Judge: Elaine Lu, Case: 25STCV01874, Date: 2025-05-02 Tentative Ruling

Case Number: 25STCV01874    Hearing Date: May 2, 2025    Dept: 9

Plaintiff has filed proof of service of the Operative Summons and Complaint as to certain defendants who have not responded, including BUONO’S AUTHENTIC PIZZERIA and FRANK BUONO. 

The time to respond for these defendants who have been served has already lapsed.

The Court reminds the parties that ultimately, the Court may not enter default judgment in an amount exceeding the amount demanded in the Complaint.  (CCP 585(b).)  The Court may not grant relief not demanded in the complaint by default judgment even though that relief otherwise would have been proper. (CCP § 580(a); Airs Aromatics, LLC v. CBL Data Recovery Technologies, Inc. (2018) 23 Cal.App.5th 1013, 1018 (default judgment for sum in excess of that demanded in complaint is void).  “It is fundamental to the concept of due process that a defendant be given notice of the existence of a lawsuit and notice of the specific relief which is sought in the complaint served upon him.” (Marriage of Lippel (1990) 51 Cal.3d 1160, 1166 [emphasis added].)  Thus, for example, where the complaint does not request attorney fees, the court cannot award fees against a defaulting defendant. It makes no difference that the fees are awardable by statute. (Feminist Women's Health Ctr. v. Blythe (1995) 32 Cal.App.4th 1641, 1675).  Accordingly, prior to seeking any Defendant’s default, Plaintiff may wish to review the operative Complaint for whether the operative Complaint gives notice of the amount of damages that Plaintiff seeks to recover; if the operative Complaint fails to do so, it may be futile for Plaintiff to seek entry of Defendant’s default without first amending the Complaint to clearly state and give notice of the amount of damages that Plaintiff is seeking to recover.  In the event that Plaintiff wishes to amend the Complaint for this purpose, the Court hereby lifts the stay to grant leave to amend the operative complaint.  If Defendant again fails to respond upon being served with the amended complaint, a request for entry of Defendant’s default on the Amended Complaint may then possibly lead to a request for entry of default judgment in an amount equal to or less than that stated in the Amended Complaint.

No later than June 17, 2025, Plaintiff’s Counsel must: (a) file either a request for entry of BUONO’S AUTHENTIC PIZZERIA and FRANK BUONO’s defaults or a declaration explaining the failure to seek and obtain BUONO’S AUTHENTIC PIZZERIA and FRANK BUONO’s defaults, setting forth any and all efforts undertaken to obtain BUONO’S AUTHENTIC PIZZERIA and FRANK BUONO’s defaults, and explaining why sanctions (including monetary sanctions of at least $1,000) should not be imposed for failure to timely seek BUONO’S AUTHENTIC PIZZERIA and FRANK BUONO’s default, in compliance with California Rules of Court, Rule 3.720, or (b) file an amended complaint that gives notice of the amount of damages that Plaintiff will be seeking to recover in the event of a default and default judgment, and file proof of service of the operative amended complaint and amended summons.  Failure to comply by June 17, 2025 may result in the Court setting an OSC re sanctions.

A non-appearance case review is set for June 24, 2025 at 8:30 am in Department 9 re entry of BUONO’S AUTHENTIC PIZZERIA and FRANK BUONO’s default.  The initial status conference is taken off calendar at this time and will be re-calendared upon Defendant’s filing of a notice of appearance or entry of Defendant’s default.

The previously imposed stay on discovery remains in effect.

The Court Clerk shall give notice of this order to Plaintiff.  Plaintiff is ordered to give notice of this minute order as well as the Initial Status Conference order to all other parties and file proof of service of such.