Judge: H. Jay Ford, III, Case: 22STCV08379, Date: 2024-03-26 Tentative Ruling

Case Number: 22STCV08379    Hearing Date: March 26, 2024    Dept: O

JANE P. vs SOLEIL SERVICES, INC. D/B/A SPA SOLEIL MASSAGE, et al. Case No. 22STCV08379

SUBJECT: Order to Show Cause Re: Dismissal for Failure to Obtain Default and Default Judgment

Plaintiff’s request for the entry of a default judgment is DENIED, without prejudice.

Preliminarily, the register shows that a default has not yet been entered by the Clerk against Defendant Soleil Services, Inc. (See Clerk’s most recent rejection filed 2/28/2024). 

It appears the default entered against John Cohn on February 22, 2024 was based in the proof of the personal service of the summons and complaint on Mr. Cohn filed on April 18, 2022 (exhibit 2, declaration of David Gottlieb filled March 22, 2024) and the proof of substituted service of the statement of damages filed on November 17, 2022. (exhibit 4, Gottlieb decl.)

When a defendant has not yet appeared in the action, a Statement of Damages must be served on that person in the same manner as a summons.  (Code of Civil Procedure §425.11((d)(1) (“If a party has not appeared in the action, the statement shall be served in the same manner as a summons.”); See also, 6 Witkin, California Civil Procedure Before Trial, §194 Notice of Damages.  (6^th ed. 2023.), California Practice Guide Civil Procedure Before Trial §6:288 (The Rutter Group, 2023) (“[6:288] Special requirements upon default: The statement of damages requirement makes entry of default more complicated: If defendant does not respond to the summons and complaint, plaintiff must go back and re-serve defendant with the statement of damages before seeking entry of default—i.e., double service may be required.”

Proof of service of the summons and complaint should be completed and filed using the mandatory judicial council form  POS-010. (Rule 1.31 Cal Rules of Court.) In addition, prior to serving an individual through substituted service, personal service must be attempted and a declaration showing reasonable diligence to affect personal service has been attempted. (Code of Civil Procedure §415.20(b) (see Comments to §415.20.))   

The proof of personal service on John Cohn shows he was served with the summons and complaint, but not with a statement of damages. The proof of substituted service of the Statement of Damages on John Cohn filed November 17 2022  is not the mandatory judicial council form (POS-010) and is incomplete.  The POS is missing the mandatory language from Form POS-010 showing the completion of the summons to “Notice to Person Served” (¶6) and is missing the reference to an attach “declaration of diligence,”¶5b.(5).  In addition, no declaration of due diligence is attached to the POS.

Finally, regarding the request for a default judgment, there still is insufficient evidentiary foundation to support the request for attorney’s fees of $138,068.  Simply stating the hourly rates and the hours spent by multiple attorneys and paralegals from two separate firms without any description of the work performed is not sufficient to support such an extraordinary request for attorney’s fees.  Counsels’  declarations do not show any description of the work performed, or more importantly, do not give any explanation or justification of the need to have four very experienced attorneys (at hourly rates of $1000, $850, §700 and $450 respectively), and multiple paralegals as support staff, spend over 126 hours to prepare, file and serve (still not completed) a relatively simple complaint, and to request a default judgment on such an uncontested case.    

The hearing on the order to show cause Re:  dismissal for failure to obtain default and default judgment is continued to___________________________.