Judge: Joseph Lipner, Case: 23STCV04947, Date: 2024-02-07 Tentative Ruling
Case Number: 23STCV04947 Hearing Date: February 7, 2024 Dept: 72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE
RULING
|
JON FITZGERALD, Plaintiff, v. LIQUID MEDIA GROUP, et al., Defendants. |
Case No:
23STCV04947 Hearing Date: February 7, 2024 Calendar Number: 4 |
Plaintiff Jon Fitzgerald (“Plaintiff”) seeks default judgment
against Defendants Liquid Media Group (“LMG”) and iGems TV (“iGems”) (collectively,
“Defendants”).
Plaintiff requests:
(1) money judgment in the amount of $1,253,317.83,
consisting of:
(a) damages in the amount of $891,244.23;
(b) prejudgment interest in the
amount of $62,387.10;
(c) costs in the amount of $1,149.00;
(d) attorney’s fees in the amount
of $48,537.50;
(e) civil penalties in the amount
of $250,000.00.
The Court CONTINUES Plaintiff’s request for default judgment
so that Plaintiffs may submit a Form CIV-100, provide complete evidence for his
damages, provide complete evidence for his requested statutory penalty, provide
corrected interest computations, provide corrected attorney fee computations,
and dismiss all non-defaulting parties.
Plaintiff is a filmmaker who developed iGems, a movie
recommendation service.
Between June 2021 and December 2021, Plaintiff, iGems, and
LMG entered into a series of agreements whereby LMG would take ownership of
iGems. The agreements provided that Plaintiff would become the CEO of iGems, to
be paid a certain salary, along with equity in LMG and, if terminated, severance.
LMG was also obligated to provide funds in order for iGems
to develop a movie recommendation application. From October 2022 to December
2022, LMG failed to provide all of these funds. LMG ceased funding iGems in
October 2022 in violation of the merger agreements. As a result, iGems stopped
paying Plaintiff’s salary in October 2022.
On December 15, 2022, Plaintiff notified LMG that it was in
breach of the merger agreement for failure to fund iGems and failure to pay
Plaintiff’s wages. LMG did not respond. 30 days later, Plaintiff formally
terminated the employment agreement.
Plaintiff filed this action on March 6, 2023. The operative
complaint is now the First Amended Complaint (“FAC”), filed on May 19, 2023, which
raises claims for (1) breach of merger contract; (2) breach of employment
contract; (3) breach of the covenant of good faith and fair dealing; (4) fraud;
(5) negligent misrepresentation; (6) unjust enrichment; (7) promissory
estoppel; (8) misappropriation of likeness; and (9) failure to pay wages.
Default was entered against iGems on August 16, 2023.
Default was entered against LMG on August 21, 2023.
On November 8, 2023, Plaintiff filed a Form JUD-100 proposed
judgment, along with declarations in support of default judgment and a summary
of the case. Plaintiff did not submit a Form CIV-100 requesting default
judgment.
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 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.
California Rules of the Court, rule 3.1800, subd. (a)
requires that a party seeking default judgment submit the mandatory Form
CIV-100.
Although Plaintiff submitted multiple CIV-100 forms seeking
entry of default for Defendants, Plaintiff has not submitted a Form CIV-100
seeking entry of default judgment – a different, but necessary, use of
the form. Further, the older CIV-100 forms that Plaintiff has submitted do not
include necessary sections such as the memorandum of costs. Plaintiff must
submit a completed Form CIV-100 as to Defendants in order for the Court to
enter default judgment against Defendants.
Plaintiff
has filed a proof of service for each Defendant. LMG was served on June 13,
2023 by Nancy Banfield via substitute service. iGems was served on June 13,
2023 by Brandon Lee Ortiz via substitute service.
The Doe defendants have not been dismissed from this action
as required by CRC 3.1800(a)(7).
Eliot J. Siegel avers to the nonmilitary status of iGems and
LMG in the requests for entry of default filed on August 16, 2023 and August
21, 2023, respectively. However, Plaintiff must also file a Form CIV-100
containing this declaration.
Plaintiff provides a summary of the case.
“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.)
Plaintiff requests $891,244.23 in damages. This figure
consists of $493,150.68 in contracted severance; $280,500.00 for the value of
equity owed to Plaintiff; $17,500.00 for unpaid retainer; $50,000.00 for the
use of Plaintiff’s likeness; and $50,093.55 for lost wages. (Summary of the
Case at p. 14:20-28.)
Plaintiff avers that he was to be paid a salary of
$160,000.00 and a minimum retainer fee of $3,500.00. (Fitzgerald Decl. ¶ 38.) Plaintiff
does not provide the calculations for how he reached the lost wages owed.
Plaintiff avers that he was owed severance equal to his
monthly pay for “36 months minus the actual number of months worked prior to
the Termination date” and “nine (9) months plus one month for each year of
employment completed”. (Fitzgerald Decl. ¶ 40.) Plaintiff does not state the
period for which he was owed severance.
Plaintiff provides no evidence for the damages incurred from
the use of his likeness.
Plaintiff
provides no evidence as to the value of the shares that he is owed.
Thus,
there are significant problems with Plaintiff’s damages prove-up. Plaintiff
must provide evidence showing his final damages claimed.
Separately from Plaintiff’s formal damages, Plaintiff
requests $250,000.000 in statutory penalties for unpaid wages pursuant to Labor
Code, section 203, subd. (a). Under section 203(a), Plaintiff can obtain a
penalty equal to up to 30 days of his wages, accruing during the period of
nonpayment of wages. Plaintiff does not provide the calculation for how he
reached the requested penalty of $250,000.00.
Plaintiff requests prejudgment interests at the rate of 7%,
in the total amount of $62,387.10.
Plaintiff demands interest in the FAC. Because this action
is based on breach of an employment contract with a specified salary per year, some
of the damages can be made certain. However, Plaintiff also requests damages
for stock options that he was owed, misappropriation of Plaintiff’s likeness.
The value of such damages is inherently uncertain. Prejudgment interest is not
permissible for those sources of damages, because they could not be made
reasonably certain. (Civ. Code, § 3287, subd. (a).) Plaintiff must revise his
interest calculations to seek interest only for damages which could be made
certain from the date from which he seeks interest.
Further, Plaintiff does not appear to actually provide his
interest computations. Plaintiff must provide his interest computations. (CRC
3.1800(a)(3).)
Erum Siddiqui avers to the costs expended by Plaintiff.
(Siddiqui Decl. ¶ 18.) However, Plaintiff does not provide a memorandum of
costs in the Form CIV-100, which Plaintiff has not submitted.
Plaintiff
requests $48,537.50 in attorney’s fees.
Plaintiff claims $891,244.23 in damages.
Plaintiff claims attorney’s fees under various statutes. Because
the judgment is over $100,000, the maximum recovery of attorney’s fees is equal
to $2,890 plus 1% of the excess over $50,000. (Local Rule 3.214.) Thus, the
maximum amount of attorney’s fees is $10,802.00. Plaintiff’s request exceeds
this amount. Plaintiff must therefore correct his attorney fee calculations.
Plaintiff
has submitted a JUD-100 proposed form of judgment but must correct it in
accordance with the foregoing deficiencies.
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.