Filed 4/25/13 Sylvester v. Yuh 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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


LANCE SYLVESTER et al.,

     Plaintiffs and Respondents,                                       G046704

         v.                                                            (Super. Ct. No. 30-2010-00410269)

LUNDAR YUH,                                                            OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County,
David T. McEachen, Judge. Affirmed in part as modified, reversed in part, and
remanded with directions.
                   Schwartz & Asiedu and Kwasi A. Asiedu for Defendant and Appellant.
                   Law Offices of Douglas Lee Weeks and Douglas Lee Weeks for Plaintiffs
and Respondents.
                                             *               *               *
                                     INTRODUCTION
              Defendant Lundar Yuh appeals from a default judgment entered after the
trial court imposed terminating sanctions against him for misuse of the discovery process.
Following a default prove-up hearing, the court awarded plaintiffs Lance Sylvester and
Elena Sylvester (together, the Sylvesters) $60,000 in compensatory damages and
$300,000 in punitive damages.
              We conclude the trial court did not abuse its discretion by imposing
terminating sanctions against Yuh for misuse of the discovery process or by denying
Yuh‟s motion to vacate the default judgment under Code of Civil Procedure section 473,
subdivision (b). We affirm the award of compensatory damages in favor of both Elena
Sylvester and Lance Sylvester. We conclude, however, the Sylvesters failed to present
admissible evidence of Yuh‟s financial condition sufficient for us to make a
well-informed decision whether the amount of punitive damages is excessive, as Yuh
contends. We lack jurisdiction to consider his challenge to the postjudgment order
denying the motion to vacate the judgment.
              We therefore strike the award of punitive damages and remand for a new
default prove-up hearing only on the issue of the amount of punitive damages. In all
other respects, and with one modification, the judgment is affirmed.


                                          FACTS
              The following facts were adduced at the default prove-up hearing.
              Elena Sylvester borrowed money from Yuh in 2005 and 2006. She
believed the loan from Yuh was unsecured. Later, she discovered that four deeds of trust
in favor of Yuh had been recorded against the home she owned with her husband, Lance
Sylvester. A notice of default had been recorded for one of the deeds of trust.



                                             2
              The Sylvesters filed a lawsuit against Yuh (Orange County Superior Court
case No. 30-2008-00103942), alleging the deeds of trust were forged and appeared to
have been notarized by Yuh‟s daughters, Jia Juh Yuh and Jia Wei Yuh. Yuh filed a
cross-complaint against Elena Sylvester, alleging she owed some $142,000 on the loans.
              Before the forgery case went to trial, the parties reached a settlement, the
terms of which were set forth in a stipulation for entry of judgment (the Stipulation)
executed by the parties in April 2009. Under the terms of the Stipulation, Elena Sylvester
agreed to pay Yuh the sum of $93,000 in four installments between May 2009 and March
2010. Yuh agreed to rescind the notice of default upon execution of the Stipulation,
reconvey the four deeds of trust upon receipt of the first installment payment, and dismiss
the cross-complaint with prejudice upon receipt of the final installment.
              Elena Sylvester made all four installment payments. Yuh rescinded the
notice of default, reconveyed the four deeds of trust, and filed a request for dismissal with
prejudice of the cross-complaint. The dismissal was entered in April 2010.
              On March 5, 2010, Yuh had a forged deed of trust in the amount of $55,000
recorded against the Sylvesters‟ home. He took one of the reconveyed deeds of trust and
used “white out” to cover the amount of $22,000, over which he typed $55,000. He
attached the second page of the $22,000 deed of trust, bearing a disputed signature of
Elena Sylvester, and instructed his daughter, Jia Wei Yuh, to notarize the forged deed of
trust. During his deposition, Yuh testified he forged the $55,000 deed of trust.
              On March 15, 2010, Yuh sent Elena Sylvester a letter demanding she pay
him $55,000. The letter did not mention the forged deed of trust. Ignoring the
Stipulation, Yuh stated in the letter that Elena Sylvester owed $55,000 on the amounts
loaned to her and threatened legal action if she failed to pay him.
              In April 2010, after the dismissal of the cross-complaint had been entered,
Yuh filed a small claims lawsuit against Elena Sylvester. He later filed a proof of service
stating Elena Sylvester had been personally served at her home on May 29, 2010 at

                                             3
9:47 a.m. The proof of service was signed under penalty of perjury by “Tony Lan.” On
May 29, 2010, Elena Sylvester was in the Philippines and her home was unoccupied. She
submitted a photocopy of her passport stamped for arrival in the Philippines on May 17,
2010 and departing the Philippines on May 30, 2010. The address given by the process
server on the proof of service is a vacant lot.
                After receiving a notice of entry of judgment on Yuh‟s small claims
lawsuit, Elena Sylvester retained counsel who filed a motion to vacate the judgment. The
court granted the motion and entered a judgment that Elena Sylvester owed Yuh nothing
on his claim.
                In a letter to the Sylvesters, dated August 3, 2010, Yuh wrote: “Notice is
given to above mentioned party. That you are being sued again in the different Court
very shortly, no matter I won or Loss in this court. [¶] . . . [¶] Especially with your olden
age, it is by all means NOT HEALTHY at all. Please wait for an inauspicious event.”
                In early September 2010, the Sylvesters discovered the $55,000 forged
deed of trust that Yuh had recorded against their home. They were afraid of Yuh and
placed security cameras at their home. Lance Sylvester weekly checked the Orange
County Recorder‟s Office online to see if Yuh had recorded anything else.


