Filed 10/8/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

PAMELA BEHM,

Plaintiff and Appellant,

v.

CLEAR VIEW TECHNOLOGIES,

Defendant and Appellant.

 H040032

 (Santa Clara County

 Super. Ct. No. 1-11-CV206163)

Pamela Behm asserts that she was persuaded by the false representations of 

officers and directors of Clear View Technologies (CVT) to invest approximately 

$200,000 in the company. CVT claimed to be developing BarMaster, a product that 

would measure pours of alcohol with such precision that it would save large sums of 

money for purveyors of adult beverages and reap great profits for CVT. When CVT had 

financial difficulties and Behm discovered the product did not have the viability she had 

been assured, she filed a lawsuit against CVT and its officers and directors seeking 

compensatory damages “in a sum exceeding $200,000.”

During the course of the underlying litigation, CVT failed to produce discovery 

and to comply with court orders. Behm obtained terminating sanctions against CVT, and 

a default was entered against the company. Behm procured a default judgment for 

$1,264,668.83, including $924,000 in punitive damages. Thereafter, CVT moved to 

vacate the default and the default judgment, arguing that it did not have sufficient notice 

of the amount of punitive damages under Code of Civil Procedure section 425.115, 
2

subdivision (f)1and that it was entitled to mandatory relief from default under section

473, subdivision (b) because the default was incurred due to the mistake, inadvertence, 

surprise, or neglect of its prior attorney, Chang Yi. The trial court granted the motion in 

part, vacating the default judgment after finding the notice of damages was insufficient. 

However, it denied CVT’s request to be relieved from the underlying default. Both 

Behm and CVT have appealed the court’s order. 

For the reasons set forth below, we affirm. Due process requires that when a 

plaintiff moves for discovery terminating sanctions and seeks punitive damages, a 

statement under section 425.115, subdivision (f) must be served a reasonable time before 

obtaining those sanctions. Notice must be sufficient to afford a defendant the opportunity 

to fairly appraise the full amount of damages sought by the time he or she needs to 

respond and oppose the motion.

FACTUAL AND PROCEDURAL BACKGROUND

On July 28, 2011, Behm filed a complaint against CVT alleging she was 

defrauded when she invested $200,000 in the company.2 The complaint alleged a total of 

seven causes of action, some against CVT only, and the others against CVT and several 

other individual defendants consisting of officers and directors of CVT. These 

defendants included Paul Mula Sr. and Paul Mula II. Though Behm did not request a 

specific amount of damages for emotional distress, lost wages, or punitive damages, she 

did request “compensatory damages of no less than $200,000, plus interest, or in such 

additional amount as is proven at trial.”

According to Behm, she successfully served CVT and Mula II with her complaint. 

However, she was unsuccessful in her attempts to serve some of the other named 

 

1 Unspecified statutory references are to the Code of Civil Procedure.

2

The complaint also named several of CVT’s officers and employees who are not 

a party to this appeal.
3

defendants, because CVT’s offices were always closed when service attempts were made. 

In early September 2011, Behm asked Yi, who was representing CVT and the individual 

defendants, to accept service on behalf of CVT’s employees and officers. Yi refused 

Behm’s request. Subsequently, Behm served a special interrogatory on CVT asking it to 

produce the last known home addresses of each of the individual defendants, excluding 

Mula II. Behm also propounded on CVT a set of inspection demands, requesting some of 

CVT’s business records. 

CVT’s response to the special interrogatory was due October 31, 2011. On that 

day, Yi requested an extension to finalize CVT’s response by November 4, 2011. Behm 

agreed. By November 7, 2011, Behm had yet to receive a response, so she e-mailed Yi. 

Yi replied and explained that many of CVT’s officers were not located in Santa Clara, so 

he had been unable to finalize discovery. That same day, Yi served CVT’s response via 

mail. CVT’s reponse consisted primarily of objections and included CVT assertion that 

the interrogatory was now moot, because Behm had failed to serve all the defendants 

within 60 days of filing her complaint. The response did not contain usable information 

about the defendants’ addresses.

