Judge: Joseph Lipner, Case: 23STCV12545, Date: 2025-04-07 Tentative Ruling
Case Number: 23STCV12545 Hearing Date: April 7, 2025 Dept: 72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE
RULING
|
TP I INVESTMENT, LLC, Plaintiff, v. FREEVOLT USA, INC., Defendant. |
Case No:
23STCV12545 Hearing Date: April 7, 2024 Calendar Number: 4 |
Plaintiff TP I Investment, LLC (“Plaintiff”) seeks default
judgment against Defendant Freevolt USA, Inc. (“Defendant”) on Plaintiff’s Second
Amended Complaint (“SAC”).
Plaintiff proposes a judgment of $345,963.99, consisting of:
(1)
damages in the amount of $288,803.82;
(2)
interest in the amount of $56,040.12; and
(3) costs of suit in the amount of $1,120.05.
The Court GRANTS Plaintiff’s request for dismissal and
dismisses Does 1 through 10 from this case.
The Court tentatively grants Plaintiff’s request for default
judgment in the amount of $345,963.99. The Court notes that the Phan
Declaration appears to state that Plaintiff seeks an additional $562,482.82 in
damages for a tax assessment, which is not sought in Plaintiff’s Form CIV-100
and does not appear to be legally supported. The Court is not prepared to grant
the amount of $562,482.82 in damages.
This
is a contract case. On April 26, 2021, Plaintiff and Defendant entered into a
written agreement (the “Agreement”) for Defendant to install a solar panel
system at Plaintiff’s property. The solar panel was still not operational as of
November 3, 2023.
The Agreement provided that if the solar panel system was
not operating by September 25, 2021, Defendant would pay Phuc Thien Phan, the
Managing Member of Plaintiff, a sum of $30,000.00. (Phan Decl. ¶ 4, Exh. 1 at
p. 1.) In addition, Defendant would pay Mr. Phan’s electric bill for the meter
connected to solar for each month that the system was not operational from
September 25, 2021 until the system is fully operational with permission to
operate from the Los Angeles Department of Water and Power (“LADWP”). (Phan
Decl. ¶ 4, Exh. A at p. 1.)
Defendant
has not made the foregoing payments.
Plaintiff
filed this action on June 6, 2023.
Default was entered against
Defendant on September 6, 2023. Plaintiff filed an application for default
judgment on November 15, 2023. On December 18, 2023, the Court continued the
hearing on default judgment because Phan, who is not a party, and not
Plaintiff, was the real party in interest.
On January 8, 2024, Plaintiff filed a Declaration of Phuc
Thien Phan indicating that Phan had assigned his rights to receive payments for
his electricity bill and to sue on the nonpayment thereof to Plaintiff.
However, Plaintiff had not amended the Complaint to allege the assignment. On
January 25, 2024, the Court denied the request for default judgment because
“one suing as an assignee must allege and prove the assignment to recover on
the assigned claim.” (Emerald Bay Community Assn. v. Golden Eagle Ins. Corp.
(2005) 130 Cal.App.4th 1078, 1091.)
Plaintiff filed the First Amended Complaint (“FAC”) on
January 30, 2024. Plaintiff served the FAC on March 13, 2024 and filed a proof
of service on April 29, 2024. Default was entered against Defendant on the FAC
on May 9, 2024.
On August 21, 2024, Plaintiff requested leave to file a
second amended complaint. The Court granted leave on August 29, 2024.
On September 10, 2024, Plaintiff filed the SAC. Plaintiff
filed a proof of service on January 29, 2025. Defendant was defaulted on
February 6, 2025.
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. “[W]hen recovering damages in a default judgment, the
plaintiff is limited to the damages specified in the complaint.” (Kim v.
Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 286.)
According
to the proof of service filed on January 29, 2025, Defendant was served with
the SAC and related summons on December 7, 2024 at 41885 Jones Dr., Palm
Desert, California 92211 via substitute service on its authorized agent,
Bartosz Makas.
On March 27, 2025, Plaintiff filed a request for the
dismissal of the Doe defendants in this action. The Court hereby grants the
request and dismisses Does 1 through 10 from this case.
Plaintiff has filed a form CIV-100 seeking default judgment.
Dana Seyler avers to Defendant’s non-military status.
Plaintiff provides a brief summary of the case in the
Declaration of Phuc Thien Phan. Plaintiff adequately pleads its causes of
action in the Complaint.
“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.)
Plaintiff seeks $288,803.82 in base damages in its Form
CIV-100.
As discussed above, the Agreement provided that if the solar
panel system was not operating by September 25, 2021, Defendant would pay Phuc
Thien Phan, the Managing Member of Plaintiff, a sum of $30,000.00. (Phan Decl.
¶ 4, Exh. 1 at p. 1.) In addition, Defendant would pay Mr. Phan’s electric bill
for the meter connected to solar for each month that the system was not
operational from September 25, 2021 until the system is fully operational with
permission to operate from the Los Angeles Department of Water and Power
(“LADWP”). (Phan Decl. ¶ 4, Exh. A at p. 1.) As of March 14, 2025, the solar
panel system was still not operation. (Phan Decl. ¶ 5.) Phan provides an
itemization of the accrued electric bills
Plaintiff submits an exhibit list of the electricity bills,
which Mr. Phan avers to be true and correct copies of the bills. (Exhibit List;
Phan Decl. 9.) Plaintiff has adequately shown its damages from the electricity
bills amounting to $288,803.82.
Confusingly, the Phan Declaration appears to state that
Plaintiff seeks an additional $562,482.82 in damages for a tax assessment which
Plaintiff is obligated to pay on its secured property tax bill. (Phan Decl. ¶¶
6, 12.) This amount is not sought in the Form CIV-100. Furthermore, there is no
explanation for the legal basis on which Plaintiff would be entitled to recover
this sum from Defendant. The Court is prepared to approve the amount of damages
requested on the Form CIV-100, but not for the additional $562,482.82 in
property tax payments.
The SAC requests interest. (SAC at p. 2.) The amount of
principal damages is certain because it is quantified by the electrical bills.
Dana Seyler provides the interest calculations for each of
the electrical bills at an annual rate of 10 percent. The Court approves
$56,0540.12 in interest.
Plaintiff includes a memorandum of costs. Dana Seyler avers
that Plaintiff expended $1,120.05 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.