Judge: Christian R. Gullon, Case: 23PSCV01097, Date: 2023-08-30 Tentative Ruling

Case Number: 23PSCV01097    Hearing Date: August 30, 2023    Dept: O

Tentative Ruling

PLAINTIFF'S APPLICATION FOR DEFAULT JUDGMENT is DENIED WITH prejudice because the evidence does not support the allegation(s).

Background

This is a contractual fraud case. Plaintiff HENRY FUNG alleges the following against Defendant Xiang Ping Li: In 2020, upon Defendant’s advice, Plaintiff invested in $234,000 in a company, New People, LLC, wherein Defendant promised he would manage the investment. But, in 2022, when Plaintiff began to investigate his investment, Plaintiff realized no such LLC existed.

On April 14, 2023, Plaintiff filed suit for:

1.     Breach of Contract

2.     Fraud and Deceit

On July 24, 2023, Plaintiff filed proof of service (POS) of summons indicating that Defendant was personally served on 6/30/23.

On August 9, 2023, Plaintiff filed the instant application for default judgment.

Legal Standard

California Code of Civil Procedure section 585 (“CCP”) 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) (emphasis added).

Discussion

Plaintiff seeks default judgment against Defendant in the amount of $234,000 for damages and $435 in court costs, for a total of $234,435.00.

In support of its default judgment application, Plaintiff submits transfer of funds. (See California Code Of Civil Proc. 585 Declaration Of Plaintiff, Henry Fung (“Declaration”), Ex. A, pp. 7-10 of 10 of PDF.) The evidence, however, does not support the damages.

While the total amount of funds may amount to the judgment sought,[1] the wire transfers are not authenticated (i.e., custodian of records of the banks are not provided). For that reason, the wire transfers are inadmissible evidence, meaning the application for default judgment would be denied without prejudice.

Even assuming arguendo that the wire transfers were authenticated, the wire transfers do not support the allegation that “Defendant, LI, instructed the Plaintiff to wire transfer directly to New People LLC . . .  Plaintiff, as a result, trusting the Defendant, LI, wired transferred AND sent bank drafts in the following amounts from his bank account to NEW PEOPLE LLC.” (Complaint ¶10) (emphasis added and capitalization in original).

According to the appellate court in Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, on a default judgment, the court “must [] compare the properly pled damages for each defaulting party with the evidence offered in the prove-up.” Put a different way, the allegations govern the evidence required. Here, effectively, Plaintiff is to provide evidence that Plaintiff himself wired $234,000 from Plaintiff’s own bank account to New People, LLC (not another entity). However, the wire transfers fail to substantiate the allegations.

As to the first check for $66,000 check dated 5/15/2020, it does not bear Plaintiff’s name as the sender; merely that the check is “Re: Henry Fung.” Regarding this same check, the check was sent to Voice of Guo Media, Inc, not New People, LLC.

The second deposit, also dated to 5/15/2020 but sent from a different bank, was also sent to Voice of Guo Media Inc, not New People, LLC.

The third deposit dated to 11/18/21 is sent from May Margaret Fung (not Plaintiff), though it bears Plaintiff’s signature. (This deposit was sent to New People, LLC.)

The fourth deposit dated to 2/10/22 was also sent from May Margaret Fung (not Plaintiff) but bears Plaintiff’s signature. (This deposit was sent to New People, LLC.) Additionally, as to this fourth deposit, it states that it was “requested by” Zoe Lin (and another illegible name). Presumably, the person who should be requesting the deposit is Defendant, not a Zoe Lin.

All in all, the evidence does not support the allegations in the complaint that Plaintiff (not somebody else) directly transferred funds to New People, LLC (not another group). Absent evidence that directly conforms to the allegations in the complaint, the complaint itself is not properly pled, meaning the application for default judgment would be denied with prejudice.

Conclusion

Based on the foregoing, the default judgment is denied with prejudice. Should Plaintiff seek default judgment against Defendant, it is to file and a serve an amended complaint.