Judge Jill Feeney, Case Number: 20STCV37967, Date: 2023-09-29 Tentative Ruling

Sanctions in the amount of $500 are imposed against Plaintiff’s Counsel of Record. Sanctions are payable to the clerk of the court within 30 days after the date of this order. Sanctions are imposed because the default judgment package was not filed five court days in advance of today’s hearing as ordered on November 29, 2023.

The Court is setting aside the defaults entered against Defendants Hector Velasco and Gbolabo Folayan as void for failure to serve these Defendants with a statement of damages prior to the entry of default.

This is an action for wrongful death, neglect in violation of Welfare & Institution Code, section 15610.57, negligence, negligent supervision, false imprisonment, fraud, elder abuse, wrongful foreclosure, violation of the homeowner bill of rights, and financial elder abuse arising from the death of Decedent Sumie Cordova. Plaintiffs allege that in September 2018, they discovered their mothers’ home had been foreclosed upon and that their mother, Decedent, had disappeared. Plaintiffs discovered that Decedent had a reverse mortgage with Bank of America and that she had been removed from her home against her will to live in a health care facility named New Haven at The Willows in Santa Clarita. Shortly after Plaintiffs visited Decedent, she was moved to a different facility, Holistic Care Hospice, without Plaintiffs’ consent, and passed away. Plaintiffs now seek default judgment against Hector Velasco and Gbolabo Folayan, the only two Defendants remaining in this action.

In personal injury and wrongful death cases, a plaintiff must serve a statement of damages setting forth the nature and amount of damages to be sought before default may be taken. (Code Civ. Proc., section 425.11.) The purpose of the statement of damages is to ensure that a defendant who declines to contest an action does not thereby subject himself to open ended liability. (Schwab v. Rondel Homes, Inc. (1991) 53 Cal.3d 428, 435 (quoting Greenup v. Rodman (1986) 42 Cal.3d 822, 826.) A statement of damages is the functional equivalent to an amendment to a complaint that increases the amount of damages sought. (Plotitsa v. Superior Court (1983) 140 Cal.App.3d 755, 759.)

Here, this is an action for wrongful death, as well as other tort causes of action. Therefore, a copy of the statement of damages served on Defendants must be filed before the Court may enter default judgment. The Court cannot enter default judgment until Plaintiffs file a copy of the statement of damages served on Defendants. Plaintiffs’ proof of service filed May 11, 2023 and October 19, 2022 do not show that a statement of damages was ever served on Defendants. If Plaintiffs failed to serve the statement on Defendants, then default was entered in error and is thus void for lack of notice.

Plaintiff Richard Cordova testifies that Defendant Velasco began withdrawing huge sums of money from Decedent’s bank account totaling over $20,000. (Cordova Decl., ¶4.) Defendants moved Decedent from her home against her will to New Haven at the Willows, a healthcare facility operated by Folayan. (Id., ¶5.) Decedent was deprived of proper care and visitors, causing her condition to quickly deteriorate. (Id.) Folayan maintained no records of the stay and received payments from Decedent’s bank account. (Id.) After Plaintiffs located Decedent, Defendants moved Decedent to a different facility without Plaintiffs’ consent. (Id., ¶¶6-7.)

The Second Amended Complaint states that Plaintiffs seek general and special damages. However, Plaintiffs fail to provide any calculation or reasoning justifying their request for $376,488 in damages.

With respect to the funds Velasco and Folayan took from Decedent’s bank account, Plaintiff provided Decedent’s bank records. However, Plaintiffs included records of every check and statement issued by Decedent’s bank from about 2013 to 2017, including many records that do not appear to reference transfers to either Defendant. The records are also not in chronological order. Plaintiffs must remove the irrelevant records, specify which transactions are at issue, and calculate the damages owed by each Defendant.

Damages for loss of financial support, love, companionship, comfort, affection, society, solace, or moral support are recoverable in wrongful death actions. (Corder v. Corder (2007) 41 C4th 644, 663, 61 CR3d 660, 674.) Cases involving recovery by adult children may require more proof of parental services, such as a promise to care for a grandchild or proof that the adult child resided with the Decedent. (Schwartz v. Premium Products Co. (1950) 98 CA2d 780, 221 P2d 334.)

Here, Richard Cordova is Decedent’s adult child, and it does not appear from the facts alleged in the Complaint that he received parental services at the time of Decedent’s death. Thus, his general damages must be limited to loss of financial support and loss of love, companionship, care, assistance, protection, affection, society, and moral support. Plaintiffs must provide evidence of loss of financial support, love, companionship, or other general damages such as testimony describing Cordova’s relationship with Decedent. The Court cannot determine what damages are reasonable without evidence supporting the demand for damages.

Plaintiffs’ SAC states they seek attorney’s fees pursuant to Welfare & Institutions Code, section 15657.5(a). The code section provides that where it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, the court shall award reasonable attorney’s fees and costs, among other remedies.

When a promissory note, contract, or statute provides for the recovery of reasonable attorneys’ fees, the schedule set forth in Local Rule of the Court, rule 3.214(a) typically applies to the amount of the new judgement unless otherwise determined by the court:

Here, Plaintiffs fail to explain how they arrived at $5,654.88 in attorney’s fees and fail to provide any evidence which would justify an award greater than that allowed under rule 3.214(a). The Court cannot determine what is a reasonable award of attorney’s fees without this information.