prove-up hearing in California

2022Our authorities indicate that a defendant who defaults is ‘out of court’ and not entitled to participate in the prove-up hearing.” (Sass v. Cohen, supra, 10 Cal.5th at p. 882 ; accord, Harbour Vista, LLC v. HSBC Mortgage Services Inc. (2011) 201 Cal.App.4th 1496, 1504 [“after a plaintiff has obtained a default under section 585, the defendant no longer has any right to participate in the case”].) However, in some circumstances the Courts of Appeal have allowed defaulting defendants to challenge the sufficiency of the default prove-up evidence on appeal from the default judgment.

2013Proc., § 585, subd. (d).) In conducting the prove-up hearing, “[t]he correct standard of proof requires that the plaintiff merely establish a prima facie case.” (Johnson, supra, 72 Cal.App.4th at p. 361 .) The court has discretion to consider hearsay testimony in a default prove- up because “[h]earsay admitted without objection is evidence that may be considered. [Citations.]” (City Bank of San Diego v. Ramage (1968) 266 Cal.App.2d 570, 584 ; see also Harbour Vista, LLC v. HSBC Mortgage Services Inc. (2011) 201 Cal.App.4th 1496, 1516 [stating that the hearsay exception created by Code of Civil

2022(See Kim v. Westmoore Partners, Inc., supra, 201 Cal.App.4th at pp. 288-289 & fn. 11 [“On appeal, defendant may challenge the sufficiency of the evidence offered to support the default judgment.”]; Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1303 [observing Courts of Appeal on 22 appeal from default judgments have allowed “an attack on appeal where the damages awarded . . . are excessive”].) This would be a very different case had Roger challenged the sufficiency of Burunsuzyan’s declaration on appeal from the default judgment.

2021If extraneous evidence is introduced at the prove-up hearing, defendant lacks standing to complain.” (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1303 .) Here, William’s cross-complaint alleged that the reasonable value of his services was $177,838.66, and that Roda defrauded him in that amount by misrepresenting material facts relied upon by William to enter into retainer agreements and provide those services.

2014“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.

2013(Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385 .) The questions of whether Viacom owed Miller any money and how much was owed were to be resolved by evidence presented at the prove-up hearing, but whether the questions were resolved correctly is not a subject of this appeal.

2021(See § 595.4 [continuance request due to witness unavailability requires a declaration “showing the materiality of the evidence . . . and that due diligence has been used to procure it”]; see also see also Jennings v. American President Lines (1943) 61 Cal.App.2d 417, 426 [party seeking continuance “was bound to show what the witness . . . would state if called as a witness”].) Carlton therefore made no showing for a continuance based upon the unavailability of an essential lay witness.

2021(See § 595.4 [continuance request due to witness unavailability requires a declaration “showing the materiality of the evidence . . . and that due diligence has been used to procure it”]; see also see also Jennings v. American President Lines (1943) 61 Cal.App.2d 417, 426 [party seeking continuance “was bound to show what the witness . . . would state if called as a witness”].) Carlton therefore made no showing for a continuance based upon the unavailability of an essential lay witness.

1989Lisa also contends the court erred in holding the prove-up hearing on January 15, 1988, without giving her the 15 days' notice required under Code of Civil Procedure section 594. [10] (6) However, notice of date of trial provided for by section 594 need not be given to a defaulting defendant. ( Uplinger v. Yonkin (1920) 47 Cal. App. 435, 437 [ 190 P. 822 ].) 3 APPOINTED COUNSEL NOT STATUTORILY OR CONSTITUTIONALLY REQUIRED Lisa meritlessly contends the court's failure to appoint counsel for her constituted error under Civil Code section 237.5 and denied her due process right to appointed counse

1989Lisa also contends the court erred in holding the prove-up hearing on January 15, 1988, without giving her the 15 days' notice required under Code of Civil Procedure section 594. [10] (6) However, notice of date of trial provided for by section 594 need not be given to a defaulting defendant. ( Uplinger v. Yonkin (1920) 47 Cal. App. 435, 437 [ 190 P. 822 ].) 3 APPOINTED COUNSEL NOT STATUTORILY OR CONSTITUTIONALLY REQUIRED Lisa meritlessly contends the court's failure to appoint counsel for her constituted error under Civil Code section 237.5 and denied her due process right to appointed counse

2023Although a party who is in default is barred from further participation in the proceedings, including excepting to evidence at the prove-up hearing (see, e.g., Siry Investment, L.P. v. Farkhondehpour (2022) 13 Cal.5th 333 , 343), the defaulting defendant may still move for a new trial based on errors in law (id. at pp. 344-345) or appeal from the new default judgment if the challenged judgment is set aside (Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 282 ).

