Judge: Armen Tamzarian, Case: 23STCV14994, Date: 2024-06-27 Tentative Ruling

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Case Number: 23STCV14994    Hearing Date: June 27, 2024    Dept: 52

Order to Show Cause Re: Default Judgment

Plaintiff Deborah Justice requests court judgment by default against defendant Allyson Maren Carey.  Plaintiff’s application for default judgment has three defects. 

First, plaintiff did not request dismissal of defendants Does 1-5.  A request for default judgment must include “[a] dismissal of all parties against whom judgment is not sought or an application for separate judgment against specified parties under Code of Civil Procedure section 579, supported by a showing of grounds for each judgment.”  (Cal. Rules of Court, rule 3.1800(a)(7).)  Plaintiff does not seek default judgment against the Doe defendants.  They therefore must be dismissed. 

Second, plaintiff did not submit “[a] proposed form of judgment.”  (Cal. Rules of Court, rule 3.1800(a)(6).)  Plaintiff must submit a proposed judgment on Judicial Council Form JUD-100. 

Third, plaintiff seeks excessive attorney fees of $8,538.50.  A prevailing party can only recover attorney fees when authorized by contract, statute, or law.  (CCP § 1033.5(a)(10).)  Plaintiff relies on the parties’ written lease agreement.  (Comp., Ex. A.)  It provides, “In any action or proceeding arising out of this Agreement, the prevailing party between Landlord and Tenant shall be entitled to reasonable attorney fees and costs, collectively not to exceed $1,000 (or $500__), except as provided in paragraph 35A.”  (Id., p. 6, ¶ 36.)  Paragraph 35.A only provides an exception under which someone “shall not be entitled to recover attorney fees.”  (Id., p. 6, ¶ 35.A.)  Plaintiff therefore cannot recover more than $500 in attorney fees under this contract.

The order to show cause re: default judgment is hereby continued to August 2, 2024, at 8:30 a.m.