                                   PROCEDURAL HISTORY
                In September 2010, after discovering the forged deed of trust, the
Sylvesters filed a verified complaint against Yuh, asserting causes of action for
(1) malicious prosecution, (2) breach of contract, (3) tortious breach of contract,
(4) intentional infliction of emotional distress, (5) abuse of process, (6) cancellation of
instrument, (7) quiet title, and (8) unfair business practices. At some point, the Sylvesters
abandoned the quiet title cause of action, and the judgment does not refer to it.
                In January 2011, the Sylvesters served a set of special interrogatories and a
set of requests for production of documents on Yuh‟s counsel, Thomas F. Nowland of

                                               4
Nowland Stone LLP. Yuh, through his counsel, served responses to the special
interrogatories, which asserted standard boilerplate responses to all of them and answered
only special interrogatory Nos. 19, 20, 21, and 22. The responses were verified by Yuh
and signed by his counsel. Special interrogatory No. 19 asked Yuh if he contended Elena
Sylvester owed him money, and special interrogatory Nos. 20, 21, and 22 asked him to
state all facts and to identify each document and witness supporting such contention.
Yuh answered special interrogatory No. 19, “[y]es.” In response to special interrogatory
No. 20, he stated, “ELENA SYLVESTER borrowed money from responding party and
has not fully repaid responding party”; in response to special interrogatory No. 21, he
identified cancelled checks and the loan agreement; and in response to special
interrogatory No. 22, he identified Lance Sylvester and Elena Sylvester.
              In response to the requests for production of documents, Yuh asserted
standard boilerplate objections and produced documents in response only to request
No. 1, which asked for all documents identified in Yuh‟s responses to the special
interrogatories. The responses to the requests for production of documents were verified
by Yuh and signed by his counsel. The documents produced consisted of 21 pages of
photocopies of checks from 2005 to 2007 and a copy of a document dated April 30, 2007.
Those documents related to the previously settled case.
              Counsel for the Sylvesters and counsel for Yuh exchanged letters regarding
the discovery responses. When counsel spoke at a case management conference, Yuh‟s
counsel declined to agree to provide further discovery responses. On March 28, 2011,
the Sylvesters filed a motion to compel further responses to their special interrogatories
and a motion to compel further responses to their requests for production of documents.
Yuh‟s counsel filed opposition to the motions and argued, among other things, the
motions did not include the separate statement required by the California Rules of Court
governing discovery motions. In response to the oppositions, the Sylvesters took the two



                                             5
motions off calendar and, on April 25, 2011, filed corrected motions that included the
required separate statements. Yuh did not oppose these motions.
              On May 10, 2011, Yuh filed a substitution of counsel, by which he
substituted himself, in propria persona, in place of counsel. He later explained he fired
his counsel because counsel had advised him to assert the Fifth Amendment instead of
responding to discovery.
              On May 24, 2011, the trial court granted the Sylvesters‟ motion to compel
further responses to request for production of documents Nos. 2, 3, and 5, and denied the
motion as to request for production of documents No. 4. The court imposed sanctions of
$750 against Yuh personally. The court granted in full the Sylvesters‟ motion to compel
further responses to the special interrogatories and imposed sanctions of $1,540 against
Yuh personally. On both motions, the court ordered Yuh to provide further responses
within 14 days.
              Yuh did not comply with the order compelling discovery and imposing
sanctions. During his deposition on June 22, 2011, Yuh told the Sylvesters‟ counsel he
would not comply with the order. When the Sylvesters‟ counsel said he would file a
motion to strike the answer if Yuh did not comply with the discovery order within two
weeks, Yuh replied, “I‟d like to see you try.”
              Also during his deposition, Yuh admitted he fabricated and recorded a
$55,000 deed of trust that the Sylvesters never signed, and induced the notary public to
notarize a signature purporting to be that of Elena Sylvester without her being present.
He also admitted he had sued the Sylvesters on a claim that had been settled, and
admitted he might sue Elena Sylvester on the same claim again.
              In July 2011, the Sylvesters filed a motion seeking terminating sanctions
against Yuh for misuse of the discovery process. The motion was made on the ground
that Yuh “willfully failed to obey orders compelling further responses to interrogatories,



                                             6
further responses to demand for production of documents, and payment of sanctions.”
Yuh did not file opposition to the motion.
              The motion for terminating sanctions was heard on August 30, 2011. At
the hearing, the Sylvesters‟ counsel confirmed that Yuh had not served amended
discovery responses, paid the monetary sanctions, or opposed the motion for terminating
sanctions. Yuh responded: “May I ask one more time, it‟s the last time, whatever paper
he need, give me a list, I‟ll do tomorrow morning. Whatever reproduction of
documentation or any question . . . , I will answer anything, because I have special excuse
because my lawyer—I give to him, he doesn‟t want to give to him. That‟s why we fight.
We fired the lawyer. I just don‟t know why he can‟t give me one more . . . chance . . . .”
The trial court gave Yuh one week to comply with the order compelling discovery,
including payment of sanctions, and informed the Sylvesters they could appear ex parte if
he did not timely comply.
              Eight days later, on September 7, 2011, the Sylvesters filed an ex parte
application to strike the answer filed by Yuh and enter his default. In a supporting
declaration, the Sylvesters‟ counsel stated he had received 44 pages of documents from
Yuh in an “unverified mishmash of paper” that did not comply with discovery law. “I am
left to guess,” counsel stated, “which of the 44 pages, if any, are in response to the orders
compelling Responses to Request for Production of Documents, and Interrogatories.”
Counsel had not received payment from Yuh of the monetary sanctions imposed against
him personally.
              On September 8, 2011, the trial court granted the Sylvesters‟ ex parte
application to strike the answer filed by Yuh and enter his default. His answer was
ordered stricken and his default was entered. (Yuh‟s answer does not appear in the
appellate record.) Later that month, Yuh filed an ex parte application for reconsideration
under Code of Civil Procedure section 1008, subdivision (a) and to set aside the default
under Code of Civil Procedure sections 473 and 473.5. The trial court denied Yuh‟s ex

