Judge: Cherol J. Nellon, Case: 23STCV00097, Date: 2023-10-31 Tentative Ruling
Case Number: 23STCV00097 Hearing Date: January 3, 2024 Dept: 14
6021 Carlton Way, LLC v. FBSR Franchises, Inc.
Case Background
This is an action to recover unpaid
rent.
On January 4, 2023, Plaintiff filed
its Complaint for (1) Breach of Contract and (2) Breach of Guaranty against Defendants
FBSR Franchises, Inc. (“FBSR”), Lord Brice Barrington aka Barron Barrington (“Barrington”),
and DOES 1-25.
On March 14, 2023, the defaults of
Defendants FBSR and Barrington were entered.
Instant Motion
On October 31,
2023, this court denied Plaintiff’s application for default judgment on the
basis that the complaint did not provide proper notice of damages. The court gave
Plaintiff the option of accepting the lower limit of damages pled (i.e.
$100,000) or setting aside the defaults and re-pleading the case.
Plaintiff
now moves this court for an order reconsidering its prior decision or, in the
alternative, setting aside the defaults and granting leave to amend.
Decision
The request
for reconsideration is DENIED.
The alternative
request is GRANTED. The defaults of Defendants FBSR and Barrington are VACATED.
Plaintiff is to file an amended complaint within 30 days.
Governing Standard
Code of Civil Procedure § 1008
states in pertinent part as follows:
“(b) A party who originally made an
application for an order which was refused in whole or part, or granted conditionally
or on terms, may make a subsequent application for the same order upon new or
different facts, circumstances, or law, in which case it shall be shown by
affidavit what application was made before, when and to what judge, what order
or decisions were made, and what new or different facts, circumstances, or law
are claimed to be shown. For a failure to comply with this subdivision, any
order made on a subsequent application may be revoked or set aside on ex parte
motion.
…
(c) If a court at any time
determines that there has been a change of law that warrants it to reconsider a
prior order it entered, it may do so on its own motion and enter a different
order.
…
(e) This section specifies the
court's jurisdiction with regard to applications for reconsideration of its
orders and renewals of previous motions, and applies to all applications to
reconsider any order of a judge or court, or for the renewal of a previous
motion, whether the order deciding the previous matter or motion is interim or
final. No application to reconsider any order or for the renewal of a previous
motion may be considered by any judge or court unless made according to this
section.”
“The party seeking reconsideration must provide not just new
evidence or different facts, but a satisfactory explanation for the failure to
produce it at an earlier time.” Glade v. Glade (1995) 38 Cal.App.4th
1441, 1457. This requirement also applies to new or different law. Baldwin
v. Home Sav. Of America (1997) 59 Cal.App.4th 1192, 1200. New law is authority arising after the
court’s decision, and different law is a principle different than that originally
produced. Id. at 1196-97.
Discussion
Plaintiff’s
argument hinges on the fact that the complaint gives the defendant a possible
range of damages (from $100,000 to $500,000) and that the damages sought are
within the range. Plaintiff refers the court to Sass v. Cohen (2020) 10
Cal.5th 861, 879, which addressed default hearings in accounting
actions, where the plaintiff cannot, by definition, estimate damages ahead of
time. But this is not an accounting action. And the result in Sass was
that the plaintiff had to follow the exact procedure outlined by this court in
its prior order – amend the complaint to plead a specific amount and re-serve. Id.
at 880-883. Proper notice requires the pleading of a specific damages amount,
not identification of a wide range of possible outcomes.