DM Props. v. Robertson

• Court: California Court of Appeals
• Writing for the Court: M. KIM, J.
• Docket Number: B344367
• Decision Date: 30 October 2025
• Citation: DM Props. v. Robertson, B344367 (Cal. App. Oct 30, 2025)
• Parties: DM PROPERTIES, LLC, Plaintiff and Respondent, v. DARYLL ROBERTSON, Defendant and Appellant.

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DM PROPERTIES, LLC, Plaintiff and Respondent, v. DARYLL ROBERTSON, Defendant and Appellant.

B344367

California Court of Appeals, Second District, First Division

October 30, 2025

NOT TO BE PUBLISHED

APPEAL from a judgment and an order of the Superior Court of Los Angeles County No. 22SMCV01065, Mark A. Young, Judge. Affirmed in part, reversed in part, and remanded with directions.

Goodman Neuman Hamilton, James L. McCormick and Tom Prountzos for Defendant and Appellant.

Law Office of H. Jack Kakoian and H. Jack Kakoian for Plaintiff and Respondent.

M KIM, J.

Daryll Robertson appeals from a default judgment and from the trial court's subsequent order denying his motion to set aside the judgment under Code of Civil Procedure section 473 subdivision (b).^[1] After hiring Robertson to remodel a house Respondent DM Properties, LLC, sued him for $111,608.41 in "verifiable" damages arising from his alleged breach of contract and tortious conduct. Robertson answered the operative second amended complaint through an attorney, who then withdrew from the case. Months later, representing himself, Robertson failed to appear for his court-ordered deposition. The trial court granted DM Properties's unopposed motion for terminating sanctions, struck Robertson's answer, and entered a default judgment against him in the amount of $290,009.75, including $233,066.24 in damages.

Through his former attorney, who resumed his representation, Robertson moved to set aside the default judgment under section 473. Relying on the attorney's declaration that he had inadvertently failed to tender Robertson's defense to his insurer, Robertson argued that the attorney's inadvertence had caused his default, entitling him to mandatory relief. In the alternative, he argued that he was entitled to discretionary relief because he had acted on a mistake of law in failing to appear for his court-ordered deposition. The trial court denied relief.

We affirm the order denying relief under section 473. However, we conclude that the default judgment is void under section 580 to the extent that it awards damages exceeding the second amended complaint's demand for $111,608.41.

Accordingly, we reverse the default judgment and remand to the trial court to afford DM Properties an opportunity to choose to accept a reduced judgment, in which case the trial court shall enter a modified default judgment that awards no more than $111,608.41 in damages, or to file a third amended complaint, in which case the trial court shall vacate Robertson's default.

BACKGROUND

A. DM Properties's second amended complaint demanded $111,608.41 in damages. Robertson answered through an attorney, who then withdrew.

In November 2021, DM Properties hired Robertson to remodel a house and to convert the house's garage into an accessory dwelling unit (ADU). In May 2022, after completing some but not all of the work required by the parties' contract Robertson stopped working on the property. He allegedly performed defective work that caused water intrusion and mold, requiring DM Properties to pay for repairs.

DM Properties sued Robertson in July 2022. The operative second amended complaint asserts causes of action for: (1) breach of contract; (2) common counts: (3) negligence; (4) negligent misrepresentation; and (5) fraud. In its allegations common to all causes of action, the complaint alleges: "Plaintiff's damages are at minimum as follows: [¶] a. $106,692.91 paid to an alternative contractor to complete the outstanding work on the main house and ADU. [¶] b. and $4915.50 for water intrus[]ion/mold. [¶] Bringing total verifiable damages [to] $111,608.41 subject to proof." (Italics added.)

Similarly, the causes of action for breach of contract and for negligence allege that DM Properties suffered damages "in an amount according to proof but at minimum $111,608.41." The remaining causes of action do not contain any damages allegations. In its prayer for relief on all causes of action, the complaint prays "[f]or all actual, consequential and incidental financial losses, estimated to be at a minimum of $111,608.41." The complaint also prays for prejudgment and postjudgment interest, costs of suit, and any other relief that the trial court deems appropriate.

