Filed 8/28/26 Cota v. Excellence RE Real Estate CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
LORRAINE COTA, B337150
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 22NWCV00150)
v.
EXCELLENCE RE REAL ESTATE,
INC.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Brian F. Gasdia, Judge. Reversed and
remanded with instructions.
Fitzgerald Kreditor Bolduc Risbrough, Eoin L. Kreditor,
Brook John Changala and Julio Soto-Kim, Jr. for Defendant and
Appellant.
DeArmey Law and Matthew S. DeArmey for Plaintiff and
Respondent.
________________________
INTRODUCTION
Excellence RE Real Estate, Inc. (Excellence) appeals the
entry of default and default judgment against it after it was sued
by Lorraine Cota. Excellence argues the trial court erred by
awarding punitive damages because Cota failed to provide the
requisite notice she was seeking punitive damages under Code of
Civil Procedure section 425.115.1 We agree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND2
A. Cota’s Complaint
On March 3, 2022, Cota sued Excellence and other
defendants, alleging (as relevant here) elder abuse (Welf. & Inst.
Code, § 15610.30), breach of fiduciary duty, fraud, and
constructive fraud.3 Cota alleged she contracted with Excellence,
a real estate firm, to sell her real property located in Whittier,
and that its real estate agents, along with other defendants,
1 Undesignated statutory references are to the Code of Civil
Procedure.
2 To aid in our review, we take judicial notice of the trial
court’s minute orders and the register of actions. (See Evid.
Code, §§ 452, subd. (d) [judicial notice may be taken of “[r]ecords
of . . . any court of this state”], 459.)
3 The other defendants (not parties to this appeal) included
Marco Antonio Martin; 365 Kapital, LLC; My Rights Inc.; and
Rinaldo Rios. Cota’s complaint alleged additional claims against
these defendants for fraud, conversion, recovery of payment to an
unlicensed contractor (Bus. & Prof. Code, § 7031, subd. (b)), and
breach of contract.
2
misrepresented the terms of certain renovations to the property
and fraudulently borrowed against the property. The complaint
requested restitution, damages of $250,000 under Welfare and
Institutions Code sections 15610.30 and 15657.5, subdivision (a),
and compensatory and punitive damages as to all causes of action
against Excellence. Cota served Excellence with the complaint
on March 14, 2022.
B. Default and Default Judgment
On April 15, 2022, Cota requested entry of default against
Excellence, and the clerk entered default as requested. Cota filed
a notice of entry of default on March 1, 2023.
There is no indication in the appellate record, the trial
court’s minute orders, or the register of actions that Cota served
Excellence with a statement of punitive damages under
section 425.115 before requesting entry of default.
On April 18, 2023, Cota requested default judgment against
Excellence in the amount of $859,685.18.
On April 25, 2023, Excellence, specially appearing, moved
to set aside the default under sections 473, subdivision (d),
and 473.5 on the grounds that service was improper and it never
received notice of entry of default. The trial court denied the
motion on October 3, 2023, finding that “Excellence was
personally served on March 14, 2022; therefore, the April 15,
2022 entry of default against Excellence was timely. There is no
other reason to believe that the entry of default is void on its
face.” The court further found that Excellence “had actual
knowledge of the April 15, 2022 default as of September 7, 2022”
but “waited over a year to set aside default.”
3
Excellence moved to reconsider this ruling on October 12,
2023. The court denied the motion on December 14, 2023.
The court held a default prove-up hearing on December 18,
2023. Excellence was not present at the hearing. On January 5,
2024, the court entered a default judgment for Cota against
Excellence awarding damages of $208,809.89, punitive damages
of $600,000, plus attorney fees and costs, resulting in a judgment
of $917,020.46.4
Excellence timely appealed on March 5, 2024.
C. Post-Appeal Proceedings
On August 1, 2025, after it had filed its notice of appeal,
Excellence filed a new motion to set aside or vacate the default
and default judgment. At a hearing on November 18, 2025, the
court stated it would “on its own motion reconsider[] its prior
ruling on [Excellence]’s initial Motion to Set Aside Default.” On
January 26, 2026, the court ruled: “This Court lacks jurisdiction
to [g]rant Defendant Excellence Re Real Estate, Inc. relief from
default. Defendant Excellence Re Real Estate Inc.[] remains in
Default.”
DISCUSSION
A. Mootness and Motion To Dismiss
Cota argues Excellence’s appeal is moot, and she moves to
dismiss the appeal. Because Excellence filed a new motion to set
4 The default judgment was also against Marco Antonio
Martin, 865 Kapital, LLC, My Rights Inc., Rinaldo Rios, and
Michelle Denise Toscano. All defendants, including Excellence,
were held jointly and severally liable for the judgment amount.