2021“On appeal, defendant may challenge the sufficiency of the evidence offered to support the default judgment. ‘Plaintiffs in a default judgment proceeding must prove they are entitled to the damages claimed.’ [Citations.]” (Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 288 .) However, Roda’s contention lacks merit because she fails to show how the evidence presented by William at the prove-up hearing was insufficient to sustain the award of $177,838.66 in compensatory damages.

2024Whether Jondo stated proper causes of action is not an issue on appeal. 7 Stanhiser (1999) 72 Cal.App.4th 357, 365 ; Carlsen, supra, 227 Cal.App.4th at pp. 883– 884.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851 .) Jondo argues it presented sufficient evidence at the prove-up hearing to 3 establish a prima facie showing of damages.

2022(Johnson, supra, 72 Cal.App.4th at p. 359 .) The plaintiff testified at a prove-up hearing and submitted a supplemental statement “which laid out in detail each transaction that occurred between himself and Stanihiser.” (Id. at p. 359.) The statement included “a number of exhibits, such as documents concerning the amount of shares and warrants [in a company] he had owned, treasury orders, investment transaction reports, canceled checks, and correspondence.” (Id. at p. 362.) The trial court declined to award the plaintiff any damages because he failed to prove he suffered actual damages by a pr

2025(See Jameson, supra, 5 Cal.5th at p. 608 [“lack of a verbatim record of such proceedings will frequently be fatal to a litigant’s ability to have his or her claims of trial court 5 error resolved on the merits by an appellate court”]; Elena S. v. Kroutik (2016) 247 Cal.App.4th 570, 574 [“A proper record includes a reporter’s transcript or a settled statement of any hearing leading to the order being challenged on appeal.”].) For the November 18, 2022 order denying Nicholson’s request to set aside the default judgment, the appellate record does not include Nicholson’s moving papers, Pacific’s o

2023Post Modern, however, has “the burden . . . to demonstrate, on the basis of the record presented to the 8 appellate court, that the trial court committed an error that justifies reversal of the judgment.” (Jameson v. Desta (2018) 5 Cal.5th 594, 609 .) Despite this burden, Post Modern provided no transcript or settled statement of the prove-up hearing even though “the absence of a court reporter at trial court proceedings and the resulting lack of a verbatim record of such proceedings will frequently be fatal to a litigant’s ability to have his or her claims of trial court error resolved on the

2024(See Sass v. Cohen (2020) 10 Cal.5th 861, 882 [“a defendant who defaults is ‘out of court’ and not entitled to participate in the prove-up hearing”]; In re Marriage of Askmo (2000) 85 Cal.App.4th 1032, 1037 [default “precludes the respondent spouse from contesting the judgment or obtaining any effective relief until the default is set aside”].) Because Darlene had no right to participate in the default prove-up hearing, we cannot conceive how the claimed defect in notice could have harmed her.

2022Our authorities indicate that a defendant who defaults is ‘out of court’ and not entitled to participate in the prove-up hearing.” (Sass v. Cohen, supra, 10 Cal.5th at p. 882 ; accord, Harbour Vista, LLC v. HSBC Mortgage Services Inc. (2011) 201 Cal.App.4th 1496, 1504 [“after a plaintiff has obtained a default under section 585, the defendant no longer has any right to participate in the case”].) However, in some circumstances the Courts of Appeal have allowed defaulting defendants to challenge the sufficiency of the default prove-up evidence on appeal from the default judgment.

2024A default has the effect of “admitting the well- pleaded allegations of the complaint” as to liability, and the “only evidentiary facts that have a place at a prove-up hearing are those concerning . . . damages . . . .” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879 , 899–900 (Carlsen).) Thus, the insurers argue, the trial court should not have admitted Darwin’s testimony about Perez opening the doors of and entering Universal’s delivery van at the prove-up hearing.