On November 14, 2011, Behm filed an ex parte application to extend time to serve 

her complaint on the defendants that had yet to be served. The court granted Behm’s 

application and ordered her to complete service as soon as possible. 

Afterwards, Behm filed a motion to compel a response to her special interrogatory 

and her request for inspection of CVT’s records. On January 30, 2012, CVT filed an 

opposition where it again argued that it need not provide the information because the time 

to serve the named defendants had expired. On February 16, 2012, the court granted 

Behm’s motion to compel and ordered CVT to serve code-compliant verified responses 

to Behm’s special interrogatory and to produce all documents responsive to Behm’s 
4

inspection request by an extended deadline. The court further ordered CVT to pay 

monetary sanctions. 

CVT failed to produce any documents responsive to Behm’s request by the 

deadline. Subsequently, on April 2, 2012, Behm informed CVT that she would be 

seeking monetary and nonmonetary sanctions against the company for its discovery 

violations. Behm gave CVT a few weeks to comply with the court’s orders, which it 

failed to do. 

On April 27, 2012, Behm filed a motion for terminating sanctions. CVT did not 

oppose the motion.

Several weeks later and just prior to the hearing on Behm’s motion set for June 8, 

2012, a tentative ruling was issued by the court granting the motion for terminating 

sanctions, which order automatically became the order of the court on June 8, 2012, 

pursuant to California Rules of Court, rule 3.1308(a) and local court rule.3 In that ruling, 

the court indicated it would strike CVT’s answer and would enter a default against the 

company. 

On June 11, 2012, three days after the court adopted the ruling granting 

terminating sanctions, Behm served CVT a notice pursuant to section 425.115 reserving 

the right to seek $1 million in punitive damages. 

On June 15, 2012, the court signed a written order that echoed the ruling adopted 

on June 8, 2012, granting Behm’s motion for terminating sanctions. The order was filed 

on June 25, 2012.

 

3

Santa Clara County has a local rule that provides that a “tentative ruling will 

automatically become the order of the Court on the scheduled hearing date if . . . if the 

contesting party fails to timely notice an objection to the other side and the Court.” 

(Super. Ct. Santa Clara County, Local Rules, civ. rule 8E.)
5

On July 1, 2012, Yi filed a motion for reconsideration on behalf of CVT. The 

court denied the motion. 

On March 5, 2013, Behm applied for a default judgment against CVT, requesting 

$1,264,668.83 in damages, which comprised of $200,000 in compensatory damages, 

$108,000 in emotional distress damages and lost wages, $32,487.67 in prejudgment 

interest, $924,000 in punitive damages, and $181.16 in court fees. Punitive damages 

were calculated as three times the total compensatory damages including the emotional 

distress damages sought by Behm. A few weeks later, the trial court granted Behm’s 

application for a default judgment and awarded her all of the requested damages. 

On June 10, 2013, CVT brought a motion to set aside the default and the default 

judgment pursuant to section 473, subdivision (b). At that point, CVT was no longer 

represented by Yi. The motion asserted that CVT was entitled to relief from default, 

because the default was solely the result of Yi’s negligence and failures.4 CVT also 

argued that the award of damages to Behm violated its due process rights, because it was 

not adequately informed of the amount of compensatory and punitive damages that Behm 

would seek.

After a hearing, the court granted CVT’s motion in part, vacating the default 

judgment on the basis that the award of compensatory and punitive damages in excess of 

the amount pleaded in the complaint violated CVT’s due process rights. However, the 

court left the default intact after finding Yi’s affidavit of fault lacked credibility and 

declared that Behm was authorized to apply for another default judgment for the amount 

 

4

Earlier, default was also entered against Mula Sr. and Mula II. On March 25, 

2013, Mula II successfully set aside his default after retaining new counsel based on a 

separate declaration of fault signed by Yi. Mula Sr. has also filed a separate motion for 

relief from default based on another declaration of fault prepared by Yi. The default 

judgments entered against Mula Sr. and Mula II are not a part of this appeal.
6

of compensatory damages alleged in the complaint. Both Behm and CVT have appealed 

from this order.