4
aside the default and vacate the default judgment after it filed its
notice of appeal, Cota argues the appeal was “mooted by the Trial
Court as it has reconsidered the very ruling [Excellence] seeks
appeal of.”
“A case becomes moot when events ‘ “render[] it impossible
for [a] court, if it should decide the case in favor of [appellant], to
grant him any effect[ive] relief.” ’ [Citation.] For relief to be
‘effective,’ two requirements must be met. First, the [appellant]
must complain of an ongoing harm. Second, the harm must be
redressable or capable of being rectified by the outcome the
[appellant] seeks.” (In re D.P. (2023) 14 Cal.5th 266, 276.)
We are satisfied that Excellence’s appeal is not moot.
While Excellence initiated further proceedings in the trial court
after filing its notice of appeal, the trial court did not modify the
default judgment because it correctly determined it did not have
jurisdiction to do so. The harm that Excellence identifies—the
default judgment and entry of default—is ongoing, and this court
can provide the relief Excellence seeks by vacating the default
judgment and setting aside the default. (See Shaw v. Los Angeles
Unified School District (2023) 95 Cal.App.5th 740, 772 [an
“ ‘appeal is not moot . . . where “a material question remains for
the court’s consideration,” so long as the appellate decision can
grant a party to the appeal effectual relief’ ”]; accord, Panoche
Energy Center, LLC v. Pacific Gas & Electric Co. (2016)
1 Cal.App.5th 68, 96.) We therefore deny Cota’s motion to
dismiss the appeal.
5
B. Because Cota Did Not Serve a Section 425.115 Statement,
the Default Judgment Is Void and Excellence’s Default Must
Also Be Set Aside
“ ‘It is fundamental to the concept of due process that a
defendant be given notice of the existence of a lawsuit and notice
of the specific relief which is sought in the complaint served upon
him. The logic underlying this principle is simple: a defendant
who has been served with a lawsuit has the right, in view of the
relief which the complainant is seeking from him, to decide not to
appear and defend. However, a defendant is not in a position to
make such a decision if he or she has not been given full notice.’ ”
(Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1520
(Van Sickle).)
“To effectuate this due process principle, California law
provides that where a plaintiff seeks to recover money or
damages, the amount sought generally must be stated in the
complaint.” (Van Sickle, supra, 196 Cal.App.4th at p. 1520.)
However, punitive damages are an exception to this rule. (Ibid.;
see Civ. Code, § 3295, subd. (e) [“No claim for exemplary [i.e.,
punitive] damages shall state an amount or amounts.”].)
Section 425.115 “provide[s] [a] method[] for satisfying the due
process requirement of notice while honoring the bar against
pleading a specific amount of [punitive] damages.” (Van Sickle,
at p. 1521.)
Section 425.115 “provides that a plaintiff may serve a
statement notifying defendant of the amount of punitive damages
sought in the action.” (Electronic Funds Solutions, LLC v.
Murphy (2005) 134 Cal.App.4th 1161, 1173 (Electronic Funds).)
As relevant here, section 425.115, subdivision (b), states: “The
plaintiff preserves the right to seek punitive damages . . . on a
6
default judgment by serving upon the defendant [such a]
statement,” including the “dollar amount” of punitive damages
sought. (§ 425.115, subd. (b).) Section 425.115, subdivision (f),
states: “The plaintiff shall serve the statement upon the
defendant pursuant to this section before a default may be taken,
if the motion for default judgment includes a request for punitive
damages.” (Id., subd. (f).) “If the party has not appeared in the
action, the statement shall be served in the same manner as a
summons.” (Id., subd. (g)(1).)
“ ‘The Legislature enacted sections 580, 425.11,[5] 425.115,
and related statutes to ensure that a defendant who declines to
contest an action does not suffer open-ended liability. [Citation.]
The statutes recognize a defendant’s entitlement to “ ‘ “one ‘last
clear chance’ ” ’ ” to respond to the complaint and avoid the
consequences of a substantial judgment.’ ” (Dhawan v. Biring
(2015) 241 Cal.App.4th 963, 969; accord, Electronic Funds, supra,
134 Cal.App.4th at pp. 1173-1174.) “Section 580 . . . limits the
amount of punitive damages that can be awarded in a default
judgment to the amount stated in a statement of punitive
damages ‘provided for by Section 425.115.’ Section 585 also
states that the amount awarded in a default judgment must not
exceed the amount stated in the complaint . . . or the statement of
punitive damages under section 425.115. [Citation.] These
5 Similar to section 425.115, section 425.11 requires that
“When a complaint is filed in an action to recover damages for
personal injury or wrongful death, the defendant may at any time
request a statement setting forth the nature and amount of
damages sought. . . . If no request is made for the statement . . . ,
the plaintiff shall serve the statement on the defendant before a
default may be taken.” (§ 425.11, subds. (b) & (c).)