                                              7
parte application on September 23, 2011. On that same day, Yuh filed a noticed motion
to set aside the default and for reconsideration of the order granting terminating
sanctions.
              Before that motion was heard, Yuh filed another noticed motion to set aside
default and default judgment pursuant to Code of Civil Procedure sections 473 and 473.5.
In a supporting declaration, Yuh asserted the Sylvesters‟ counsel had denied his request
for additional copies of the discovery requests, that he had delivered all the documents in
his possession, which were responsive to the requests, and that he believed, in good faith,
that he had complied with the trial court‟s discovery order.
              The court heard Yuh‟s first noticed motion to set aside the default and for
reconsideration on November 1, 2011. At the hearing, Yuh stated the Stipulation was
unfair to him, he accepted it under duress, and he “should have finished the case.” He
acknowledged he had filed the small claims court action against Elena Sylvester “to get
[a] little bit [of] interest of $7,500.” At the end of the hearing, the trial court denied
Yuh‟s motion. Two weeks later, the court denied Yuh‟s second noticed motion to set
aside the default and default judgment. The court found, “no mistake, inadvertence,
surprise, or excusable neglect is shown to support relief pursuant to [Code of Civil
Procedure] Section 473.”
              A default prove-up hearing was conducted on December 19, 2011. The
Sylvesters testified at the hearing. A judgment, entered on the same day, ordered the
cancellation of the forged deed of trust recorded on March 5, 2010, awarded the
Sylvesters compensatory damages of $60,000, punitive damages of $300,000, attorney
fees of $22,986.70, and costs of $1,842, for a total judgment of $384,828.70.
              In April 2012, after filing a notice of appeal from the judgment, Yuh
brought a motion in the trial court to vacate the judgment on the ground it was void “for
lack of due process notice of the damages sought by the Plaintiff[s] in the Complaint.”
The motion was filed by Yuh‟s counsel, Patrick Lund and Gregory Richardson of the

                                               8
Lund Law Group. In their opposition, the Sylvesters pointed out they had served a
statement of damages with the summons and complaint. In May 2012, the trial court
denied the motion to vacate the judgment. Yuh did not file a notice of appeal from the
order denying that motion.


                                        DISCUSSION
                                              I.

               The Trial Court Did Not Abuse Its Discretion by Issuing
                               Terminating Sanctions.
              Yuh argues the trial court abused its discretion by striking his answer and
entering his default as a sanction for misuse of the discovery process. He asserts his
conduct did not rise to the level of discovery abuse that warranted terminating sanctions.
              At the outset, we address Yuh‟s self-description as a “clueless pro per
defendant,” to whom the trial court did not give the same consideration and courtesy
given to attorneys. Throughout much of the proceedings in the trial court, Yuh was
represented by counsel, and he fired his counsel over a disagreement in strategy, not due
to inability to pay his counsel fees. A litigant appearing in propria persona is held to the
same rules as an attorney. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) We
see nothing in the record to suggest the trial court treated Yuh any worse than it would
have treated counsel in the same position.
              “Imposition of sanctions for misuse of discovery lies within the trial court‟s
discretion, and is reviewed only for abuse.” (Doppes v. Bentley Motors, Inc. (2009) 174
Cal.App.4th 967, 991 (Doppes).) The abuse of discretion standard has been described in
these general terms: “The appropriate test for abuse of discretion is whether the trial
court exceeded the bounds of reason.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.)
A trial court exceeds the bounds of reason when, in light of the evidence and the
applicable law, the court‟s decision was not a permissible option. “The abuse of


                                              9
discretion standard . . . measures whether, given the established evidence, the act of the
lower tribunal falls within the permissible range of options set by the legal criteria. „The
scope of discretion always resides in the particular law being applied, i.e., in the “legal
principles governing the subject of [the] action . . . .” Action that transgresses the
confines of the applicable principles of law is outside the scope of discretion and we call
such action an “abuse” of discretion.‟” (Department of Parks & Recreation v. State
Personnel Bd. (1991) 233 Cal.App.3d 813, 831.)
                “California discovery law authorizes a range of penalties for conduct
amounting to „misuse of the discovery process.‟” (Doppes, supra, 174 Cal.App.4th at
p. 991.) As relevant here, misuses of the discovery process include “[f]ailing to respond
or to submit to an authorized method of discovery” (Code Civ. Proc., § 2023.010,
subd. (d)); “[m]aking, without substantial justification, an unmeritorious objection to
discovery” (id., § 2023.010, subd. (e)); “[m]aking an evasive response to discovery” (id.,
§ 2023.010, subd. (f)); and “[d]isobeying a court order to provide discovery” (id.,
§ 2023.010, subd. (g)).
                “[Code of Civil Procedure s]ection 2023.030 authorizes a trial court to
impose monetary sanctions, issue sanctions, evidence sanctions, or terminating sanctions
against „anyone engaging in conduct that is a misuse of the discovery process.‟ [¶] . . .
[¶] As to terminating sanctions, Code of Civil Procedure section 2023.030,
subdivision (d) provides: „The court may impose a terminating sanction by one of the
following orders: [¶] (1) An order striking out the pleadings or parts of the pleadings of
any party engaging in the misuse of the discovery process. [¶] (2) An order staying
further proceedings by that party until an order for discovery is obeyed. [¶] (3) An order
dismissing the action, or any part of the action, of that party. [¶] (4) An order rendering
a judgment by default against that party.‟” (Doppes, supra, 174 Cal.App.4th at
pp. 991-992.)



