Judge: Joseph Lipner, Case: 23STCV27189, Date: 2024-03-25 Tentative Ruling

Case Number: 23STCV27189    Hearing Date: March 25, 2024    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Plaintiff Nussbaum APC (“Plaintiff”) seeks default judgment against Defendant 1540 Bedford, LLC (“Defendant”).

Plaintiff requests:

(1) money judgment in the amount of $37,514.20, consisting of:

(a) damages in the amount of $35,498.31;

(b) special damages in the amount of $777.69;

(c) interest in the amount of $6,293.80;

(d) costs in the amount of $642.50;

The Court CONTINUES Plaintiff’s request for default judgment so that Plaintiff may correct its requested damages.

Background

This is an action for the recovery of attorney’s fees.

Plaintiff is a law firm. On July 15, 2021, Defendant executed a written retainer agreement (the “Agreement”) pursuant to which Defendant retained Plaintiff to represent Defendant in an unlawful detainer action. Defendant agreed to pay Plaintiff for attorney’s fees and costs upon receipt of invoice for services rendered and costs expended on Defendant’s behalf. Under the Agreement, Defendant agreed to pay interest at the rate of 10 percent per annum on any unpaid attorney’s fees and costs not paid within 30 days of the issuance of the invoice.

Plaintiff rendered legal services to Defendant from July 2021 through June 2022 and incurred costs.

In June 2022, Defendant failed to make payments then due and has thereafter failed to pay attorney’s fees due under the Agreement.

Plaintiff filed this case on November 6, 2023, raising claims for (1) breach of contract; (2) account stated; (3) services rendered; and (4) quantum meruit.

Legal Standard

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.

Discussion

Service of the Complaint and Summons

            According to the proof of service filed on January 8, 2024, Defendant was served on December 5, 2023 at 330 N Brand Blvd, Ste 700, Glendale, CA 91203, by personal service on Daisy Montenegro, Defendant’s authorized agent for service of process.

Dismissal of Other Parties

The Doe defendants were dismissed from the action on January 18, 2024, pursuant to Plaintiff’s request.

Non-Military Status

Lane Nussbaum avers to Defendant’s non-military status.

Summary of the Case

Plaintiff provides a brief summary of the case in the Declaration of Lane Nussbaum. Plaintiff adequately pleads its causes of action in the Complaint.

Evidence of Damages

“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.)

The Complaint requests $35,498.31 in damages.

Lane Nussbaum avers that Plaintiff owes a principal amount of $36,276.00. (Decl. Nussbaum, Calculation of Damages, Fees, and Costs.) This amount appears to include $777.69 in “special damages” requested in Plaintiff’s CIV-100 form. It is unclear from where these special damages are derived. Further, “when 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.) Thus, these additional damages appear improper.

Interest

The Complaint requests prejudgment interest. The Agreement provides for interest in the amount of 10 percent per annum, which begins to accrue 30 days after each invoice is received.

Lane Nussbaum avers that $695.70 in interest accrued since the filing of this case. Decl. Nussbaum, Calculation of Damages, Fees, and Costs.

The Court requests clarification on whether any of the interest is accrued based on the special damages Plaintiff seeks. The Court additionally seeks clarification on whether Plaintiff seeks pre-suit interest.

Memorandum of Costs and Disbursements

Plaintiff includes a memorandum of costs in the submitted Form CIV-100, averring that it expended $642.50 in costs.

Attorney’s Fees

            Plaintiff does not request attorney’s fees.

Proposed Form of Judgment

            Plaintiff has submitted a proposed form of judgment consistent with the foregoing.

Submission of the Written Agreement

            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. 

Statement of Damages

Plaintiff does not need to submit a statement of damages because this is not a personal injury or wrongful death case.