void as in excess of the trial court’s jurisdiction. Furthermore, although 

notifying Ellis via a statement of damages of the amount of punitive damages Schneider 

sought was correct (§ 425.10, subd. (b)), the punitive damages award falls with the 

compensatory damages. (Kizer v. County of San Mateo (1991) 53 Cal.3d 139, 147

[actual damages absolute predicate for award of punitive damages]; see also Fullington v. 

Equilon Enterprises, LLC (2012) 210 Cal.App.4th 667, 674; Fassberg Construction Co. 

v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 758; Berkley v. 

Dowds (2007) 152 Cal.App.4th 518, 530.)
16

c. The Statement of Damages was not Timely Served

As an alternate basis for finding the judgment awarding compensatory and 

punitive damages to Schneider violated Schneider’s due process rights, we conclude the 

statement of damages was not timely served. 

Where, as here, a defendant’s default results from a discovery terminating 

sanction striking a defendant’s answer, it is the striking of the answer that is the 

defaulting event because “[t]he striking of a defendant’s answer as a terminating sanction 

leads inexorably to the entry of default.” (Matera, supra, 145 Cal.App.4th at p. 62.) 

Matera is directly on point. In Matera, the court held personal service of a statement of 

damages on defendants’ attorney two days before the court struck defendants’ answer and 

entered default pursuant to a motion for terminating sanctions was “not a reasonable 

period of time to apprise the defendants of their substantial potential liability for purposes 

of due process.” (Ibid., fn. omitted.) Conversely, in Electronic Funds, supra, 

134 Cal.App.4th at page 1178, this court held service of a “notice of punitive damages 

concurrently with [service of the] motion for terminating sanctions” was timely. (Italics 

added.)

Directing the parties to Matera, supra, 145 Cal.App.4th 44, our request for 

supplemental letter briefs asked the parties to address the following question, “Was the 

statement of damages insufficient to satisfy . . . section 580’s notice requirements, 

rendering void the judgment awarding compensatory and punitive damages on 

[Schneider’s] libel cause of action, because it was not served a reasonable time before 

Ellis’s answer was stricken as a terminating sanction?” Ellis’s supplemental brief argues 

Matera compels the conclusion the judgment is void. 

Schneider argues Matera is distinguishable because the defendants in 

Matera were represented by counsel, whereas Ellis defended himself in propria persona. 

Schneider argues that because he represented himself, Ellis knew of the dates on which 

discovery was due and he directly engaged in the deliberate “gamesmanship” that 
17

resulted in his answer being struck. This does not address the due process concerns 

surrounding the lack of timely notice concerning the substantial damages Ellis’s 

deliberate “gamesmanship” could result in. Again, as observed in Greenup, supra, 

42 Cal.3d at page 829, even “obstreperous” defendants “guilty of reprehensible conduct”

are entitled to the due process protection of formal notice of their liability exposure in the 

event of a default. And given the familiar refrain that self-represented litigants are not to 

be treated more favorably (see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985 [“A 

doctrine generally requiring or permitting exceptional treatment of parties who represent 

themselves would lead to a quagmire in the trial courts, and would be unfair to the other 

parties to litigation”]; Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543 

[“Pro. per. litigants are held to the same standards as attorneys”]), we cannot accept 

Schneider’s suggestion a self-represented litigant is to be treated more harshly and 

accorded fewer due process rights. (See Gamet v. Blanchard (2001) 91 Cal.App.4th 

1276, 1284 [pro. per. litigants entitled to treatment equal to that of represented party].) 

In this case, the due process violation is clear. Schneider did not serve a 

statement of damages at any time before the trial court ruled on the motion for a 

terminating sanction on July 13, 2010. At the July 13 hearing, the trial court specifically 

ordered Ellis’s answer stricken and ordered “a default judgment is hereby entered 

against . . . [Ellis].” It was not until over three months after it obtained the terminating 

sanction that placed Ellis in default, that Schneider for the first time notified Ellis it was 

seeking a $690,000 in combined compensatory and punitive damages against him. 

