Department 58

Hearing Date: April 12, 2024

Case Name: Kushnir v. Lehive

Case No.: 22STCV35756

Matter: Default Judgment prove-up

Moving Party: Plaintiff Stephen Kushnir

Responding Party: Unopposed

Tentative Ruling: The request for default judgment is denied.

This action arises from Plaintiff Stephen Kushnir’s $50,000 investment in Defendant Jeremy David Lehive’s company in exchange for a 25% interest in this business. On November 10, 2022, Plaintiff filed a Complaint alleging cause of action for (1) Breach of Contract; (2) Negligent Misrepresentation; (3) Fraud; (4) Violation of Corp. Code § 25110; (5) Violation of Corp. Code § 25401; (6) Violation of Corp. Code § 25504; (7) Violation of Corp. Code § 25504.1; (8) Violation of Bus. & Prof. Code §§ 17200 et seq.; and (9) Money Had and Received.

No responsive pleading was filed. Default was entered as to Defendant Jeremy David Lehive on February 8, 2024. Further, Does 1-20 have been dismissed.

Plaintiff now moves for default judgment against Defendant Jeremy David Lehive. The request for entry of default judgment is denied.

Discussion

Plaintiff seeks default judgment against Defendant Lehive in the amount of $264,189.67, which includes $12,506.82 in interest and $1,669.15 in costs.

“Plaintiffs in a default judgment proceeding must prove they are entitled to the damages claimed.” (Barragan v. Banco BCH (1986) 188 Cal.App.3d 283, 302 [citing Code Civ. Proc., § 585 and Taliaferro v. Hoogs (1963) 219 Cal.App.2d 559, 560].) If evidence is presented by declaration, the facts must be shown to be “within the personal knowledge of the affiant and shall be set forth with particularity, and each affidavit shall show affirmatively that the affiant, if sworn as a witness, can testify competently thereto.” (Code Civ. Proc., § 585, subd. (d).)

Here, Plaintiff provides a declaration adequately evidencing Plaintiff’s damages in the amount of $30,000. (Kushnir Decl., ¶¶ 1-8.) However, Plaintiff’s request for general damages including emotional distress, loss of use of the investment funds, financial uncertainties, and the substantial time and effort devoted to the investment and seeking my money back, in the total amount of $200,000 is entirely without inadequate and without foundation. (Kushnir Decl., ¶ 8.)

Nor has Plaintiff provided an adequate calculation for its prejudgment interest request of $12,506.82. (Cal. Rules of Court, rule 3.1800(a)(3).) In particular, Plaintiff does not identify when the interest began to accrue on his claim.

However, Plaintiff has substantiated his request for costs in the amount of $1,669.15. (4/3/24 Memo. of Costs.)

Accordingly, the request for entry of default judgment is denied.

Alternatively, the Court will enter default judgment against Defendant Lehive in the amount of $30,000 plus interest and costs upon the submission of an adequate interest calculation.