Judge: Joseph Lipner, Case: 24STCV26528, Date: 2025-04-09 Tentative Ruling
Case Number: 24STCV26528 Hearing Date: April 9, 2025 Dept: 72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE
RULING
|
EBF HOLDINGS, LLC, Plaintiff, v. YIZHAK DAHAN, Defendant. |
Case No:
24STCV26528 Hearing Date: April 9, 2025 Calendar Number: 11 |
Plaintiff EBF HOLDINGS, LLC dba EVEREST BUSINESS FUNDING
(“Plaintiff”) seeks default judgment against Defendant YIZHAK DAHAN
(“Defendant”).
Plaintiff requests:
(1) money judgment in the amount of $62,145.56, consisting
of:
(a) damages in the amount of $59,513.89;
(b) costs in the amount of $551.40;
and
(c) attorney’s fees in the amount
of $2,080.27.
The Court GRANTS Plaintiff’s request for dismissal as to
Does 1-10 and as to the punitive damages claims.
The Court GRANTS Plaintiff’s request for default judgment.
This is a contract case. The following facts are taken from
the allegations of the Complaint.
Defendant was the owner of non-party 26 Builders, Inc. (“26
Builders”).
On July 2, 2024, Plaintiff entered into an agreement (the
“Agreement”) with 26 Builders. Defendant, in his capacity as owner, executed
the documents that formed the Agreement on behalf of 26 Builders. Under the
Agreement, Plaintiff paid 26 Builders a purchase price of $48,000.00 to
purchase future receipts of 26 Builders in the sum of $68,160.00. The Agreement
also included an authorization for Plaintiff obtain the agreed-upon 11 percent
of 26 Builders’ receipts by means of an automatic clearing house (“ACH”) debit
to 26 Builders’ bank account until the full amount purchased was remitted.
As part of the Agreement, Defendant made certain
representations in writing, including that 26 Builders was not insolvent and
had no intention to close business or cease operating and would use its best
efforts to maintain and grow its business. Plaintiff alleges that these
representations were false and induced Plaintiff to enter the Agreement.
As part of the Agreement, Defendant executed a Performance
Guaranty whereby Defendant guaranteed the performance of certain requirements
by 26 Builders, including the obligation not to revoke the ACH authorization.
The Guaranty provides that Plaintiff may recover from Defendant certain types
of losses, which include the right to collect the full uncollected amount of
purchased receipts.
On July 24, 2024, Plaintiff received a Stop Payment from the
bank when it attempted an ACH withdrawal. Since then, Plaintiff was not able to
debit the bank account and has not received any payments. The Agreement
provided that intentional interference by 26 Builders with Plaintiff’s right to
collect payments would be an event of default.
Plaintiff demanded the payment of the sums owed under the
Agreement, but Defendant and 26 Builders failed to pay the amounts due.
On August 16, 2024, 26 Builders filed a Certificate of
Dissolution, executed by Defendant, with the California Secretary of State to
dissolve 26 Builders. (Complaint, Ex. 2.) Under section 4 of the certificate,
Defendant stated under penalty of perjury that 26 Builders had not incurred any
known debts or liabilities.
Plaintiff filed this action on October 11, 2024, raising
claims for (1) breach of guaranty; (2) fraud; (3) negligent misrepresentation;
and (4) violation of UCL.
On February 28, 2025, default was entered against Defendant.
Code of Civil Procedure, section 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.
According
to the proof of service filed on January 29, 2025, Defendant was served on January
22, 2025 at 801 S. Olive St., Apt. 2312, Los Angeles, California 90014 via personal
service.
On March 14, 2025, Plaintiff filed a request for dismissal
as to the Doe defendants and as to all punitive damages claims. The Court
grants Plaintiff’s request for dismissal as to Does 1-10 and as to the punitive
damages claims.
Plaintiff has filed a form CIV-100 seeking default judgment.
Marshall F. Goldberg avers to Defendant’s non-military
status.
Plaintiff provides a brief summary of the case in the
Declaration of Michael J. Reppas II. 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.)
Michael J. Reppas II avers that the total balance owing
under the Agreement is $59,513.89. (Reppas Decl. ¶ 10.) Reppas attaches
Plaintiff’s records of the accounting history under the Agreement, including
all ACH remittances. (Reppas Decl. ¶ 11, Ex. 2.)
Plaintiff does not seek prejudgment interest.
Plaintiff includes a memorandum of costs in the submitted
Form CIV-100. Marshall F. Goldberg avers that Plaintiff expended $551.40 in
costs.
Plaintiff
requests $2,080.27 in attorney’s fees.
This is an action on a contract. Because the judgment is
between $50,000.01 and $100,000, the maximum recovery of attorney’s fees is
equal to $1,890 plus 2% of the excess over $50,000. (Local Rule 3.214.) The
excess over $50,000 here is $9,513.89. 2% of that amount is $190.27. Thus, the
maximum amount of attorney’s fees is $2,080.27. Plaintiff’s request is
therefore appropriate.
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.