DISCUSSION

1. Behm’s Appeal

On appeal, Behm argues that the court erred in vacating the default judgment and 

the award of punitive damages, because the punitive damages notice served on CVT was 

timely and comported with due process.

a. Standard of Review and Legal Framework

“Our standard of review is well articulated by the California Supreme Court in 

Elston v. City of Turlock (1985) 38 Cal.3d 227, 233: ‘A motion seeking [relief from 

default] lies within the sound discretion of the trial court, and the trial court’s decision 

will not be overturned absent an abuse of discretion. [Citations.] However, the trial 

court’s discretion is not unlimited and must be “ ‘exercised in conformity with the spirit 

of the law and in a manner to subserve and to impede or defeat the ends of substantial 

justice.’ ” [Citations.] [¶] Section 473 is often applied liberally where the party in default 

moves promptly to seek relief, and the party opposing the motion will not suffer 

prejudice if relief is granted. [Citations.] In such situations “very slight evidence will be 

required to justify a court in setting aside the default.” [Citations.] [¶] Moreover, because 

the law strongly favors trial and disposition on the merits, any doubts in applying section

473 must be resolved in favor of the party seeking relief from default [citations]. 

Therefore, a trial court order denying relief is scrutinized more carefully than an order 

permitting trial on the merits.’ ” (McCormick v. Board of Supervisors (1988) 198 

Cal.App.3d 352, 359-360.)

b. Notice of Punitive Damages Under Section 425.115, Subdivision (f)

Due process requires that defendants be provided with sufficient notice of the 

relief a plaintiff seeks prior to entry of a default. (Van Sickle v. Gilbert (2011) 196 
7

Cal.App.4th 1495, 1520-1521 (Van Sickle).) “ ‘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.’ ” (Id. at p. 1520.)

“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.) However, there are exceptions to this general rule. Pertinent here is the exception 

provided in Civil Code section 3295, subdivision (e), which states that “[n]o claim for 

exemplary [i.e., punitive] damages shall state an amount or amounts” to be sought.

Nonetheless, the Legislature has ensured that the due process requirement satisfied 

when a complainant seeks punitive damages. Under section 425.115, subdivision (b), a 

complainant seeking punitive damages should serve a statement notifying the defendant 

of the amount of damages sought. Section 425.115, subdivision (f) provides that “[t]he 

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 

damagesof notice is still satisfied when a complainant seeks punitive damages. Under 

section 425.115, subdivision (b), a complainant seeking punitive damages should serve a 

statement notifying the defendant of the amount of damages sought. Section 425.115, 

subdivision (f) provides that “[t]he 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.” 

As a general rule, “[t]he relief granted to the plaintiff, if there is no answer, cannot 

exceed that demanded in the complaint, in the statement required by Section 425.11, or in 

the statement provided for by Section 425.115 . . . .” (§ 580, subd. (a).) Therefore, a 
8

default judgment entered with a damages award higher than the amount either 

enumerated in the complaint or stated in a notice made pursuant to section 425.115 is 

void. (Greenup v. Rodman (1986) 42 Cal.3d 822, 826 (Greenup).) “This rule applies to 

defaults entered as a terminating sanction for misuse of the discovery process . . . .” 

(Simke, Chodos, Silberfeld & Anteau, Inc. v. Athans (2011) 195 Cal.App.4th 1275, 1286.)

Notably, sections 580, 425.11, and 425.115 do not specify when a statement of 

punitive damages must be served on a defendant prior to a default in order for due 

process to be satisfied. (Matera v. McLeod (2006) 145 Cal.App.4th 44, 61 (Matera).) 

Therefore, Behm argues that there is no timing requirement and service of a notice is 

proper at any time before entry of default. Behm insists that the trial court improperly 

read into the statute a due process requirement that simply does not exist. 

We disagree. Both the Fourteenth Amendment of the Federal Constitution and the 

California Constitution contain due process guarantees. Section 425.115’s failure to 

specifically state a due process requirement does not render a notice of punitive damages 

outside the scope of the federal and state constitutional assurances of due process of law. 

Quite the contrary, “ ‘[i]t 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.’ ” (Van Sickle, supra, 196 Cal.App.4th at p. 1520.) 

