Judge: Christian R. Gullon, Case: 22PSCV00931, Date: 2023-07-20 Tentative Ruling
Case Number: 22PSCV00931 Hearing Date: July 20, 2023 Dept: O
Tentative Ruling
PLAINTIFF'S
APPLICATION FOR DEFAULT JUDGMENT is DENIED without prejudice for failure
to file prelitigation demand letter. In the alternative, the application is granted in the
reduced amount of $5,726.77.
Background
This is an
ADA case based upon architectural barriers filed by Antonio Fernandez.
On December
16, 2022, default was entered against Defendant.
On July 5,
2023, Plaintiff filed the instant application.
Discussion
According to
Civil Code section 55.3(4), “[a]n attorney shall
provide a written advisory with each demand for money or complaint sent to or
served by him or her upon a defendant.”
Here, however, there is no filing in the docket that this requirement
was met.[1]
To the extent this requirement was met, the application
would be granted in a reduced amount as to the attorney fees and costs.
First, as for attorney fees, it does not amount to $4,300.00
in an action wherein a boilerplate complaint was filed by an ADA tester/high
frequency litigant and the defendant did not answer, precluding need for
substantive motions. Utilizing a Lodestar approach, and in view of the totality
of the circumstances—the court determines that the total and reasonable amount
of attorney’s fees and costs incurred for the work performed in connection with
this application is $1,100 [$200/hour x 5.5 hours].[2]
Second, as for costs, the judgment seeks $826.77 in costs,
including $200 for “other” costs. As other costs have not been explained on the
CIV-100 form, the judgment would be reduced by $200 (leaving $165.60 in filing
fees and $461.17 for process server’s fees [$626.77]).[3]
Therefore, judgment would be entered in the reduced amount of
$5,726.77, not $9,126.77.
Conclusion
Based on the
foregoing in that the written advisory was not provided to Defendant, the
application is denied without prejudice.
[1] Furthermore, a
review of Plaintiff Counsel’s billing entries does not show billing for
drafting of a demand letter, suggesting this requirement was not met.
(Although, should be noted, appears the parties appeared to settle the matter.)
[2] Counsel’s
declaration does not provide the total hours expended on the hour, but more so
provides an explanation as to the background/resumes of the individuals/attorneys
who worked on the case.
[3] Plaintiff’s billing
entries provide a $200 fee for the investigator. (Gunderson Decl, p. 29 of 30
of PDF.) But as the CIV-100 form does not specify what the $200 costs covered;
the court cannot make the assumption that the $200 cost on the CIV-100 form is
for the investigator fee.