PROCEEDINGS: REQUEST FOR ENTRY OF DEFAULT JUDGMENT 

MOVING PARTY: Cross-Complainant Robert Cundall  

RESPONDING PARTY: Cross-Defendant Francesco Romano 

BACKGROUND 

This is a financial elder abuse case.  The original cross-complainant in this action was filed by Robert Cundall who is now deceased and is represented by the trustee of Cundall’s trust, Keith Anthony.   

Cross-Defendant Francesco Romano is alleged to have owed a fiduciary duty to Cundall as he held a power of attorney for Cundall.  Romano is further alleged to have breached his fiduciary duty by (1) failing to pay rent on a rental unit owned by Cundall for 15 months at a monthly rate of $2,800 for a total of $42,000 and (2) taking money from Cundall without authorization or consent in the amount of $62,860.  Romano is further alleged to have engaged in financial elder abuse based on the foregoing misappropriations.        

On August 28, 2019, Cross-Complainant filed a Cross-Complaint against Romano and Frances Diaz for (1) legal malpractice, (2) breach of fiduciary duty and (3) financial elder abuse.  Only the second and third causes of action are alleged against Romano.  The Cross-Complaint seeks damages in excess of $1.5 million.  All cross-claims against Diaz have now been settled and are not the subject of this default prove-up proceeding.    

Cross-Complainant filed a proof of service showing Romano was served by personal service on December 2, 2019.  Romano was obligated to respond within 30 days.  Romano did not do so.  Cross-Complainant successfully requested the entry of Romano’s default, which was entered by the Clerk’s Office on January 22, 2020.  Cross-Complainant then requested default judgment on July 9, 2023.  Cross-Complainant served the request for entry of default but there is no indication he served the request for default judgment on Romano.  Romano has not appeared. 

Cross-Complainant previously sought entry of default judgment which the Court denied because Cross-Complainant failed to state the statutory or contractual basis for his claim for attorneys’ fees or how the fees were calculated.  In addition, Cross-Complainant sought a doubling of his actual damages of $104,860 “per the Probate Code” but failed to cite to the Probate Code provision that allowed him to double his damages.  

RELIEF REQUESTED 

Default judgment against Romano for a total of $215,174.50, which is comprised of: (1) $209,720, for damages, (2) 3,800 for attorneys’ fees, and (2) $654.50, for costs.  

ANALYSIS 

Code of Civil Procedure section 585 sets forth the two options for obtaining a default judgment. First, where the plaintiff’s complaint¿seeks compensatory damages only, in a sum certain which is readily ascertainable from the allegations of the complaint or statement of damages, the clerk may enter the default judgment for that amount. However, if the relief requested in the complaint is more complicated, consisting of either nonmonetary relief, or monetary relief in amounts which require either an accounting, additional evidence, or the exercise of judgment to ascertain, the plaintiff must request entry of judgment by the court. In such cases, the plaintiff must affirmatively establish his entitlement to the specific judgment requested.¿ (Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 287.) Section 585 also allows for interest, costs and attorney fees, where otherwise allowed by law. (Code of Civ. Proc.  585(a).) 

Multiple specific documents are required, such as: (1) form CIV 100, (2) a brief summary of the case; (3) declarations or other admissible evidence in support of the judgment requested; (4) interest computations as necessary; (5) a memorandum of costs and disbursements; (6) a proposed form of judgment; (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.  (CRC Rule 3.1800.)  

Here, Cross-Complainant has properly complied with all the substantive and procedural requirements for a default judgment. Substantively, Cross-Complainant attests via declaration that there have been damages in the amount of $104,860 (Anthony Decl. ¶¶ 3-4), which is doubled to $209,720 because Romano engaged in financial elder abuse.  (See Cal. Prob. Code § 859.)  This amount is lower than the amount claimed in the Cross-Complaint of $1.5 million.  Cross-Complainant also seeks attorneys’ fees which is allowed under Cal. Prob. Code § 859, and the calculation of those fees is supported by a declaration.  (Leviton Decl. ¶ 2.)  Cross-Complainant also seeks costs of $654.50, which is supported by item 7 of the CIV 100 form.  Procedurally, Cross-Complainant properly served Cross-Defendant more than 30 days prior to requesting entry of default and default judgment, correctly completed JC Form CIV-100 in a manner that would not void or put at issue the entry of default, provided a declaration of non-military status, dismissed the fictitious cross-defendants, and filed a proposed judgment (JUD-100).  As default has already been entered and there has been no appearance or filing whatsoever from Cross-Defendant, default judgment is appropriate here.  

CONCLUSION AND ORDER  

For the foregoing reasons, Cross-Complainant Frances Diaz’s Request for Default Judgment is GRANTED as to Cross-Defendant Francesco Romano.