Judge: Joseph Lipner, Case: 21STCV32487, Date: 2024-06-03 Tentative Ruling
Case Number: 21STCV32487 Hearing Date: June 3, 2024 Dept: 72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE
RULING
|
EVERCOS OF AMERICA, INC., Plaintiff, v. NIX GLOBAL, INC., et al., Defendants. |
Case No:
21STCV32487 Hearing Date: June 3, 2024 Calendar Number: 1 |
Plaintiff Evercos of America, Inc. (“Plaintiff”) seeks
default judgment against Defendants Nix Global, Inc. (“Nix”) and Cathy Cho
(named in the request for default judgment as ‘Kathy Cho’) (collectively,
“Defendants”).
Plaintiff requests:
(1) money judgment in the amount of $150,705.75, consisting
of:
(a) damages in the amount of $100,000.00;
(b) interest in the amount of $50,000.00;
an
(c) costs in the amount of $705.75.
The Court DENIES Plaintiff’s request for default judgment as
the present papers have certain problems.
The Court will set a new date for this OSC to allow Plaintiff to file
additional papers that resolve these issues.
The issues are as follows:
Plaintiff seeks default judgment against ‘Kathy Cho’, who is
not a named party. Plaintiff must either submit a new request for default
judgment as to Cathy Cho, or amend its Complaint to correct Cho’s name if Cho
was not properly named in this case as ‘Cathy Cho.’
Plaintiff must also provide a declaration as to the military
status of Defendants.
Plaintiff must further correct its interest computations.
Plaintiff requests the amount in interest actually incurred by its CEO, who
took out a loan to cover the deposit whose recovery Plaintiff seeks. Plaintiff
must provide calculations as to the statutory 10 percent interest rate, running
from the date of breach to the present. Plaintiff must provide evidence of the
date of breach as well in order to do this.
This is a contract case.
On July 8, 2020, Plaintiff entered a contract with
Defendants, whereby Defendants would deliver 100,000 pairs of nitrile gloves in
exchange for the sum of $890,000.00 from Plaintiff. The contract provided for
an initial deposit of $100,000.00, which Plaintiff paid. The rest of the money
was to be paid in installments as Defendants delivered each batch of gloves.
After Plaintiff paid the deposit, Defendant did not deliver
the first batch of gloves. Defendants did not respond to Plaintiff’s subsequent
demands for performance.
Tae Shin Park was the CEO of Plaintiff at the time that
Plaintiff entered the contract. Park borrowed $100,000.00 from a lender to pay
for the deposit. Park now owes $150,000.00 on the loan.
Plaintiff filed this action on September 1, 2021, raising claims
for (1) breach of contract; (2) unjust enrichment; (3) civil theft; (4) fraud;
and (5) constructive trust.
Default was entered against Nix on June 2, 2023. Default was
entered against Cho on December 11, 2023.
CCP § 585 permits entry of a judgment after a Defendant has
failed to timely answer after being properly served. A party seeking judgment on the default by
the Court must file a Form CIV-100 Request for Court Judgment, and:
(1) Proof of service of the complaint and summons;
(2) A dismissal of
all parties against whom judgment is not sought (including Doe defendants) or
an application for separate judgment under CCP § 579, supported by a showing of
grounds for each judgment (CRC 3.1800(a)(7));
(3) A declaration
of non-military status as to the defendant (typically included in Form CIV-100)
(CRC 3.1800(a)(5));
(4) A brief summary of the case (CRC 3.1800(a)(1));
(5) Admissible
evidence supporting a prima facie case for the damages or other relief
requested (Johnson v. Stanhiser (1999)
72 Cal.App.4th 357, 361-362);
(6) Interest computations as necessary (CRC 3.1800(a)(3));
(7) A memorandum of
costs and disbursements (typically included in Form CIV-100 (CRC 3.1800(a)(4));
(8) A request for
attorney’s fees if allowed by statute or by the agreement of the parties (CRC
3.1800(a)(9)), accompanied by a declaration stating that the fees were
calculated in accordance with the fee schedule as per Local Rule 3.214. Where a request for attorney fees is based on
a contractual provision the specific provision must be cited; (Local Rule
3.207); and
(9) A proposed form
of judgment (CRC 3.1800(a)(6));
(10) Where an
application for default judgment is based upon a written obligation to pay
money, the original written agreement should be submitted for cancellation (CRC
3.1806). A trial court may exercise its discretion to accept a copy where the
original document was lost or destroyed by ordering the clerk to cancel the
copy instead (Kahn v. Lasorda's Dugout, Inc. (2003) 109 Cal.App.4th
1118, 1124);
(11) Where the
plaintiff seeks damages for personal injury or wrongful death, they must serve
a statement of damages on the defendant in the same manner as a summons (Code
Civ. Proc. § 425.11, subd. (c), (d)).
