Judge: Christian R. Gullon, Case: 22PSCV00694, Date: 2024-02-26 Tentative Ruling

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Case Number: 22PSCV00694    Hearing Date: March 14, 2024    Dept: O

Tentative Ruling

(1)   Plaintiff’s Application for Default Judgment is DENIED without prejudice, notably because (1) statement of damages (SOD) not served and (2) general damages not explained.

(2)   Plaintiff’s Counsel Timothy M. Ghobrial’s Motion to Be Relieved as Counsel is GRANTED effective upon see below [*Defendant has not been served*].

Background

This is a negligence case.

On July 11, 2022, Plaintiff Armando Parras filed suit against Defendant Pico Mobility, LLC for (1) strict products liability and (2) negligence alleging that the motorized scooter made by Defendant malfunctioned and caused Plaintiff to collide with a motor vehicle.

On March 17, 2023, default was entered against Defendant.

On October 24, 2023, Plaintiff filed the instant application.

On February 14, 2024, Plaintiff’s Counsel filed the instant motion to be relieved as counsel.

On February 21, 2024, the court continued the hearing on the default judgment.

On March 4, 2024, Plaintiff’s Counsel filed his declaration re: OSC re: Default Judgment.

Discussion

Plaintiff seeks judgment in the amount of $29,074.11 against Defendant. As more specifically stated in Counsel Ghobrial’s declaration, Plaintiff requests that the Court enter Judgment in favor of himself against Defendant in the amount of $4,074.11 for special damages and $25,000.00 in general damages, for a total judgment of $29,074.11.

Here, however, there are two defects.

Defect No. 1: No SOD Served

First and foremost, while Counsel states it has served a SOD, the SOD does not appear to be filled out. (Ghobrial Decl., Ex. A.) The SOD must provide actual notice of the nature and amount of damages being sought by plaintiff—i.e., the potential liability defendant faces. [Schwab v. Rondel Homes, Inc. (1991) 53 C3d 428, 433, 280 CR 83, 86.) This is of import because the SOD limits the amount of actual damages the plaintiff can recover in a default judgment. (See CCP §§ 580(a), 585(a) to (c); Matera v. McLeod (2d Dist.2006) 145 Cal.App.4th 44, 60.)

With no SOD served, request for entry of default judgment is premature as default itself was prematurely entered. The plaintiff must serve the defendant with this statement before a default may be taken, even if the defendant has not requested a statement. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1521.)  When a statement of damages is required but not served, the underlying entry of default is invalid. (Dep’t of Fair Employment & Housing v. Ottovich (2014) 227 Cal.App.4th 706, 712.) Serving a defendant after entry of default is not sufficient. (Hamm v. Elkin (1987) 196 Cal.3d 1343, 1346.)[1]

Therefore, as Defendant was not served with a SOD—which is designed to give defendants “one last clear chance” to respond to the allegations of the complaint by providing them with actual notice of their exact potential liability—the default judgment application is premature as default was prematurely entered. (Connely v. Castillo (1987) 190 Cal.App.3d 1583, 1588.)

Defect No. 2: Evidence/Explanation of General Damages

Second, even assuming arguendo an SOD was served, the application would be denied without prejudice for another reason: Plaintiff has not explained how it calculated its general damages.[2] “General damages” includes pain and suffering, emotional distress, loss of privacy and other “subjective” detriment that is not directly quantifiable. [Beeman v. Burling, supra, 216 CA3d at 1599, 265 CR at 727].) Aside from a conclusive number provided, there is no explanation by Plaintiff as to his general damages.

Conclusion

Based on the foregoing, the default judgment application is denied without prejudice.

Motion to Be Relieved as Counsel

As for the motion to be relieved as counsel, Counsel explains that there has been a breakdown in the attorney client relationship.

Here, Counsel has complied with California Rules of Court Rule 3.1362 (filed MC-051, 052, and 053 forms). As for any potential prejudice, Plaintiff has filed no opposition to the change of counsel. And based on the docket, as Defendant is in default such that there are no substantive motions on calendar that require the immediate or urgent need for counsel, the court finds no prejudice in granting the motion.

The only defect noted is that the proof of service attached to the MC-052 form does not indicate that Defendant has been served. All parties to an action must be served.

Conclusion

Based on the foregoing, Plaintiff’s Counsel’s Motion to Be Relieved as Counsel is GRANTED, effective upon serving the notice of the motion and motion itself to Defendant and serving this court’s order relieving Counsel sent to Plaintiff, Defendant, and all other parties who have appeared in the case.