Through an attorney, Robertson demurred to the second amended complaint's causes of action for negligent misrepresentation and fraud. In June 2023, the trial court overruled the demurrer. Robertson's attorney immediately moved to withdraw from the representation based on Robertson's failure to pay for his services.

While the motion remained pending, the attorney filed an answer to the second amended complaint on Robertson's behalf. In August 2023, the trial court granted the attorney's motion to withdraw.

B. Robertson failed to appear for his court-ordered deposition. The trial court granted DM Properties's unopposed motion for terminating sanctions, struck Robertson's answer, and entered a default judgment against him in the amount of $290,009.75.

In January 2024 (five months after Robertson's former attorney withdrew), DM Properties served Robertson by overnight mail with a notice of his deposition, and he failed to appear on the noticed date. DM Properties moved to compel Robertson's deposition. He did not file an opposition or appear at the hearing.

On April 11, 2024, the trial court granted the unopposed motion to compel and ordered Robertson "to appear at his deposition and produce documents as noticed within 10 days [i.e., by April 21, 2024]." The court also granted DM Properties's motion for $1,200 in monetary sanctions.

The next day, DM Properties served Robertson by overnight mail with a notice of his deposition on April 19, 2024, to which it attached a copy of the court's order compelling the deposition. Robertson did not appear on the noticed date.

DM Properties moved for terminating sanctions under section 2023.030.^[2] Robertson did not respond. In July 2024, the trial court granted the unopposed motion for terminating sanctions, struck Robertson's answer, and entered his default.

In August 2024, Robertson filed a declaration in which he asked the court to deny the motion for terminating sanctions- which the court had granted the month before, as noted. Robertson claimed that he had not received any documents or other communications from DM Properties regarding his deposition, and thus had been unaware of the court's order compelling his deposition until he spoke with his former attorney shortly before filing this declaration.^[3]

DM Properties applied for entry of a default judgment in the amount of $290,084.75, including $233,066.24 in damages allegedly demanded in the second amended complaint (in addition to prejudgment interest, costs, and unpaid monetary sanctions). The trial court granted the application and entered a default judgment against Robertson in the amount of $290,084.75.

C. Robertson moved for relief from the default judgment under section 473. The trial court denied the motion.

Robertson filed a timely motion for relief from the default judgment under section 473 through his former attorney, who resumed his representation (we continue to refer to the attorney as his "former" attorney for clarity). Robertson and the attorney both submitted declarations.

In contrast to his earlier declaration, Robertson admitted that he had received the deposition notices and other documents that DM Properties served by mail. He claimed: "Despite receiving the [original] deposition notice via mail, I was of the mistaken belief that such had to be personally served in order to be valid." (Italics added.) Based on that mistaken belief, he had chosen not to respond to the deposition notice, the motion to compel his deposition, the new deposition notice (to which DM Properties attached the trial court's order compelling his deposition), and the motion for terminating sanctions. He stated: "In representing myself, a layperson, I was not aware of the specific procedural statutory laws relating to service of documents for discovery, motions, etc. As such, I used whatever knowledge I had in an attempt to represent myself in the action." He did not address why or how he came to hold his mistaken belief that absent personal service, he need not respond to a court order or other legal document. Nor did he describe any efforts to ascertain the law.

Robertson's former attorney declared: "After reviewing and analyzing the [original] Complaint filed by Plaintiff, on August 23, 2022 [one year before the attorney withdrew], I had recommended . . . that the matter be tendered to Defendant's commercial general liability insurance carrier. I further advised [Robertson] that I would send a tender letter to tender the claim to Defendant's insurance carrier accordingly, however I inadvertently failed to do so." "At no point in time after my discussion with Defendant on August 23, 2022, did Defendant follow up with me regarding tendering the claim to his insurance carrier. As such, Defendant's insurance carrier was not put on notice of the claim at that time and therefore could not appoint defense counsel."

Robertson and his former attorney both declared that Robertson tendered his defense to his insurer in August 2024 (after the trial court ordered his default), and that the insurer thereafter retained new counsel to represent him in any post-motion proceedings. They further declared that if the insurer had been notified of the matter in August 2022, then the insurer would have appointed counsel who would have "prevented [Robertson] from failing to respond to discovery notices, a motion to compel, and a motion for terminating sanctions at the time when [he] was in pro per."

Based on these...