7
statutory restrictions on the amounts of damages awarded in a
default judgment apply not only in cases where the defendant
never filed an answer, but also in cases where the defendant’s
answer was stricken as a sanction resulting in a default
judgment.” (Matera v. McLeod (2006) 145 Cal.App.4th 44, 60,
footnote omitted (Matera); see § 580, subd. (a) [“The relief
granted to the plaintiff, if there is no answer, cannot exceed that
demanded in the complaint, . . . or in the statement provided for
by section 425.115.”]; see also Sass v. Cohen (2020) 10 Cal.5th
861, 876 (Sass) [“When section 580 is read in conjunction with
section[] . . . 425.115, the prohibition imposed by section 580 is
apparent: The amount of monetary relief awarded in default—
[including] compensation . . . as punitives—cannot exceed the
amount demanded in the statement of damages.”].) “[B]y reason
of the mandatory language of [section 580] (the court cannot give
a default judgment in excess of the demand), the court’s
jurisdiction to render default judgments can be exercised only in
the way authorized by statute.” (Burtnett v. King (1949) 33 Cal.2d
805, 807; accord, In re Marriage of Lippel (1990) 51 Cal.3d 1160,
1167.) Because “[s]ection 580 operates as a limitation on the
court’s jurisdiction. . . . default judgments rendered in violation of
section 580 are void.” (Electronic Funds, at p. 1176; accord,
Greenup v. Rodman (1986) 42 Cal.3d 822, 826 [“a default
judgment greater than the amount specifically demanded is void
as beyond the court’s jurisdiction”].)
“A claim that a default judgment awards damages in excess
of the amount allowed under section 580 . . . can be raised for the
first time on appeal.” (Matera, supra, 145 Cal.App.4th at p. 59;
accord, People ex rel. Lockyer v. Brar (2005) 134 Cal.App.4th 659,
666.) We review de novo whether a judgment is void. (See
8
Braugh v. Dow (2023) 93 Cal.App.5th 76, 86; Talley v. Valuation
Counselors Group, Inc. (2010) 191 Cal.App.4th 132, 146.)
Excellence argues that, because Cota did not serve a
section 425.115 statement of punitive damages before entry of
default, the default judgment is void and the underlying default
must also be set aside. Excellence contends that “the Trial Court
was without jurisdiction to enter default and default judgment
against [Excellence]” and “simply reducing the amount of [Cota’s]
default judgment against [Excellence] to the amount stated in the
Complaint ignores the fact that the underlying default is void as
a result of [Cota’s] failure to comply with [section] 425.115.”
We agree with Excellence the default judgment must be
vacated, but it is less clear that the default must also be set
aside. As stated, section 425.115, subdivision (f), provides that:
“The plaintiff shall serve the statement upon the defendant
pursuant to this section before a default may be taken, if the
motion for default judgment includes a request for punitive
damages.” (Italics added.) But the few published cases involving
section 425.115, subdivision (f), have taken different approaches.6
6 In Sass, supra, 10 Cal.5th at page 870, the California
Supreme Court summarized the applicable law as follows:
“[S]ection 425.115 requires a plaintiff seeking punitive damages
to serve upon the defendant a form statement ‘or its substantial
equivalent’ that gives the defendant notice of the specific amount
of punitive damages sought. (§ 425.115, subd. (b).) As with
section 425.11, the statement contemplated by section 425.115
must be served ‘upon the defendant . . . before a default may be
taken.’ (§ 425.115, subd. (f).)” But in Sass the punitive damages
statement under section 425.115 was served (Sass, at p. 867), and
the court did not address whether the default must be vacated.
9
For example, in Van Sickle, supra, 196 Cal.App.4th at
page 1521, the Court of Appeal directed the trial court to vacate
the default where the required statements under section 415.11
and section 425.115 were not filed, and it held that, “Not only is a
default judgment for an amount greater than that specifically
demanded void, but when a statement of damages is required but
not served, the underlying entry of default is invalid also and is
subject to set-aside.” Van Sickle, however, primarily relied on
authorities involving section 415.11. (See id. at p. 1521.)7 And in
Behm v. Clear View Technologies (2015) 241 Cal.App.4th 1, 16 as
modified (Oct. 16, 2015), the appellate court affirmed the trial
court’s decision not to vacate the default where the statement
under section 425.115 was not filed, but it did not address the
statutory language of subdivision (f).