This includes a notice of the punitive damages sought.

At issue is how much notice is required. “The governing standard for purposes of 

due process was stated in Schwab v. Rondel Homes, Inc. (1991) 53 Cal.3d 428, 435, 

albeit in dictum: ‘A defendant is entitled to actual notice of the liability to which he or 

she may be subjected, a reasonable period of time before default may be entered.’ ” 

(Matera, supra, 145 Cal.App.4th at p. 61, italics added.)

Several cases have discussed what constitutes a reasonable period of time. In 

Matera, two defendants appealed following the entry of a default judgment against them 
9

and the denial of their motion for relief from default under section 473, subdivision (b). 

(Matera, supra, 145 Cal.App.4th at p. 49.) In part, the defendants argued that the 

plaintiffs failed to serve the statement of punitive damages within a reasonable period of 

time before the default was taken, because they were served with the statement a mere 

two days before the court struck the defendants’ answer and entered their defaults. (Id. at 

p. 62.) The Matera court agreed, concluding that “two days before the entry of default 

was not a reasonable period of time to apprise the defendants of their substantial potential 

liability for purposes of due process.” (Ibid.) 

In Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161 

(Electronic Funds), the plaintiffs filed a motion for terminating sanctions at the same 

time they served the defendants with a statement of punitive damages. (Id. at p. 1172.) 

The court determined that the notice was timely, rejecting the defendants’ claim that the 

notice violated their due process rights because it was not given until they made the 

decision to thwart the discovery process. (Id. at p. 1178.)

In Electronic Funds, the court stated that “[b]ecause service occurred before the 

entry of default, the notice of punitive damages was timely.” (Electronic Funds, supra, 

134 Cal.App.4th at p. 1178.) Behm seizes upon this sentence, asserting that Electronic 

Funds therefore holds that service of a statement of punitive damages at any time before 

a default was entered satisfies due process. 

We disagree with Behm’s interpretation of Electronic Funds. Electronic Funds

held that a service of a notice of punitive damages made concurrently with a motion for 

terminating sanctions comports with due process. Furthermore, it rejected the argument 

that notice must be given before a litigant decides to destroy evidence or evade the 

discovery process. To the extent the sentence quoted by Behm from the Electronic 

Funds decision asserts that service at any time prior to the entry of default is proper, this 

statement is merely dicta. “An appellate decision is not authority for everything said in 
10

the court’s opinion but only ‘for the points actually involved and actually decided.’ ” 

(Santisas v. Goodin (1998) 17 Cal.4th 599, 620.) 

Contrary to Behm’s claims, we are left with two guideposts to assist in our 

determination of whether Behm’s punitive damages notice was timely served. In Matera, 

the court concluded that service of the notice two days prior to the court’s entry of a 

default judgment did not provide sufficient notice. In Electronic Funds, serving a notice 

presumably at least 16 days prior to the hearing on the motion requesting terminating 

sanction was sufficient.5

As an aside, the parties dispute the exact date the default was taken. Behm claims 

that it is clear the default was taken on the date the signed order by the court was filed, 

which would be on June 25, 2012. CVT argues the default was effectively taken when 

the court adopted its tentative ruling almost two weeks before on June 8, 2012. 

Regardless of which date is used (June 8, 2012, or June 25, 2012), Behm’s notice of 

damages falls squarely between the timelines considered by Matera and Electronic 

Funds. Behm served her notice of punitive damages after the court issued and adopted a 

tentative ruling granting the motion, but more than two days before the order entering the 

default was filed. 