(California Rules
of Court rule 3.1800.)
Pursuant to Code Civ. Proc., § 1033.5(a)(1), items are
allowable as costs under Section 1032 if they are “filing, motion, and jury
fees.”
A party who defaults only admits facts that are well-pleaded
in the complaint or cross-complaint. (Molen v. Friedman (1998) 64
Cal.App.4th 1149, 1153-1154.) Thus, the complaint must state a claim for the
requested relief.
As a preliminary matter, there is a problem with the name of
Defendant Cho in the request for default judgment. Cho is named as ‘Cathy Cho’
in the caption of the Complaint. The proof of service was filed as to ‘Cathy
Cho’ and default was entered against ‘Cathy Cho.’ However, Plaintiff seeks
judgment against ‘Kathy Cho’ – spelled differently – in its request for default
judgment. This difference matters, because the name on the judgment is the name
of the person against whom the judgment can be enforced. The Court further
notes that Cho is referred to as ‘Kathy Cho’ in the body of the Complaint,
which is different from her name in the caption.
Plaintiff must either submit a new request for default
judgment as to Cathy Cho, or amend its Complaint to correct Cho’s name if Cho
was not properly named in this case as ‘Cathy Cho.’
According
to the proof of service filed on June 2, 2023, Nix was served on February 19,
2023 via substituted service on Jane Doe, a person in charge of the office at
3030 Stevens Street, La Crescenta-Montrose, California 91214.
According
to the proof of service filed on December 6, 2023, Cho was served on January
22, 2023 via substituted service on Anne Doe, a co-occupant at 3030 Stevens
Street, La Crescenta-Montrose, California 91214.
Plaintiff does not include a declaration as to the military
status of Defendants.
Plaintiff provides a brief summary of the case in the
Declaration of Tae Shin Park. Plaintiff has adequately pleaded its causes of
action.
“Code of Civil Procedure section 580 prohibits the entry of
a default judgment in an amount in excess of that demanded in the complaint.” (Kim v. Westmoore Partners, Inc. (2011)
201 Cal.App.4th 267, 286.) Moreover, “a statement of damages cannot be relied
upon to establish a plaintiff's monetary damages, except in cases of personal
injury or wrongful death.” (Ibid.) “In all other cases, when recovering
damages in a default judgment, the plaintiff is limited to the damages
specified in the complaint.” (Ibid.) Moreover, a plaintiff must submit admissible
evidence supporting a prima facie case for the damages or other relief
requested (Johnson v. Stanhiser (1999)
72 Cal.App.4th 357, 361-362.)
Park declares that the deposit amounted to $100,000.00.
(Park Decl. ¶ 6, 13.) Plaintiff has provided adequate evidence of the amount of
damages.
The Complaint requests interest. (Complaint at p. 11:11.) The
amount of damages is certain because it is the $100,000.00 deposit provided for
in the contract.
Plaintiff seeks $50,000.00 in interest. Park declares that
$50,000.00 in interest has accrued on the loan he took out.
A party may generally recover interest dating back to the
injury, if damages can be made certain. (Civ. Code, § 3287, subd. (a).) In
contract cases, the interest rate is 10 percent, unless the contract legally
provides otherwise. (Civ. Code, § 3289.)
The contract in this case does not provide for an interest
rate. The interest rate is therefore 10 percent.
Plaintiff appears to have computed interest incorrectly.
Plaintiff bases its interest request on the amount of interest incurred by
Park. This amount is irrelevant, since Park is not a party. Furthermore,
Plaintiff does not actually state the interest rate or computations that led to
the requested amount of interest.
Plaintiff must provide interest computations for a 10
percent interest rate, running from the date of breach to the present. Because
Plaintiff has not provided the date of breach, Plaintiff must also provide
evidence as to the date of breach.
Plaintiff includes a memorandum of costs in the submitted
Form CIV-100. Paul S. Ahn avers that Plaintiff expended $707.75 in costs.
Plaintiff
does not request attorney’s fees.
Plaintiff
has submitted a proposed form of judgment.
California
Rule of Court 3.1806 states that “unless otherwise ordered” judgment upon a
written obligation to pay money requires a clerk’s note across the face of the
writing that there has been a judgment. Here, Plaintiff has not submitted the
original documents. The Court does not discern any practical need for such a
clerk’s note on the written obligation in the current case and therefore orders
that it need not be included. If this causes any issues for any party or
non-party they are authorized to bring the matter to the Court’s
attention.
Plaintiff does not need to submit a statement of damages
because this is not a personal injury or wrongful death case.