To the extent Schneider argues its service of a statement of damages a 

couple days before the clerk’s entry of default on October 26, 2010, was sufficient, we 

are unpersuaded. Although there was a subsequent formal entry of default by the court 

clerk, as in Matera, it was the July 13, 2010, order striking Ellis’s answer and ordering he 

be placed in default that was the critical date for the notice issue. Although certain steps 

needed to be taken after that order to make the entry of default effective, the order 
18

striking Ellis’s answer as a terminating sanction and ordering the entry of default 

judgment against him led inexorably to the formal entry of default, and thus required 

prior notice of the claimed damages. (See § 585, subds. (a), (b); Matera, supra, 

145 Cal.App.4th at p. 62.) Once Ellis was placed in default, he had no right to do 

anything more. “The entry of a default terminates a defendant’s rights to take any further 

affirmative steps in the litigation until either its default is set aside or a default judgment 

is entered.” (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 

381, 385.) A defaulted defendant has no standing to participate in the prove-up hearing, 

or to complain of the evidence introduced therein, other than to complain the damages 

awarded are excessive. (Ibid.; see also Sporn v. Home Depot USA, Inc. (2005) 

126 Cal.App.4th 1294, 1303; Ostling v. Loring (1994) 27 Cal.App.4th 1731, 1745.) 

Moreover, even if viewed in relation to the October 26 formal entry of 

default, due process was not satisfied. The statement of damages was served by being 

placed in the mail to Ellis on October 22, 2010, just four calendar days before the clerk 

formally entered default on October 26, 2010. In view of the July 13, 2010, order 

striking Ellis’s answer, rendering him a nonappearing party, any formal notice of the 

sizeable amount of compensatory and punitive damages Schneider claimed came far too 

late to give Ellis a last chance to change course and convince the court in opposition to 

the motion for terminating sanctions (which had already been granted) that he would take 

part in the litigation process. (See Matera, supra, 145 Cal.App.4th at pp. 60, 62

[statement of damages served two days before entry of default does not satisfy due 

process].) In conclusion, the punitive and compensatory damage award in the Schneider

judgment is void for lack of constitutionally reasonable notice of the amount demanded

given before Ellis’s answer was stricken as a terminating sanction.

2

 

2 In reaching these conclusions, we reiterate the cautionary advice given in 

Van Sickle, supra, 196 Cal.App.4th at pages 1530-1531, that a party seeking a 

terminating sanction should ensure a statement of damages has been filed to provide 
19

2. The Trial Court Did Not Otherwise Abuse its Discretion by Denying Ellis’s Motion for 

Relief under Section 473, subdivision (b)

Although we conclude the punitive and compensatory damage award in the 

Schneider judgment is void for lack of constitutionally reasonable notice of the amount 

demanded given before Ellis’s answer was stricken as a terminating sanction, the same 

cannot be said about the injunctive relief granted to Schneider, or the relief granted by the 

Ames judgment. There are no similar due process concerns regarding the Ames 

judgment or the injunctive relief parts of the Schneider judgment (or the parts of the 

Schneider judgment pertaining to previously awarded sanctions and costs). The 

complaint specifically alleged Ames sought the Penal Code section 637.2, 

subdivision (a)(1), civil penalty of $5,000 for each of the two unlawfully recorded 

telephone conversations. The complaint carefully alleged the specific defamatory 

Internet postings and articles, and carefully alleged the nature of the injunctive relief 

Schneider and Ames sought. On appeal, Ellis makes no due process arguments directed 

at these parts of the judgments. Thus, they are affected only if we conclude the trial court 

otherwise abused its discretion by denying Ellis’s motion to vacate his default. It did not. 

Ellis sought relief from the default judgments under section 473, 

subdivision (b), on the grounds they were the result of his excusable neglect or surprise, 

and on the grounds they were the result of fraud. “A default and default judgment may 

be set aside pursuant to the provisions of . . . section 473, subdivision (b), but the motion 

must be made within six months after entry of the default. After the time for requesting 

statutory relief under section 473 has passed, the court may set aside the default and 

judgment on equitable grounds. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 

 

sufficient notice to the defendant before the court rules on the motion. “If every plaintiff 

seeking to strike the defendant’s answer as a terminating sanction were to take this step, 

then precious time and resources . . . would not be wasted by the parties and the courts, as 

in this case, in litigating and adjudicating a default judgment that simply cannot stand.” 

(Ibid.)
20

981 . . . fn. omitted.)” (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42

(Manson).) The court’s ruling on a motion for relief from a default is reviewed for abuse 

of discretion. (In re Estate of Carter (2003) 111 Cal.App.4th 1139, 1154.)

To the extent Ellis sought relief under section 473, subdivision (b), the 

motion was untimely, and the trial court correctly determined it lacked jurisdiction 

because the motion was filed more than six months after Ellis’s default. (Manson, supra, 

176 Cal.App.4th at p. 42 [six-month time limit jurisdictional and “runs from entry of 

default, not entry of judgment”].) Here, Ellis’s answer was stricken July 13, 2010, and 

the court clerk formally entered his default October 26, 2010. His motion to set aside the 

default was not filed until December 12, 2011. Under either default date, Ellis’s motion 

was untimely.

Ellis contends a one-sentence document he filed on August 1, 2011, four 

days before the default judgments were entered, stating he “intends to move for an order 

vacating” the judgments satisfied the six-month limitation on filing a section 473 motion. 

