Judge: Elaine Lu, Case: 25STCV05554, Date: 2025-05-23 Tentative Ruling

Case Number: 25STCV05554    Hearing Date: May 23, 2025    Dept: 9

ANTONIO
SANCHEZ vs SEVEN TWENTY EIGHT COMPANY, INC.

25STCV05554

ORDER

Plaintiff’s
Counsel has failed to file proof of service of the Operative Summons and
Complaint on all named defendants, including DE LOS ANGELES PANCAKES, INC.,
SEVEN THIRTY FIVE, CO., and NINE FORTY TWO COMPANY, INC.

By no later than July
23, 2025, Plaintiff’s Counsel must file either proof of service of the Operative
Summons and Complaint on DE LOS ANGELES PANCAKES, INC., SEVEN THIRTY FIVE, CO.,
and NINE FORTY TWO COMPANY, INC. or a declaration explaining the failure to
file proofs of service of the operative Summons and Complaint on DE LOS ANGELES
PANCAKES, INC., SEVEN THIRTY FIVE, CO., and NINE FORTY TWO COMPANY, INC.,
setting forth any and all efforts undertaken to attempt service of the operative
Summons and Complaint on DE LOS ANGELES PANCAKES, INC., SEVEN THIRTY FIVE, CO.,
and NINE FORTY TWO COMPANY, INC., and explaining why sanctions (including
monetary sanctions of at least $500) should not be imposed for failure to file
proof of service of the operative Summons and Complaint on all of the named defendants,
in compliance with California Rules of Court, Rule 3.720.

Failure to file
proof of service of the Operative Summons and Complaint on DE LOS ANGELES
PANCAKES, INC., SEVEN THIRTY FIVE, CO., and NINE FORTY TWO COMPANY, INC. by July
23, 2025 may result in the Court setting an OSC re sanctions.

Plaintiff has
filed proof of service of the Operative Summons and Complaint as to the
remainder of all named DEFENDANTS, but none have responded.  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.

By no later than July
23, 2025, Plaintiff’s Counsel must: (a) file either a request for entry
of default for all served DEFENDANTS who have not responded or a declaration
explaining the failure to seek and obtain their default, and explaining why
sanctions (including monetary sanctions of at least $1,000) should not be
imposed for failure to timely seek their 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 July 23, 2025 may result in the Court setting an OSC re
sanctions.

The operative
complaint currently does not include any claim for civil penalties pursuant to
Labor Code section 2699 (PAGA penalties). 
By no later than July 23, 2025, Plaintiff must file and serve a
status report as to: (a) whether Plaintiff intends to either file a separate
action for PAGA penalties or file an amended complaint in the instant action
adding a claim for PAGA penalties; and (b) if so, when Plaintiff intends to
file the claim for PAGA penalties (either as a complaint in a separate action
or by way of amendment to the complaint in this action).  A Non-Appearance Case Review Re Status Report
Re Potential Addition of PAGA Penalties is set for July 23, 2025 at 8:30
am, Department 9.

The previously
imposed stay on discovery remains in effect.

The Initial Status
Conference is continued to August 4, 2025 at 10:00 am.  If Defendant appears before then, the parties
are to file a Joint Initial Status Conference Report by no later than July
23, 2025 in compliance with the Court’s Initial Status Conference order.

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