                                              10
              In Doppes, we explained that in selecting the appropriate sanction, a trial
court “should consider both the conduct being sanctioned and its effect on the party
seeking discovery,” and should tailor the sanction to fit the harm caused by the abuse of
the discovery process. (Doppes, supra, 174 Cal.App.4th at p. 992.) The trial court
cannot impose sanctions for misuse of the discovery process as a punishment. (Ibid.)
“The discovery statutes evince an incremental approach to discovery sanctions, starting
with monetary sanctions and ending with the ultimate sanction of termination.
„Discovery sanctions “should be appropriate to the dereliction, and should not exceed that
which is required to protect the interests of the party entitled to but denied discovery.”‟
[Citation.] If a lesser sanction fails to curb misuse, a greater sanction is warranted:
continuing misuses of the discovery process warrant incrementally harsher sanctions until
the sanction is reached that will curb the abuse. „A decision to order terminating
sanctions should not be made lightly. But where a violation is willful, preceded by a
history of abuse, and the evidence shows that less severe sanctions would not produce
compliance with the discovery rules, the trial court is justified in imposing the ultimate
sanction.‟ [Citation.]” (Ibid., fn. omitted.)
              The trial court did not abuse its discretion by striking the answer and
ordering Yuh‟s default as a sanction for misuse of the discovery process. Yuh‟s
responses to the Sylvesters‟ special interrogatories and requests for production of
documents were utterly inadequate and his boilerplate objections had no merit. Yuh thus
“[f]ail[ed] to respond or to submit to an authorized method of discovery” and he made,
“without substantial justification, an unmeritorious objection to discovery.” (Code Civ.
Proc., § 2023.010, subds. (d) & (e).) Yuh did not oppose the Sylvesters‟ motions to
compel. As the first increment in sanctions to curb Yuh‟s misuse of the discovery
process, the trial court (1) granted the Sylvesters‟ motion to compel further responses to
the special interrogatories and motion to compel further responses to requests for
production documents and (2) imposed monetary sanctions against Yuh personally.

                                                11
              Yuh disobeyed the court‟s order compelling discovery and imposing
monetary sanctions. (Code Civ. Proc., § 2023.010, subd. (g).) He neither provided
further discovery responses nor paid the sanctions. Although by this time he had fired his
counsel and was representing himself, a litigant appearing in propria persona is held to
the same rules and standards as an attorney and is entitled to no greater consideration.
(Rappleyea v. Campbell, supra, 8 Cal.4th at pp. 984-985.) As monetary sanctions had
failed to curb the discovery abuse, the trial court could have stepped up to the next
increment of discovery sanctions and imposed issue or evidentiary sanctions against Yuh.
In response to the Sylvesters‟ motion for terminating sanctions, the court took the more
moderate approach of giving Yuh one more chance to comply with the order compelling
discovery. He yet again disobeyed the order compelling discovery.
              At this point, the trial court‟s permissible range of options included the
imposition of the next level increment of sanctions—terminating sanctions. Yuh‟s
discovery abuses had been quite egregious. After being given two chances to comply
with the order compelling discovery, he had failed even to pay the monetary sanctions.
Other than terminating sanctions, the only option available to the trial court was to
impose issue or evidentiary sanctions against Yuh. The special interrogatories and
requests for production sought information and documents that were the basis for Yuh‟s
claims and defenses. Based on the special interrogatories and requests for production of
documents to which Yuh refused to respond, the appropriate issue sanctions would have
been the functional equivalent of striking his answer and entering his default.
              As terminating sanctions were within the trial court‟s permissible range of
options, the court did not abuse its discretion by ordering entry of Yuh‟s default as a
sanction for misuse of the discovery process.
              Yuh argues the trial court abused its discretion because nothing he did
“came any where [sic] near the abusive conduct even in the cases where this court
reversed similar sanctions.” He cites McGinty v. Superior Court (1994) 26 Cal.App.4th

                                             12
204 (McGinty) and other cases cited by McGinty, in which the Court of Appeal reversed
discovery sanctions for being disproportionate to the sanctioned conduct.
              In McGinty, supra, 26 Cal.App.4th at pages 206-208, the trial court entered
a discovery order disqualifying the plaintiffs‟ expert witness as a sanction because the
witness inadvertently disclosed to the plaintiffs‟ counsel the defendant‟s trade secrets that
had been confidentially disclosed in another action. The Court of Appeal concluded the
sanction was out of proportion to the sanctioned conduct, the prejudice to the defendant
was minimal because the disclosed documents were discoverable, the sanction placed the
defendant in a better position than it would have been absent the violation, and the
sanction was tantamount to dismissing the plaintiffs‟ case. (Id. at pp. 213-214.) In
reaching that conclusion, the McGinty court relied on Wilson v. Jefferson (1985) 163
Cal.App.3d 952, People v. Edwards (1993) 17 Cal.App.4th 1248, Caryl Richards, Inc. v.
Superior Court (1961) 188 Cal.App.2d 300, Fabricant v. Superior Court (1980) 104
Cal.App.3d 905, Yarnell & Associates v. Superior Court (1980) 106 Cal.App.3d 918, and
Fred Howland Co. v. Superior Court (1966) 244 Cal.App.2d 605, as “[c]ases which have
disapproved discovery sanctions for being out of proportion to the sanctioned conduct.”
(McGinty, supra, 26 Cal.App.4th at p. 212.)
              Here, we conclude that terminating sanctions were not out of proportion to
Yuh‟s conduct. Unlike that of the expert witness in McGinty, Yuh‟s conduct was not
inadvertent. Yuh asserts the appropriate sanction might have been “a continuance,
coupled with a sterner admonition and the threat of additional monetary sanctions.” An
order compelling him to comply with discovery and imposing monetary sanctions is a
stern enough admonition. Yuh had been given additional time to comply with the
discovery order, and there was no reason to believe additional monetary sanctions would
have made any difference because he did not pay the sanctions already imposed against
him. Less severe sanctions, and even the threat of terminating sanctions, had not
convinced him to comply with the order compelling discovery.

