Judge: David S. Cunningham, Case: BC538570, Date: 2023-09-14 Tentative Ruling


Case Number: BC538570    Hearing Date: November 8, 2023    Dept: 11

BC538570 (Luparello)

 

Tentative Ruling Re: Supplemental Brief Re: Renewed Request for Default Judgment

 

Date:                           11/8/23

Time:                          1:45 pm

Moving Party:           Michael Luparello (“Plaintiff”)

Opposing Party:        None

Department:              11       

Judge:                         David S. Cunningham III

________________________________________________________________________

 

TENTATIVE RULING

Plaintiff’s renewed request for default judgment is denied.

 

The Court grants Plaintiff leave to amend the operative complaint to specify the damages amount.

 

Plaintiff’s request to reinstate terminating sanctions is denied.

 

BACKGROUND

 

VIP Tours of California, Inc. (“VIP”) is a sightseeing tour company in Southern California. 

 

Plaintiff used to work for VIP as a bus driver. 

 

On March 6, 2014, Plaintiff sued VIP and Marco Khorasani, asserting causes of action for violations of the Labor Code and Unfair Competition Law, negligent misrepresentation, and fraud.

 

On November 27, 2018, Judge Elihu Berle granted terminating sanctions against VIP and entered default. 

 

On February 4, 5, and 6, 2019, Judge Berle held a bench trial regarding Plaintiff’s fraud cause of action against Khorasani. 

 

On July 30, 2019, Judge Berle issued a final statement of decision, finding Khorasani liable for fraud. 

 

On August 16, 2019, Judge Berle entered judgment against Khorasani as to the fraud cause of action. 

 

On December 19, 2019, Plaintiff filed a request for default judgment against VIP, yet Judge Berle entered default judgment against VIP and Khorasani.

 

On June 5, 2023, this Court vacated the default judgment and denied Plaintiff’s motion to amend the default judgment to add Khorasani as a judgment debtor.

 

On July 12, 2023, Plaintiff filed a renewed request for default judgment against VIP and a renewed motion to amend the default judgment against Khorasani.

 

On September 14, 2023, the Court heard oral arguments, ordered Plaintiff to file a supplemental brief concerning the renewed request for default judgment, and found the renewed motion to amend the default judgment to be premature.

 

On September 28, 2023, Plaintiff filed his supplemental brief.

 

Now, the Court considers whether the supplemental brief supports granting or denying the renewed request for default judgment.

 

DISCUSSION

 

In his renewed request for default judgment, Plaintiff asks the Court to award more than $500,000 in damages against VIP.

 

The reason the Court ordered supplemental briefing is because Plaintiff failed to include the operative complaint in the renewed default-judgment package.  The Court could not see whether the complaint specifies the damages amount that Plaintiff seeks (it is not scanned on eCourt).

 

Plaintiff has attached the complaint to his supplemental brief.  It does not allege a specific damages amount.  (See Supp. Brief, Ex. 1, pp. 17-18.)

 

Nevertheless, Plaintiff contends the Court should enter default judgment and should award the requested damages amount because VIP has had notice of the amount for over three years given that Judge Berle specified the amount in the default judgment entered on December 19, 2019.  Plaintiff claims this purported notice satisfies VIP’s right to due process.  (See Supp. Brief, pp. 5-6.)

 

The Court disagrees.  Generally, “when recovering damages by a default judgment, [the] plaintiff is limited to the damages specified in the complaint.”  (Edmon & Karnow, Cal. Practice Guide: Civ. Procedure Before Trial (The Rutter Group June 2023 Update) ¶ 5:241.5, emphasis in original.)    “Relief not demanded in the complaint cannot be granted by default judgment even though that relief otherwise would have been proper.”  (Id. at ¶ 5:233 [citing Code of Civil Procedure section 580].)  Plaintiff fails to cite authority recognizing an exception to these rules under the facts presented here.

 

Indeed, the December 2019 default judgment appears to have been based on an error.  Plaintiff’s counsel utilized Judicial Council form CIV-100 to request default judgment.  In paragraph 2.a. of form CIV-100, counsel represents that the damages amount demanded in the operative complaint is $524,534.40 (see 12/19/19 Request for Court Judgment, ¶ 2.a.), which is the exact amount that Judge Berle ended up awarding.  (See 12/19/19 Default Judgment, ¶ 6.a.(1) [utilizing Judicial Council form JUD-100].)  To repeat, the complaint fails to specify a damages amount.  It does not contain a request for $524,534.40.  Bottom line, counsel’s representation to Judge Berle was incorrect.

 

The remedy available to Plaintiff is to amend the complaint to demand a specific damages amount.  But, as the Court warned at the last hearing, “[s]uch an amendment [would] vacate[] the underlying default and put[] the entire matter back at issue[.]”  (Edmon & Karnow, supra, at ¶ 5:257, emphasis in original.)

 

Plaintiff requests leave to amend.  (See Supp. Brief, pp. 8-9.)  Also, though, he asks the Court to reinstate terminating sanctions following the amendment, effectively saying the matter should not be put back at issue.  (See id. at pp. 9-10.)

 

The Court grants Plaintiff leave to amend.

 

The second part of Plaintiff’s request is denied.  Plaintiff’s cited case – Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495 – does not help him.  There, the Court of Appeal set aside a default judgment because the plaintiff failed to either demand a damages amount in the complaint or serve the defendant with a statement of damages.  The justices held that the plaintiff needed to amend the complaint and to serve the defendant.  Relevantly, terminating sanctions had been entered against the defendant earlier in the litigation.  The Court of Appeal hinted that, after service of the amended complaint, the defendant “should be allowed to litigate the case” instead of reimposing the terminating sanctions:

 

Assuming Gilbert timely files an answer to Van Sickle’s amended complaint, the question arises as to whether Gilbert must be allowed to litigate the action thereafter without any consequences for the conduct that led the trial court to impose the terminating sanction on him in the first place. That question is not before us in this appeal. It is a question to be answered by the trial court in the first instance, in the proper exercise of its broad discretion of discovery matters. However, we note that in Greenup v. Rodman [(1986) 42 Cal.3d 822,] 830, 231 Cal.Rptr. 220, 726 P.2d 1295, the California Supreme Court, faced with similar facts, suggested that a defendant in Gilbert’s position should be allowed to litigate the case and only if the defendant “thereafter continue[d] to disobey discovery orders” would the imposition of “a second default judgment as a sanction” be appropriate. Of course, even if reimposition of the terminating sanction is not appropriate, the trial court could substitute some lesser sanction in place of the terminating sanction.

 

(Van Sickle, supra, 196 Cal.App.4th at 1530, emphasis and underlined case name added.)  In light of Van Sickle, the Court declines to reinstate terminating sanctions against VIP.