2024But the insurers cite no authority requiring us to read the complaint in such a narrow manner. 15 In focusing on the facts alleged in paragraph IX and ignoring the facts alleged in paragraph X, the insurers fall prey to a “cause of confusion” noted in Carlsen: “the use of the term ‘facts’ to refer both to material facts and to evidentiary facts.” (Carlsen, supra, 227 Cal.App.4th at p. 884, fn. 6 .) Carlsen’s analysis of evidence admissible in a prove-up hearing turns on the difference between “ ‘an ultimate fact, [which is] an element of a cause of action, and an evidentiary fact which support

2022(Siry, supra, 45 Cal.App.5th at p. 1129, citing Christerson v. French (1919) 180 Cal. 523, 525 ; Devlin v. Kearny Mesa AMC/Jeep/Renault (1984) 155 Cal.App.3d 381 , 385 (Devlin); and Forbes v. Cameron Petroleums, Inc. (1978) 83 Cal.App.3d 257, 262 .) Yet, as the Court of Appeal also observed, a “plaintiff still bears the burden of proving its entitlement to damages to the court.” (Siry, supra, 45 Cal.App.5th at p. 1129, italics added, citing Barragan v. Banco BCH (1986) 188 Cal.App.3d 283, 302 , and Code Civ.

2020(Christerson v. French (1919) 180 Cal. 523, 525 [“A defendant against whom a default is entered is out of court and is not entitled to take any further steps in the cause affecting plaintiff’s right of action”]; see also, e.g., Title Insurance, supra, 162 Cal. at p. 46 [same]; Harbour Vista, LLC v. HSBC Mortgage Services Inc. (2011) 201 Cal.App.4th 1496, 1502 [explaining that in “the ordinary default prove-up, . . . a defendant has no right to participate”]; Garcia v. Politis (2011) 192 Cal.App.4th 1474, 1479 [“a case in which a defendant’s default has been taken necessarily has no adversarial

2026(Nwosu v. Uba (2004) 122 Cal.App.4th 1229 , 1246– 1247; see also Rappleyea, supra, 8 Cal.4th at p. 984 [“mere self- representation is not a ground for exceptionally lenient treatment”].) Defendant asserts that “California law makes clear that a court cannot treat a self-represented litigant’s unsworn statements—elicited at a prove-up hearing after default—as binding judicial admissions or competent evidence.” (Boldface omitted.) Not for the first time in this court, defendant relies on a proposition without citing authority for it, but in any event, the statements 21 defendant made at the Janu

2026(Nwosu v. Uba (2004) 122 Cal.App.4th 1229 , 1246– 1247; see also Rappleyea, supra, 8 Cal.4th at p. 984 [“mere self- representation is not a ground for exceptionally lenient treatment”].) Defendant asserts that “California law makes clear that a court cannot treat a self-represented litigant’s unsworn statements—elicited at a prove-up hearing after default—as binding judicial admissions or competent evidence.” (Boldface omitted.) Not for the first time in this court, defendant relies on a proposition without citing authority for it, but in any event, the statements 21 defendant made at the Janu

2025(See Jameson, supra, 5 Cal.5th at p. 608 [“lack of a verbatim record of such proceedings will frequently be fatal to a litigant’s ability to have his or her claims of trial court 5 error resolved on the merits by an appellate court”]; Elena S. v. Kroutik (2016) 247 Cal.App.4th 570, 574 [“A proper record includes a reporter’s transcript or a settled statement of any hearing leading to the order being challenged on appeal.”].) For the November 18, 2022 order denying Nicholson’s request to set aside the default judgment, the appellate record does not include Nicholson’s moving papers, Pacific’s o

2024(See Sass v. Cohen (2020) 10 Cal.5th 861, 882 [“a defendant who defaults is ‘out of court’ and not entitled to participate in the prove-up hearing”]; In re Marriage of Askmo (2000) 85 Cal.App.4th 1032, 1037 [default “precludes the respondent spouse from contesting the judgment or obtaining any effective relief until the default is set aside”].) Because Darlene had no right to participate in the default prove-up hearing, we cannot conceive how the claimed defect in notice could have harmed her.