                                             13
                                             II.

              The Trial Court Did Not Abuse Its Discretion by Denying
                        Yuh’s Motion to Vacate the Default.
              Yuh challenges the trial court‟s order of November 15, 2011, denying his
motion to vacate default and default judgment under Code of Civil Procedure
sections 473 and 473.5. He argues the trial court abused its discretion because he
submitted with his motion evidence that he had complied with the court‟s discovery
order.
              We review an order denying a motion to vacate under Code of Civil
Procedure section 473 under an abuse of discretion standard. (Rappleyea v. Campbell,
supra, 8 Cal.4th at p. 981.) In denying Yuh‟s motion, the trial court found that no
showing of mistake, inadvertence, surprise, or excusable neglect to support relief under
section 473, subdivision (b). The trial court did not abuse its discretion.
              In his declaration submitted with the motion to vacate the default, Yuh
stated he did not comprehend the trial court‟s discovery order and claimed he did not
have the discovery requests propounded by the Sylvesters because his prior counsel kept
all of the case files. Yuh stated that the Sylvesters‟ counsel refused his request for copies
of the discovery requests. When, according to Yuh, he eventually did obtain copies of
the discovery requests from the court clerk, he promptly advised the court and opposing
counsel he would deliver all of the responsive documents to opposing counsel. He stated
he delivered to opposing counsel all of the responsive documents, which exceeded 60
pages, and he attached to the declaration verified responses to the request for production
of documents and special interrogatories. He claimed that, at the hearing on August 30,
2011, he believed in good faith he had “complied with the instructions of this Court” and
that “the striking of my Answer was the result of mistake, excusable neglect,




                                             14
inadverten[ce] and surprise.” Yuh also claimed the Sylvesters‟ counsel failed to inform
the court that he had produced documents in response to the requests for production.
              As the trier of fact, the trial court was the ultimate judge of witness
credibility, and could disbelieve Yuh‟s declaration. (Whyte v. Schlage Lock Co. (2002)
101 Cal.App.4th 1443, 1450.) The trial court would have been justified in disbelieving
Yuh because his assertion that the Sylvesters‟ counsel failed to inform the court he had
produced documents in response to the requests for production was false. When the
Sylvesters‟ counsel applied ex parte on September 7, 2011 for an order striking Yuh‟s
answer, counsel submitted a declaration informing the court he had received 44 pages of
documents from Yuh in an “unverified mishmash of paper” that did not comply with
discovery law. Counsel had not received payment from Yuh of the monetary sanctions.


                                             III.

                  The Evidence at the Default Prove-up Hearing Supported
                      the Compensatory Damages but Not the Amount
                                    of Punitive Damages.
              Yuh argues the amount of damages awarded against him in the default
judgment was, for several reasons, “grossly oppressive” and in violation of Civil Code
              1
section 3359. He argues the damages were excessive because (1) Lance Sylvester had
no connection with Yuh to support the allegations of the complaint; (2) the evidence
submitted by the Sylvesters at the default prove-up hearing was inadmissible and the trial
court failed to fulfill its “gatekeeper” function; (3) the evidence did not support the
amount of compensatory damages awarded; and (4) the evidence did not support the
award of punitive damages.

 1
   Civil Code section 3359 states: “Damages must, in all cases, be reasonable, and
where an obligation of any kind appears to create a right to unconscionable and grossly
oppressive damages, contrary to substantial justice, no more than reasonable damages can
be recovered.”

                                             15
              The complaint asserted eight causes of action: (1) malicious prosecution,
(2) breach of contract, (3) tortious breach of contract, (4) intentional infliction of
emotional distress, (5) abuse of process, (6) cancellation of instrument, (7) quiet title, and
(8) unfair business practices. The judgment found in favor of the Sylvesters on all but the
seventh cause of action, which, apparently, had been dismissed previously. The
judgment cancelled the deed of trust recorded on March 5, 2010, in accordance with the
prayer under the sixth cause of action. The judgment awarded both Elena Sylvester and
Lance Sylvester compensatory damages of $60,000 without allocation among the causes
of action, and awarded them punitive damages of $300,000.


                                              A.
                         Recovery of Damages by Lance Sylvester
              Yuh argues the judgment awarded damages in favor of Lance Sylvester
even though he had no connection with Yuh to support the allegations of the complaint.
Of the eight causes of action asserted in the Sylvesters‟ complaint, all but the first
(malicious prosecution) were brought by both Elena Sylvester and Lance Sylvester.
              Because the Sylvesters did not seek a definite, fixed amount of damages,
they were required to submit evidence at the default prove-up hearing to establish their
entitlement to the amount of damages sought. (Kim v. Westmoore Partners, Inc. (2011)
201 Cal.App.4th 267, 287 (Kim).) The Sylvesters submitted evidence at the default
prove-up hearing that Lance Sylvester suffered damages caused by Yuh under the cause
                                                           2
of action for intentional infliction of emotional distress. Lance Sylvester testified he was


 2
    The elements of a cause of action for intentional infliction of emotional distress are
(1) the defendant engages in extreme and outrageous conduct with the intent to cause, or
with reckless disregard for the probability of causing, emotional distress; (2) the plaintiff
suffers extreme or severe emotional distress; and (3) the defendant‟s extreme and
outrageous conduct was the actual and proximate cause of the plaintiff‟s extreme or

                                              16
afraid of Yuh and believed he would carry out his threats. Lance Sylvester testified he
installed security cameras at his home, constantly watched the front of his home, would
not answer the front door, and weekly checked the Orange County Recorder‟s office Web
site to see if Yuh had recorded anything else. This evidence supported recovery of
compensatory damages by Lance Sylvester.
              Because the evidence supported recovery of damages by Lance Sylvester
for intentional infliction of emotional distress, we do not discuss recovery under the other
causes of action.