It did not. The notice to which Ellis refers was filed over a year after his answer was 

stricken and over nine months after his formal default was entered. Furthermore, the case 

Ellis cites, In re Marriage of Eben-King (2000) 80 Cal.App.4th 92 (King), does not aid 

him. That case concerned the effect of the timely filing of a section 473 motion to vacate 

a default on the jurisdictional time limit for filing a notice of appeal. (King, supra,

80 Cal.App.4th at pp. 108-109.) In short, Ellis has not shown the trial court erred by 

denying his motion for relief from his default under section 473, subdivision (b), because 

it was untimely.

To the extent Ellis sought equitable relief from the default judgments based 

on fraud, he has made no cogent argument and has cited no legal authority on appeal that 

would allow us to reverse the judgments on that ground. (See Badie v. Bank of America 

(1998) 67 Cal.App.4th 779, 784-785 [when appellant raises issue “but fails to support it 

with reasoned argument and citations to authority, we treat the point as waived”]; see also 
21

Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 [same].) Accordingly, we 

decline to consider that ground further.

3. Remedy on Appeal

Because Ellis was not given constitutionally sufficient notice of the 

compensatory and punitive damages Schneider claimed on its libel cause of action, the 

Schneider judgment’s award of those damages is void as being in excess of the trial 

court’s jurisdiction. Although Schneider’s respondent’s brief addressed Ellis’s due 

process argument, it suggested no remedy in the event we agreed with Ellis (as we do), 

that he was not given adequate notice of the damages sought. The Schneider judgment 

also awarded injunctive relief, and there is no argument by Ellis that he was not put on 

notice such relief was being sought or that such relief was beyond the trial court’s 

jurisdiction. Nor has Ellis offered any basis for disturbing the Ames judgment. 

In our request for supplemental briefing we asked the parties to address the 

following question: “If the judgment awarding Schneider compensatory and punitive 

damages on its libel cause of action is void, what is the appropriate remedy on appeal and 

on remand?” Schneider’s cryptic response was the appropriate remedy is to affirm the 

judgments in their entirety because of Ellis’s “deliberately insubordinate conduct in this 

case.” Ellis’s equally obtuse response is that the appropriate remedy is to direct the trial 

court to dismiss the entire action with prejudice.

In this case, Ellis’s appeal is only from the order denying his motion to 

vacate the default judgments. This court has already dismissed his appeal as it relates to 

the order striking his answer to the complaint, the entry of default, and the default 

judgments. But for the reasons already stated, the Schneider judgment is void on its face 

as in excess of the trial court’s jurisdiction to the extent it awarded $130,000 in 

compensatory damages and $560,000 in punitive damages on Schneider’s libel cause of 

action. Generally, when a judgment only partially exceeds the trial court’s jurisdiction, it 

can be modified to save the portion that is not void. (Becker v. S.P.V. Construction Co.
22

(1980) 27 Cal.3d 489, 495; see also In re Marriage of Andresen (1994) 28 Cal.App.4th 

873, 886 [void portion of default judgment awarding relief greater than amount in 

complaint subject to set aside at any time]; Ostling v. Loring (1994) 27 Cal.App.4th 1731, 

1743 [“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”].) We conclude the Schneider judgment should be 

modified by striking the compensatory and punitive damages award. Accordingly, in our 

disposition we will reverse the order denying Ellis’s motion to vacate the default 

judgments as to the Schneider judgment only and remand the matter to the trial court with 

directions to modify the Schneider judgment by striking the award of compensatory and 

punitive damages.

3 

DISPOSITION

Appellant’s October 12, 2012, request for judicial notice is denied. 

Respondents’ January 25, 2013, request for judicial notice is denied. 

The order denying Appellant’s motion to vacate the default judgments

against him is reversed as to the Schneider judgment only. As to the Ames judgment, the 

order is affirmed. On remand, the trial court is directed to modify the Schneider 

judgment by striking the award of compensatory and punitive damages on the libel cause 

 

3 Because we conclude the award of punitive damages must be stricken, we 

need not consider whether the complete lack of any evidence of Ellis’s financial 

condition at the time of the default prove-up hearing requires reversal as well. (Adams v. 

Murakami (1991) 54 Cal.3d 105, 109 [“an award of punitive damages cannot be 

sustained on appeal unless the trial record contains meaningful evidence of the 

defendant’s financial condition” at the time of trial].)
23

of action; all other parts of the Schneider judgment shall remain undisturbed. In the 

interests of justice, the parties shall bear their own costs on appeal.

O’LEARY, P. J.

WE CONCUR:

MOORE, J.

IKOLA, J.