We agree with Electronic Funds that a notice of punitive damages filed 

concurrently with a motion for terminating sanctions provides parties sufficient notice. A

concurrent notice of punitive damages would fully apprise parties of the potential liability 

they may face should they choose not to oppose the motion and terminating sanctions are 

 

5

Section 1005 provides in pertinent part that “[u]nless otherwise ordered or 

specifically provided by law, all moving and supporting papers shall be served and filed 

at least 16 court days before the hearing.” (§ 1005, subd. (b).) Therefore, since the 

notice of damages in Electronic Funds was served at the same time as the motion for 

terminating sanctions, the notice was presumably served at least 16 days prior to the date 

of the hearing.
11

ordered. Here, the timing of Behm’s notice is more analogous to the scenario set forth in 

Matera, because she filed it after her motion for terminating sanctions and after the court 

issued and adopted its tentative order. “The 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.) To meaningfully oppose a motion for terminating sanctions, a 

defendant must file and serve a written response at least nine days before the hearing 

date. (§ 1005, subd. (b).) “[D]ue process requires notice to defendants, whether they 

default by inaction or by wilful obstruction, of the potential consequences of a refusal to 

pursue their defense.” (Greenup, supra, 42 Cal.3d at p. 829.) By not filing a statement 

of punitive damages until after the hearing on the order terminating sanctions (and the 

court adopted its tentative ruling), Behm, like the plaintiffs in Matera, effectively 

deprived CVT of notice of the full potential consequences of foregoing its last chance to 

change its course of noncompliance and nonopposition, demonstrating to the court that it 

will take part in the litigation process. Behm failed to give CVT sufficient notice of its 

potential liability. 

Behm argues that Electronic Funds holds that a defendant does not have a due 

process right to receive notice of punitive damages prior to making any discovery 

violations. We agree with the reasoning set forth in Electronic Funds that to be sufficient 

a notice need not be received before a party commits discovery violations. However, 

Behm’s reliance on this principle is misplaced. Here, CVT does not claim that due 

process was violated because it did not receive the punitive damages notice prior to it 

committing sanctionable actions. Rather, CVT’s claim is that the timing of the notice 

deprived it of the opportunity to fairly appraise the amount of damages sought by Behm 

prior to the time it needed to respond and oppose the motion for terminating sanctions.

Behm insists that this court should deviate from Matera, because Matera did not 

recognize the distinction between notice requirements for compensatory damages and for 
12

punitive damages, and it erroneously relied on cases that were decided prior to the 

enactment of section 425.115. We disagree with Behm that Matera is inapplicable or 

should be reconsidered and we agree with Matera’s analysis that reasonable notice must 

be given of all damages, including punitive damages, prior to entry of a default.6

Lastly, Behm argues that earlier service of a notice under section 425.115, 

subdivision (f) would have served no due process function. She cites section 425.115, 

subdivision (c), which states that “[i]f the plaintiff seeks punitive damages pursuant to 

Section 3294 of the Civil Code, and if the defendant appears in the action, the plaintiff 

shall not be limited to the amount set forth in the statement served on the defendant 

pursuant to this section.” Therefore, she claims that she could have served a notice to 

CVT that she sought $1 in punitive damages, but could have later sought millions of 

dollars in damages after the court granted the motion for terminating sanctions. Whether 

this wily tactic would be successful under the law is an issue that is not before us. 

Behm’s argument ignores the fact section 425.115, subdivision (f) unequivocally requires 

a notice be served, regardless of the amount. 

Accordingly, we do not find the court erred when it vacated the default judgment, 

because the statement of damages was not served within a reasonable period of time 

before the default was taken.

 

6

In her combined reply brief and cross-respondent’s brief, Behm claims we 

should not follow Matera because the appellate court violated the doctrine of 

constitutional avoidance by reaching the due process issue. She opines that the damages

issue presented there could have been decided on nonconstitutional grounds. (Sanchez v.

City of Modesto (2006) 145 Cal.App.4th 660, 671 [“[p]rinciples of judicial self-restraint .

. . require us to avoid deciding a case on constitutional grounds unless absolutely 

necessary; nonconstitutional grounds must be relied on if they are available.”].) 