                                             B.

               The Evidence Supporting the Compensatory Damages in the
                              Judgment Was Admissible.
              The evidence at the default prove-up hearing consisted of a joint declaration
(with attached exhibits) from Elena Sylvester and Lance Sylvester and their live
testimony. Yuh argues this evidence was inadmissible because “[m]ost of the statements
in their joint declaration for judgment are objectionable on the grounds of hearsay and
for being conclusory.” Yuh does not, however, identify with particularity the parts of the
declaration which, he argues, were inadmissible. We therefore decline to address his
objections to the joint declaration.
              Moreover, the joint declaration and the testimony at the default prove-up
hearing constituted admissible evidence supporting the award of compensatory damages.
The primary function of a default prove-up hearing is for the plaintiff to establish
entitlement to damages when, as here, the complaint does not seek damages in a sum
certain. (Kim, supra, 201 Cal.App.4th at p. 287.) The plaintiff has no responsibility to
provide the court with sufficient evidence to prove the properly pleaded facts in the
complaint, for they are treated as true for purposes of the default judgment. (Id. at

severe emotional distress. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965,
1001.)

                                             17
p. 281.) Most of the joint declaration tracks allegations of the complaint, and a few parts
pertain to compensatory damages. Paragraph 11 refers to Yuh‟s August 2010 letter to the
Sylvesters, warning them to “wait for an inauspicious event” and states a copy of the
letter is attached. In paragraph 11, the Sylvesters stated they “were and are in terror” of
Yuh, and, in paragraph 13, they stated they had incurred $24,347.20 in attorney fees in
prosecuting the lawsuit. At the default prove-up hearing, both Elena Sylvester and Lance
Sylvester testified to the emotional distress that Yuh caused them to suffer. None of this
evidence on damages was objectionable.
              With their complaint, the Sylvesters served a statement of damages
pursuant to Code of Civil Procedure section 425.11. The statement of damages claimed
$60,000 in general damages, which was the amount of compensatory damages awarded
by the trial court. The amount of damages awarded in the judgment therefore complied
with Code of Civil Procedure section 580, subdivision (a) (“[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”).
              Yuh argues the trial court made little inquiry into the Sylvesters‟ claims and
“took no more than ten minutes to conclude the proceedings.” From the transcript of the
default prove-up hearing, we cannot gauge the amount of time the trial court used to
reach its decision, but that is beside the point. However long the proceedings might have
been, the issue is whether the trial court abused its discretion in its award of damages.
              Yuh argues the default prove-up hearing did not comply with the
requirements for a quiet title action. As reflected in the default judgment, the trial court
did not find in the Sylvesters‟ favor on the quiet title cause of action. In his reply brief,
Yuh argues the judgment cancelling the forged deed of trust is a judgment for quiet title.
We disagree. The complaint included a separate cause of action for cancellation of
instrument seeking cancellation of the forged deed of trust. A quiet title action is broader



                                              18
than an action to remove a cloud on title by cancellation of an instrument and is governed
by a separate statute. (5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 655, p. 83.)

                                              C.

                  The Evidence Supported the Amount of Compensatory
                          Damages Awarded in the Judgment.
              Yuh argues the $60,000 in compensatory damages is “unsupportable”
because Lance Sylvester could not bring any causes of action for which he could recover
damages. As we have explained, Lance Sylvester presented evidence supporting
damages under the cause of action for intentional infliction of emotional distress.
              Yuh also argues the default judgment is erroneous because it found in favor
of Lance Sylvester on the first cause of action (malicious prosecution), to which he was
not a party, and on the fifth cause of action (abuse of process), when he was not the
subject of the process abused. This argument has merit. In addition, as we have
explained, Lance Sylvester did not submit evidence of damages on any but the cause of
action for intentional infliction of emotional distress, and neither Lance Sylvester nor
Elena Sylvester can recover damages for unfair business practices.
              Those mistakes can be corrected by modifying paragraph 2 of the judgment
(page 2, lines 3-8) to read as follows: “The court finds in favor of plaintiff Lance
Sylvester and against defendant Lundar Yuh on plaintiffs‟ Fourth Cause of Action for
Intentional Infliction of Emotional Distress only. The court finds in favor of plaintiff
Elena Sylvester and against defendant Lundar Yuh on plaintiffs‟ First Cause of Action
for Malicious Prosecution, Second Cause of Action for Breach of Contract, Third Cause
of Action for Tortious Breach of Contract, Fourth Cause of Action for Intentional
Infliction of Emotional Distress, and Fifth Cause of Action for Abuse of Process.” This
modification would not affect the award of $60,000 in compensatory damages or the
award of punitive damages because Lance Sylvester can share in those damages under
the cause of action for intentional infliction of emotional distress.