By contrast, when a party has failed to serve the requisite
statement of general and special damages in personal injury
cases under section 425.11, which has the same language as
section 425.115 requiring that a damages statement be served on
the defendant “before a default may be taken” (see section 425.11,
subdivision (c) and section 425.115, subdivision (f)), courts have
7 Van Sickle also noted that “where the amount demanded
must be set forth in the complaint [as opposed to the statement
required by sections 425.11 or 425.115] and the plaintiff recovers
a default judgment for more than that amount, the underlying
default is valid even [if] the default judgment is void.” (Van
Sickle, supra, 196 Cal.App.4th at p. 1521.) That is because
“ ‘[o]rdinarily when a judgment is vacated on the ground the
damages awarded exceeded those pled, the appropriate action is
to modify the judgment to the maximum amount warranted by
the complaint.’ ” (Id. at pp. 1521-1522; accord, Sass, supra,
10 Cal.5th at p. 868.)
10
regularly vacated entry of default for this reason. (See, e.g.,
Schwab v. Rondel Homes, Inc. (1991) 53 Cal.3d 428, 433-435
[affirming vacatur of default where defendant was not served
with section 425.11 statement before entry of default]; see also
Department of Fair Employment & Housing v. Ottovich (2014)
227 Cal.App.4th 706, 712 (Ottovich) [where plaintiff “did not file
a statement of damages [under section 425.11] before default
judgment was entered,” “recognizing the impropriety of this
procedure . . . the trial court later vacated the default”]; Plotitsa
v. Superior Court (1983) 140 Cal.App.3d 755, 760 [“a default
entered without [a section 425.11] statement being served on the
defendant is void on the face of the record”]; Stevenson v. Turner
(1979) 94 Cal.App.3d 315, 318 [failure to serve section 425.11
statement is “a defect in the predefault procedure which does
affect the validity of the subsequent entry of default”].)
Although we recognize there may be differences between,
on the one hand, a statement of punitive damages and, on the
other hand, a statement of general and special damages in
personal injury cases that could warrant different treatment as it
relates to the remedy for the failure to serve the requisite
statement, the present circumstances do not require us to decide
the matter. Cota does not dispute that she did not serve
Excellence with a section 425.115 statement, nor did she advance
any argument on the merits of this appeal in her appellate
briefing, including whether the proper remedy is vacatur of the
default judgment and the default. (See In re Ramone R. (2005)
132 Cal.App.4th 1339, 1351 [respondent “implicitly concedes the
11
point by offering no argument to the contrary”].)8 Accordingly,
Cota has forfeited any argument that the default judgment and
default should not be vacated.
Our review of the record, including the trial court’s minute
orders and the register of actions, does not reveal that any
section 425.115 statement was served on Excellence to provide
notice of Cota’s request for $600,000 in punitive damages.
Accordingly, under the circumstances presented, the default
judgment awarding punitive damages against Excellence
exceeded the court’s jurisdiction and is void, and Excellence’s
default must also be set aside.9 (§ 425.115, subd. (f).)
8 At oral argument, Cota’s counsel stated Cota did not
concede that Excellence was entitled to vacatur of the default
judgment and default. “An appellate court is not required to
consider any point made for the first time at oral argument.”
(Kinney v. Vaccari (1980) 27 Cal.3d 348, 356, fn. 6; accord,
Bonfigli v. Strachan (2011) 192 Cal.App.4th 1302, 1311, fn. 4
[“contentions raised on appeal for the first time at oral argument
are generally [forfeited]”].)
9 We express no opinion on the validity of the default
judgment as against the remaining defendants in Cota’s action.
And in light of our holding, we need not reach Excellence’s
additional argument that Cota failed to present evidence
supporting the punitive damages award.
12
DISPOSITION
The default judgment against Excellence is reversed, and
the case is remanded to the trial court with instructions to set
aside Excellence’s default and to set a schedule when the
plaintiff, if she chooses to, may serve a statement of damages
under section 425.115 and when Excellence may file a response to
the complaint. The motion to dismiss is denied. Excellence may
recover its costs on appeal.
MARTINEZ, P. J.
We concur:
SEGAL, J. FEUER, J.
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