Regardless of whether the Matera court could have avoided the constitutional question 

raised in that case, we are not necessarily bound by its decision. However, we find its 

reasoning persuasive and applicable to this case. 
13

c. Compensatory Damages

CVT argues that, as a separate and individual cause for reversal of the default 

judgment, Behm also failed to provide it with sufficient notice of the compensatory 

damages. Accordingly, CVT asserts that even if we were to find reasonable notice of 

punitive damages was given, the default judgment must be vacated.7

Under section 580, subdivision (a), a default judgment “cannot exceed that which 

[the plaintiff] shall have demanded in his complaint.” “[A] default judgment greater than 

the amount specifically demanded is void as beyond the court’s jurisdiction.” (Greenup,

supra, 42 Cal.3d at p. 826.) Courts have applied this principle even to those prayers for 

relief requesting damages “ ‘in excess’ ” of a specific amount, as Behm did here. (Becker 

v. S.P.V. Construction Co. (1980) 27 Cal.3d 489, 492.) The rationale is that this type of 

prayer for relief cannot give a defendant the required notice of the damages sought. (Id. 

at p. 494.)

Here, although Behm sought compensatory damages “in a sum exceeding 

$200,000,” she did not request additional damages to compensate her for emotional 

distress or for lost wages. As a result, the default judgment’s award of $308,000 in 

compensatory damages was improper. And, the court’s decision to vacate the default 

judgment was, therefore, also appropriate for this separate and independent reason. 

2. CVT’s Cross-appeal

CVT has cross-appealed from the same order, arguing that the court erred in 

vacating only the default judgment when it should have vacated both the default and the 

default judgment. CVT further claims that the default should have been set aside 

 

7

This issue was first raised in CVT’s combined respondent’s brief and crossappellant’s opening brief. Behm did not address this argument in her combined reply 

brief and cross-respondent’s brief. Neither did CVT raise this issue again in its crossappellant’s reply brief. However, since CVT argues this claim, we address it here.
14

entirely, because the failures of CVT to comply with Behm’s discovery requests solely 

resulted from the negligence of its former attorney, Yi. We address the latter claim first.

a. Mandatory Relief from Default

CVT claims the trial court erred when it did not grant it mandatory relief from 

default based on the affidavit of fault submitted by Yi. 

As we articulated in the previous section of our opinion, the standard of review 

from the court’s grant or denial of a motion for relief from default is well-settled. “ ‘A 

motion seeking [relief from default] lies within the sound discretion of the trial court, and 

the trial court’s decision will not be overturned absent an abuse of discretion.’ ” 

(McCormick v. Board of Supervisors, supra, 198 Cal.App.3d at p. 359.)

Section 473, subdivision (b) states in pertinent part that “[n]otwithstanding any 

other requirements of this section, the court shall, whenever an application for relief is 

made no more than six months after entry of judgment, is in proper form, and is 

accompanied by an attorney’s sworn affidavit attesting to his or her mistake, 

inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk 

against his or her client, and which will result in entry of a default judgment, or (2)

resulting default judgment or dismissal entered against his or her client, unless the court 

finds that the default or dismissal was not in fact caused by the attorney’s mistake, 

inadvertence, surprise, or neglect.” (Italics added.)

“In considering whether the trial court properly denied relief under section 473[,]

[subdivision] (b), the first question is the sufficiency of defendants’ showing of attorney 

fault, if believed, to trigger the mandatory relief provisions of that statute. Since this 

determination depends on the application of legal principles to a set of facts that is, for 

this purpose, undisputed, it presents a pure question of law as to which we are in no 

respect bound by, or obliged to defer to, the trial court’s express or implied 

determination.” (Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 
15

Cal.App.4th 868, 896, overruled on a different point in Even Zohar Construction & 

Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830.) An affidavit of 

fault need not show that the attorney’s mistake, inadvertence, surprise, or neglect was 

excusable. (Cisneros v. Vueve (1995) 37 Cal.App.4th 906, 909.) 

“In certain situations, section 473 mandates relief on the basis of an attorney’s 

affidavit ‘unless the court finds that the default or dismissal was not in fact caused by the 

attorney’s mistake, inadvertence, surprise, or neglect.’ The statute clearly involves an 

assessment of credibility by the trial court.” (Johnson v. Pratt & Whitney Canada, Inc.

(1994) 28 Cal.App.4th 613, 622 (Johnson); Cowan v. Krayzman (2011) 196 Cal.App.4th 

907, 915; but see Cisneros v. Vueve, supra, 37 Cal.App.4th at p. 912 [concluding that the 

“ ‘unless’ ” clause of § 473, subd. (b) “is not a credibility testing device, it is a causation 

testing device. The statute mandates relief ‘unless the court finds that the default . . . was 

not in fact caused by the attorney’s mistake, inadvertence’ etc.”].) 