                                              19
                                             D.

               The Sylvesters Did Not Present Admissible Evidence of Yuh’s
                 Financial Condition Sufficient to Make a Well-informed
                 Decision Whether the Punitive Damages Are Excessive.
              The judgment awards the Sylvesters punitive damages of $300,000—
precisely the amount claimed in the statement of damages and five times the amount of
                        3
compensatory damages. Yuh argues the punitive damages were excessive and not
supported by the evidence.
              It is unclear whether Yuh is arguing the evidence of his conduct did not
support imposition of punitive damages. Appellate review of a default judgment is
limited to jurisdiction, defects in pleadings, and claims of excessive damages. (See Uva
v. Evans (1978) 83 Cal.App.3d 356, 362-363.) Thus, we cannot review the trial court‟s
decision to impose punitive damages; we can only review the amount awarded. We note,
however, the well-pleaded allegations of the Sylvesters‟ verified complaint, which are
accepted as true, and the joint declaration with exhibits submitted at the default prove-up
hearing, establish Yuh engaged in fraud and oppression, and acted maliciously. (See Civ.
Code, § 3294, subd. (a).)
              The permissible amount of punitive damages is constrained both by federal
due process and by California state law. “A court determining whether a punitive
damages award is excessive under the due process clause must consider three guideposts:
„(1) the degree of reprehensibility of the defendant‟s misconduct; (2) the disparity
between the actual or potential harm suffered by the plaintiff and the punitive damages
award; and (3) the difference between the punitive damages awarded by the jury and the
civil penalties authorized or imposed in comparable cases. [Citation.]‟” (Bullock v.


 3
   The Sylvesters preserved their right to recover punitive damages on a default
judgment by serving a statement of punitive damages on Yuh, pursuant to Code of Civil
Procedure section 425.115, subdivisions (b) and (f), before entry of default. (Matera v.
McLeod (2006) 145 Cal.App.4th 44, 60.)

                                            20
Philip Morris USA, Inc. (2011) 198 Cal.App.4th 543, 558, quoting State Farm Mut.
Automobile Ins. Co. v. Campbell (2003) 538 U.S. 408, 418.) Under California law, the
defendant‟s financial condition is “an essential factor” in setting the amount of punitive
damages. (Simon v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159, 1185.)
              Yuh challenges the amount of punitive damages as excessive on several
grounds, one of which, we conclude, has merit. Yuh asserts the punitive damages award
is not supported by substantial evidence of his net worth. “A reviewing court cannot
make a fully informed determination of whether an award of punitive damages is
excessive unless the record contains evidence of the defendant‟s financial condition.”
(Adams v. Murakami (1991) 54 Cal.3d 105, 110 (Adams).) “Absent such evidence, a
reviewing court cannot make an informed decision whether the amount of punitive
damages is excessive as a matter of law.” (Id. at p. 118.) The plaintiff has the burden of
proof of a defendant‟s financial condition. (Id. at p. 120.)
              The Adams court did not prescribe a rigid standard for measuring a
defendant‟s ability to pay punitive damages and stated it could not conclude, based on the
record before it, “that any particular measure of ability to pay is superior to all others or
that a single standard is appropriate in all cases.” (Adams, supra, 54 Cal.3d at p. 116,
fn. 7.) Net worth is often described as “the critical determinant of financial condition”;
however, “there is no rigid formula and other factors may be dispositive especially when
net worth is manipulated and fails to reflect actual wealth.” (County of San Bernardino v.
Walsh (2007) 158 Cal.App.4th 533, 546.)
              Appellate courts have interpreted Adams to require the plaintiff to provide a
balanced overview of the defendant‟s financial condition; a selective presentation of
financial condition evidence will not survive scrutiny. (See Baxter v. Peterson (2007)
150 Cal.App.4th 673, 676, 681 [record “silent with respect to . . . liabilities” is
insufficient]; Kelly v. Haag (2006) 145 Cal.App.4th 910, 916-917; Robert L. Cloud &
Associates, Inc. v. Mikesell (1999) 69 Cal.App.4th 1141, 1151-1153; Lara v. Cadag

                                              21
(1993) 13 Cal.App.4th 1061, 1063-1064.) Courts may not infer sufficient wealth to pay a
punitive award from a narrow set of data points, such as ownership of valuable assets or a
substantial annual income.
               In this case, the totality of evidence presented at the default prove-up
hearing of Yuh‟s financial condition is the following passage from the Sylvesters‟ joint
declaration:
               “15. At his deposition LUNDAR YUH testified that he owns the following
property:
               “1. 850 South Western Avenue, Anaheim, CA 92804
               “Value:                     $500,000.00
               “1st Mortgage:              $150,000.00
               “2nd Mortgage:              $300,000.00


               “2. 10391 Magnolia Avenue, Anaheim, CA 92804
               “Value:                     $400,000.00
               “1st Mortgage:              $200,000.00


               “3. 4566 Maplewood Avenue, Los Angeles, CA 90004
               “Value:                     $600,000.00
               “1st Mortgage:              $500,000.00
               “3 Units:                   Generating $4,000.00/month rent

               “4. 1909-1913 4th Street, Long Beach, CA
               “Owned free and clear of mortgages
               “Restaurant generating $1800.00/month rent


               “(See page 22 line 1 through Page 26 line 8).”



