Judge: Christian R. Gullon, Case: 23PSCV00452, Date: 2023-11-08 Tentative Ruling
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Case Number: 23PSCV00452 Hearing Date: November 8, 2023 Dept: O
Tentative Ruling
Plaintiff’s APPLICATION FOR DEFAULT
JUDGMENT is DENIED without prejudice.
Background
This case arises from a
failed partnership. Plaintiff IVAN CRUZ alleges the following against
EBELIN C. BARRANCOS, an individual; FRANCISCO BARRANCOS: On October 26, 2020,
Plaintiff and Defendants entered into a written partnership agreement in which
they would become partners in a business that provided portable toilets to
third party businesses. After months of work, Defendants ceased communications
with Plaintiff, and excluded him completely from the partnership’s business.
On February 14, 2023, Plaintiff filed suit for:
1.
RESCISSION 2. FRAUD—INTENTIONAL MISREPRESENTATION OF
FACT 3. NEGLIGENT MISREPRESENTATION 4. UNFAIR COMPETITION (Bus. & Prof.
Code §17200) 5. CONVERSION 6. COVENANT OF GOOD FAITH AND FAIR DEALING 7. BREACH
OF CONTRACT.
On June 21, 2023, default was entered against EBEL IN C. BARRANCOS.
On September 20, 2023, default was entered against FRANCISCO BARRANCOS.
On November 1, 2023, Plaintiff filed the instant application.
Legal Standard
Code of Civil Procedure
section 585 permits entry of a judgment after a Defendant has failed to timely
answer after being properly served. A party seeking judgment on the default by
the Court must file a Request for Court Judgment, and: (1) a brief summary of
the case; (2) declarations or other admissible evidence in support of
the judgment requested; (3) interest computations as necessary; (4) a
memorandum of costs and disbursements; (5) a proposed form of judgment; (6) a
dismissal of all parties against whom judgment is not sought; (7) a dismissal
of all parties against whom judgment is not sought or an application for
separate judgment under CCP § 579, supported by a showing of grounds for each
judgment; (8) exhibits as necessary; and (9) a request for attorneys’
fees if allowed by statute or by the agreement of the parties. (Cal. Rules
of Court, Rule 3.1800.)
Discussion
Plaintiff seeks default judgment against Defendants in the
amount of $89,000.00.
The application would be denied without prejudice for the
following reasons:
1.
The agreement between the parties is in Spanish and no
translation has been provided.
2.
Doe Defendants have not been dismissed.
3.
Plaintiff does not provide a provision in the agreement
that permits recovery of attorney fees.
4.
Most importantly, Plaintiff has not provided explanation
nor evidence of the damages. As to the $55,000.00 Plaintiff paid to the
partnership in the form of money, equipment, and a commercial vehicle, there is
no evidence of such (i.e., receipts). To the extent that Plaintiff paid for the
items amount to $39,350.00, an invoice is not sufficient evidence that
Plaintiff paid for those items. (Cruz Decl., Ex. B.)
Conclusion
All in all, as explained by
the court in Kim v. Westmoore
Partners, Inc. (2011) 201 Cal.App.4th 267, a trial court must “compare the properly pled damages for each
defaulting party with the evidence offered in the prove-up.” (Id. at pp.
272-286.) Based on the foregoing, as Plaintiff has not offered evidence of the
$89,000 in damages, the application is denied without prejudice.