Judge: Armen Tamzarian, Case: 21STCV23213, Date: 2023-01-05 Tentative Ruling
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Case Number: 21STCV23213 Hearing Date: January 5, 2023 Dept: 52
Order to Show Cause Re: Entry of Default Judgment
The clerk has entered the defaults of defendants PS Realty Holdings, Inc., Nancy
Zavaleta, Romero Rosario, and Shikha Sethi.
Plaintiffs Arrowquoia Harper and Sarah B. Gordon have not requested
entry of default judgment against defendants.
Failure to Timely
Obtain Default Judgment
Plaintiffs did not timely request entry of default
judgment. “When a default is entered,
the party who requested the entry of default must obtain a default judgment
against the defaulting party within 45 days after the default was entered,
unless the court has granted an extension of time. The court may issue an order to show cause
why sanctions should not be imposed if that party fails to obtain entry of
judgment against a defaulting party or to request an extension of time to apply
for a default judgment within that time.”
(Cal. Rules of Court, rule 3.110(h).)
The clerk entered the default of the final named
defendant, PS Realty Holdings, Inc., on November 7, 2022. More than 45 days have passed. Plaintiffs have neither requested an
extension nor filed a request for court judgment.
When plaintiffs request court judgment, they must include:
1.
a CIV-100 form
requesting court judgment by default;
2.
a brief summary
of the case;
3.
evidence proving
their damages;
4.
a proposed form
of judgment; and
5.
a request for dismissal
of defendants Does 1-20.
(Cal.
Rules of Court, rule 3.1800(a).)
Inadequate
Proof of Service on Defendant PS Realty Holdings, Inc.
Plaintiffs did not file adequate proof of service on
defendant PS Realty Holdings, Inc. “A
summons may be served on a corporation by delivering a copy” to: (a) “the
person designated as agent for service of process,” or (b) “the president,
chief executive officer, or other head of the corporation, a vice president, a
secretary or assistant secretary, a treasurer or assistant treasurer, a
controller or chief financial officer, a general manager, or a person
authorized by the corporation to receive service of process.” (Code Civ. Proc., § 416.10.)
Plaintiffs’ proof of service states the person to be
served on behalf of PS Realty Holdings, Inc. was “Shikha Sethi, authorized
agent.” This proof of service is
insufficient because plaintiffs provide no evidence or explanation of how
Shikha Sethi is an authorized agent for service for PS Realty Holdings, Inc. The corporation’s statement of information
filed with the Secretary of State does not list Shikha Sethi as an officer,
director, or agent for service of process.
It also states the corporation’s principal address is 1711 W. 253rd St.,
Lomita, CA 90717, while the proof of service shows substituted service on
Shikha Sethi at a different address, 1313 Via Romero, Palos Verdes Estates, CA
90274.
The court will vacate the default entered against
defendant PS Realty Holdings, Inc. because plaintiffs have not shown adequate
proof of service. Plaintiffs must either
serve summons on PS Realty Holdings, Inc. via one of the people included on its
statement of information or provide a declaration with competent evidence
establishing that PS Realty Holdings, Inc. has authorized Shikha Sethi as an
agent to receive service of process.
(Code Civ. Proc., § 416.10, subds. (a) & (b).)
Excessive
Damages
Though plaintiffs have not yet requested
default judgment, each of their requests for default includes the amounts of
damages and other relief they seek. The
requests specify damages of $400,000, which exceeds the amount demanded in the
complaint. “The relief granted to the
plaintiff, if there is no answer, cannot exceed that demanded in the complaint.” (Code Civ. Proc., § 580, subd. (a).) “A default judgment greater than the amount
specifically demanded in the complaint is void as beyond the court’s
jurisdiction.” (Airs Aromatics, LLC
v. CBL Data Recovery Technologies, Inc. (2018) 23 Cal.App.5th 1013,
1018.)
Plaintiffs’ requests for entry of default state the
“demand of complaint” is $400,000. The
complaint, however, demands damages “in no event less than … $68,340” on the
first three causes of action—which are alleged only against defendant PS Realty
Holdings, Inc. The complaint does not
specify any amount demanded for the fourth, fifth, or ninth causes of action. On the sixth and seventh causes of action,
plaintiffs request a minimum of “4,000 per violation” under Civil Code section
52, subdivision (a) and a civil penalty of $25,000 under Civil Code section 52,
subdivision (b). On the eighth cause of
action, plaintiffs request “statutory damages in an amount no less than $100
and not more than $1,000 per violation.”
The complaint’s demands therefore total $127,340
against defendant PS Realty Holdings, Inc. ($68,340 + $4,000 + $25,000 + $4,000
+ $25,000 + $1,000) and $59,000 against defendants Nancy Zavaleta, Romero Rosario, or
Shikha Sethi ($4,000 + $25,000 + $4,000
+ $25,000 + $1,000). Based on the relief demanded in this
complaint, plaintiffs cannot obtain a default judgment greater than those
totals. A judgment for any greater
amount would exceed the court’s jurisdiction.
Excessive
Attorney Fees
Plaintiffs
also request excessive attorney fees of $25,000. Local Rule 3.214(a) provides a schedule for reasonable
attorney fees on default judgments. For
amounts over $100,000, fees are set at $2,890 plus 1% of the excess over
$100,000. Even if plaintiffs could
recover the $400,000 in damages specified in their requests for entry of
default, their reasonable attorney fees would be $5,890.
Disposition
The court hereby vacates the default of defendant PS Realty Holdings,
Inc.
The court hereby continues the order
to show cause re: entry of default judgment to April 3, 2023, at 8:30 a.m.