We defer to the trial court’s determination of credibility and do not reweigh 

evidence or reassess the credibility of witnesses. (Johnson, supra, 28 Cal.App.4th at p.

622.) If the evidence gives rise to reasonable conflicting inferences, one of which 

supports the trial court’s determination, we will affirm the court’s finding on appeal. (Id. 

at p. 623.)

Here, the trial court discounted Yi’s affidavit of fault as lacking credibility. This 

determination is supported by the record. The court reasonably inferred a lack of 

credibility based on the contradictions and discrepancies between Yi’s affidavit and his 

earlier representations to the court. For example, Yi’s affidavit of fault asserted that he 

was unable to complete the response to Behm’s special interrogatory, with no mention of 

any delay resulting from CVT’s staff. That affidavit contradicts Yi’s earlier 

representations to the court and to Behm, when he claimed he had trouble fulfilling the 

discovery request because of his clients’ lack of cooperation. The affidavit also 
16

contradicts a statement in Yi’s motion for reconsideration of the order granting 

terminating sanctions, where Yi claimed that he was unable to complete the interrogatory 

because he had difficulty contacting the various defendants and had trouble accessing 

their business user accounts and e-mails. 

Yi’s affidavit further stated that he was unable to comply with the court’s order 

that he produce documents pursuant to Behm’s motion to compel out of his own mistake, 

inadvertence, surprise and neglect. He also asserted he failed to submit evidence that 

CVT’s financial difficulties precluded CVT from producing the documents requested. In 

his earlier motion for reconsideration, however, Yi had provided different excuses for the 

failure to comply, never mentioning any claim of his own “mistake, inadvertence, 

surprise, or neglect.” In that motion for reconsideration, Yi asserted that he was not 

informed of CVT’s dramatically reduced staffing until May 2012, and that, by that time, 

there was no staff left to produce any discovery; but, that was long after the court had 

granted the motion to compel and the deadlines to produce the discovery had passed. 

In sum, most of Yi’s prior statements attributed the delay in producing the 

discovery request to his clients, CVT and the other named defendants in the suit. Yi 

forfeited his credibility when, in his subsequent affidavit, he attempted “to change the 

facts and blame himself.” (Todd v. Thrifty Corp. (1995) 34 Cal.App.4th 986, 992.)

Based on these inconsistencies, we cannot find that the court erred in finding Yi’s 

affidavit to be incredible, therefore denying mandatory relief under section 473, 

subdivision (b).8

 

8 We note that in CVT’s motion to vacate the default and the default judgment, 

CVT asserted that Yi had submitted a separate affidavit of fault in support of vacating 

Mula Sr.’s default. However, Yi’s affidavit of fault submitted in support of vacating 

Mula Sr.’s default is factually different than the affidavit he submitted in support of 

vacating CVT’s default. Therefore, it has no bearing on the case before us. Furthermore, 

CVT’s motion indicated that default had already been set aside for Mula II based on 

(continued)
17

b. Proper Remedy

We conclude that the court did not err when it vacated the default judgment, 

because the punitive damages award was void. We further find the court did not err in 

denying mandatory relief under section 473, subdivision (b), because there was support 

for the court’s determination that Yi’s affidavit of fault was not credible. Under this 

scenario, CVT argues that the proper remedy is to order the trial court to vacate the 

underlying default in addition to the default judgment, because the notice statutes 

regarding damages are aimed at the entry of a default. 

CVT relies on Van Sickle, supra, 196 Cal.App.4th 1495. The court in Van Sickle

contemplated what the proper remedy was in an action where the plaintiff failed to notify 

the defendant of the damages she sought. (Id. at pp. 1528-1529.) The Van Sickle

plaintiff did not include a prayer for relief in her complaint, nor did she serve the 

defendant with a statement of damages prior to the taking of a default. (Id. at p. 1523.) 

