Unreported / Non-Citable
Background
Rajashaker and Sally Reddy sued Joseph Orlosky, doing business as AON Engineering, over residential solar-panel, battery, and heater work. Their January 26, 2024 complaint alleged breach of contract, breach of express warranty, breach of the covenant of good faith and fair dealing, and negligence. They alleged roof leaks, improper heater installation, and battery failures. A process server's proof stated that he personally served Orlosky at a Jamul address on February 24, 2024. After Orlosky did not respond, the court entered his default on March 26, 2024. The Reddys filed an application for default judgment on August 23, 2024, requesting $55,033 in damages and $637 in costs. The trial court issued a minute order on September 6, 2024 stating that default judgment was entered, but the formal written judgment was not issued until April 4, 2025, awarding $55,670.
Orlosky moved under Code of Civil Procedure section 473.5, denying personal service and attacking the proof of service as dishonest. The server described speaking through a locked gate with a man identifying himself as Orlosky and leaving visible papers in the gate after the man refused them. Orlosky and neighbors supplied declarations disputing his presence and describing papers left at an unoccupied property. The trial court denied the motion without prejudice, citing defects in the declarations, section 473.5's inapplicability to an invalid-service theory, and insufficient proof concerning avoidance of service. Orlosky filed a motion for reconsideration on March 7, 2025, rather than filing another relief motion; the reconsideration motion was denied on June 6, 2025, and he appealed from the default judgment.
The Court’s Holding
The Court of Appeal affirmed the trial court's denial of section 473.5 relief on two independent grounds. First, that statute addresses valid, often constructive, service that does not produce timely actual notice. Orlosky instead claimed that personal service never occurred, making his theory one of invalid service and a potentially void judgment. The court identified section 473, subdivision (d), extrinsic-fraud-or-mistake relief, and an independent equitable action as other possible routes discussed in California Capital. It also noted that the section 473.5 deadlines would not govern a void-judgment motion under section 473(d), and that no written notice triggering the 180-day period appeared in this record.
Second, Orlosky's declarations omitted both a place of execution and a statement that they were made under California's perjury laws. Under section 2015.5 and Kulshrestha, saying only 'under penalty of perjury' did not establish admissibility. Without admissible supporting evidence, Orlosky could not establish the elements of section 473.5 relief. The appellate court did not decide the trial court's separate rationale concerning improper reply evidence. It also declined Orlosky's new equitable-grounds argument because he had not presented it below and could have renewed his request after the denial without prejudice.
The damages challenge succeeded. Section 580 generally caps default relief at the complaint's demand, and the complaint identified $40,000 despite using 'at least' and 'approximately.' Those phrases did not enlarge the demand, so the $55,670 judgment exceeded the court's jurisdiction. The underlying default nevertheless remained valid. Because the Reddys did not seek to amend and agreed to modification, the court used section 906 to modify the judgment to $40,000 plus the separately recoverable $637 in costs, for a total of $40,637. It affirmed the judgment as modified and ordered each side to bear its own appellate costs.
Key Takeaways
- Section 473.5 concerns valid service without timely actual notice, not a defendant's claim that service itself was invalid.
- A declaration must show a California place of execution or invoke California's perjury laws to satisfy section 2015.5.
- A default judgment exceeding the complaint's specific monetary demand is void to that extent, while the underlying default can remain intact.
- Words such as 'at least' and 'approximately' do not increase a stated damages demand for purposes of section 580.
- The appellate court modified the judgment to $40,637 rather than disturbing the default, and the parties must bear their own costs on appeal.
Why It Matters
The decision separates two frequently confused default-relief problems: lack of actual notice after valid service and a claim that defective service makes the judgment void. It also shows how declaration-form defects can independently defeat a motion without resolving competing eyewitness accounts.
On damages, the opinion applies the complaint's demand as a strict jurisdictional ceiling while preserving the default and allowing a tailored modification. The court additionally noted newly enacted section 473.2 for unserved parties, effective January 1, 2027, but did not apply it to decide this appeal.