                                              22
              This portion of the joint declaration is inadmissible for lack of foundation
because the Sylvesters never stated they attended Yuh‟s deposition or read the deposition
transcript (Evid. Code, § 702 [testimony of witness is inadmissible unless witness has
personal knowledge of matter]) and because it is inadmissible hearsay (Evid. Code,
§ 1200). The relevant passages of Yuh‟s deposition testimony are not attached to the
joint declaration, the joint declaration states only that a copy of the deposition transcript
“is made available to the court,” and the appellate record lacks a notice of lodging or any
other evidence the transcript was actually presented to the trial court. The transcript of
Yuh‟s deposition is not part of the appellate record.
              Even if this part of the joint declaration were admissible, it would not
provide a balanced picture of Yuh‟s financial condition. Instead, the information in the
joint declaration was a select presentation of Yuh‟s financial condition based on his
ownership of several assets. The Sylvesters did not present balance sheets, profit/loss
statements, income statements, a complete list of assets, or other documentation
presenting a balanced overview of Yuh‟s financial condition. The joint declaration does
not provide a value for property No. 4 and purports to identify only the monthly rental
generated by property Nos. 3 and 4, not the monthly net income. We may not infer
sufficient wealth to pay a punitive award of $300,000 from the limited and narrow data
provided in the joint declaration.
              In Baxter v. Peterson, supra, 150 Cal.App.4th at page 681, the appellate
court reversed a punitive damage award of $75,000 because the record demonstrated only
current ownership of substantial assets (about 10 residential rental properties, at least two
of which were valued at more than $700,000), without any evidence whether there were
mortgages on those assets or whether the rental properties were profitable. The plaintiff
did not present evidence of the defendant‟s compensation from employment. (Ibid.) “In
sum, although the record shows that [the defendant] owns substantial assets, it is silent



                                              23
with respect to her liabilities. The record is thus insufficient for a reviewing court to
evaluate [the defendant]‟s ability to pay $75,000 in punitive damages.” (Ibid.)
              Here, the joint declaration did purport to give the amount of the mortgages
against three pieces of Yuh‟s real property and the amount of monthly income from two
of them. Nonetheless, the joint declaration sought to provide a picture of Yuh‟s financial
condition based only on the purported value of four selected assets. The information
does not provide “meaningful evidence of [Yuh‟s] financial condition.” (Adams, supra,
54 Cal.4th at p. 109.)
              There are two exceptions to the rule in Adams. One exception is that the
plaintiff‟s burden of producing evidence of the defendant‟s financial condition may be
excused if the defendant violates an order compelling production of financial information
at trial. (Caira v. Offner (2005) 126 Cal.App.4th 12, 37-38.) The other exception is that
evidence of a defendant‟s profit from the wrongdoing at issue in a fraud action may form
a basis for punitive damages up to the amount of the wrongful profits, even with evidence
of the defendant‟s financial condition. (Cummings Medical Corp. v. Occupational
Medical Corp. (1992) 10 Cal.App.4th 1291, 1298-1301.) Neither exception applies to
this case.
              We need not, however, reverse the part of the judgment awarding punitive
damages. The Sylvesters are entitled to recover punitive damages; the only question is
the amount. In such a situation, we may strike the award of punitive damages and
remand for a new trial on the amount of punitive damages alone, based on evidence of
Yuh‟s financial condition at the time of retrial. (See Tomaselli v. Transamerica Ins. Co.
(1994) 25 Cal.App.4th 1269, 1286; Lara v. Cadag, supra, 13 Cal.App.4th at p. 1065;
Washington v. Farlice (1991) 1 Cal.App.4th 766, 777.) The Sylvesters may subpoena
documents and witnesses to be available at retrial for the purpose of establishing Yuh‟s
financial condition, and, in addition, we will direct the trial court to enter an order
permitting discovery of Yuh‟s financial condition. (Civ. Code, § 3295, subd. (c).)

                                              24
              Because we conclude the award of punitive damages cannot be sustained on
state law grounds, we do not consider whether the punitive damages are excessive under
the due process clause.

                                            IV.

              We Lack Jurisdiction to Consider Yuh’s Challenge to the
                   Postjudgment Order Denying the Motion to
                          Vacate the Default Judgment.
              Yuh argues the trial court abused its discretion by denying his motion to
vacate the default judgment. Yuh filed the motion in April 2012, after he filed the notice
of appeal from the default judgment in March. On May 10, 2012, the trial court entered
an order denying Yuh‟s motion to vacate the judgment.
              An order denying a postjudgment motion to vacate a judgment is an
appealable order. (Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1137; Generale Bank
Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1394.) A notice of
appeal from the order denying Yuh‟s postjudgment motion to vacate the judgment does
not appear in the record. Yuh‟s notice of appeal was filed before Yuh brought the motion
to vacate the default judgment and therefore does not mention or include the order
denying it. As the order denying the motion to vacate the judgment was separately
appealable, and Yuh did not file a notice of appeal from it, we lack jurisdiction to
consider his challenge to that order.


                                        DISPOSITION
              The award of punitive damages in the judgment is stricken and the matter is
remanded for a new default prove-up hearing only on the issue of the amount of punitive
damages. We direct the trial court to issue an order under Code of Civil Procedure
section 3295, subdivision (c), permitting the Sylvesters to conduct discovery into Yuh‟s
financial condition. We also direct the trial court to modify paragraph 2 of the judgment


                                             25
(page 2, lines 3-8) to read as follows: “The court finds in favor of plaintiff Lance
Sylvester and against defendant Lundar Yuh on plaintiffs‟ Fourth Cause of Action for
Intentional Infliction of Emotional Distress only. The court finds in favor of plaintiff
Elena Sylvester and against defendant Lundar Yuh on plaintiffs‟ First Cause of Action
for Malicious Prosecution, Second Cause of Action for Breach of Contract, Third Cause
of Action for Tortious Breach of Contract, Fourth Cause of Action for Intentional
Infliction of Emotional Distress, and Fifth Cause of Action for Abuse of Process.”
              In all other respects, and as modified, the judgment is affirmed. The
Sylvesters shall recover costs incurred on appeal.




                                                  FYBEL, J.

WE CONCUR:



O‟LEARY, P. J.



MOORE, J.




                                             26