Therefore, the appellate court concluded that it was appropriate to reverse the default 

judgment and to set aside the default. (Id. at p. 1529.) In so concluding, the court noted 

that case law has recognized it may be possible to simply modify a default judgment to a 

lesser amount as warranted in the complaint. (Ibid.) However, the better approach, 

considering there was no amount specified in the plaintiff’s complaint, was to vacate the 

underlying default and allow the plaintiff to amend the complaint and serve the amended 

complaint on the defendant. (Ibid.)

Van Sickle is distinguishable. Here, Behm already included in her prayer for relief 

a request for $200,000 in compensatory damages. Therefore, it was not improper for the 

court to reverse only the default judgment. There is no need for Behm to amend her 

 

another affidavit of fault submitted by Yi. However, the court did not set aside default 

based on a finding that Yi’s affidavit of fault was credible. Rather, in that situation the 

court set aside the default based on Yi’s affidavit based on the parties’ stipulation
18

complaint and re-serve the amended complaint on CVT and the other named defendants. 

Unlike the plaintiff in Van Sickle, Behm’s complaint was not deficient for failing to 

specify an amount of compensatory damages sought. 

“Vacating the default judgment has no necessary effect on the underlying default 

and simply returns the defendant to the default status quo ante. [Citation.] 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.) This general rule 

was acknowledged in Electronic Funds. However, the Electronic Funds court 

determined that under the specific circumstances of their case, the better course of action 

was to vacate the award in its entirety, because the trial court had applied an incorrect 

measure of damages. (Electronic Funds, supra, 134 Cal.App.4th at p. 1177.) Further, 

“[i]n the interest of fairness” the Electronic Funds court gave the plaintiffs the 

opportunity to amend their complaint to state the full amount of damages sought, because 

the plaintiffs had obtained the default judgment before the publication of an appellate 

decision holding that a notice of compensatory damages in excess of those alleged in the 

complaint under section 425.11 was not a substitute for an amended complaint except in 

personal injury or wrongful death cases. (Ibid.) Here, the trial court did not utilize an 

incorrect measure of damages and there has not been a recent decision clarifying the 

sufficiency of a notice of damages. Rather, like Ostling, the damages awarded simply 

exceeded the amount pleaded in the complaint.

In Julius Schifaugh IV Consulting Services, Inc. v. Avaris Capital, Inc. (2008) 164 

Cal.App.4th 1393, the appellate court held that a plaintiff whose default judgment has 

been vacated because the relief granted exceeds that which was demanded in the 

complaint may be given the option of “accepting a reduced judgment or amending the 

complaint and putting the entire matter back at issue.” (Id. at p. 1397.) “But if the 
19

plaintiff chooses the latter, the court should vacate the default, ‘ “entitling defendants to 

either attack the pleadings, or answer the amended complaint.” ’ ” (Rodriguez v. Cho

(2015) 236 Cal.App.4th 742, 755.) 

Here, the trial court opted not to give Behm a choice between accepting a reduced 

judgment or amending the complaint. Instead, it authorized Behm to apply for a new 

default judgment against CVT for compensatory damages to the extent alleged in the 

complaint. Essentially, the trial court’s action below produces the same result as if it had 

modified the default judgment by striking the excess amount of damages. Such a 

decision is within the court’s discretion, and we find no error with it. 

DISPOSITION

The trial court’s order vacating the default judgment and denying Clear View 

Technologies’ motion for relief from default is affirmed. Each party is to bear their own 

costs on appeal.
Walsh, J.*

WE CONCUR:

Rushing, P.J.

Elia, J.

Behm v. Clear View Technologies 

H040032

 

*

Judge of the Santa Clara County Superior Court assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.
Trial Court: Santa Clara County Superior Court

Superior Court No. 1-11-CV206163

Trial Judge: Hon. Mark Pierce

Counsel for Plaintiff/Appellant:

Pamela Behn

Grellas Shah

George Grellas

Dhaivat H. Shah

David I. Siegel

Counsel for Defendant/Appellant:

Clear View Technologies

Ropers, Majeski, Kohn & Bentley

Michael J. Ioannou

J. Mark Thacker

Terry Anastassiou

Behm v. Clear View Technologies 

H040032