Judge Lynette Gridiron Winston, Case Number: 23PSCV00719, Date: 2024-01-08 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 23PSCV00719, Date: 2024-01-08 Tentative Ruling

Plaintiff’s request for entry of default judgment is DENIED without prejudice.

This is a breach of contract action. On March 10, 2023, plaintiff Xiuqin Wang (Plaintiff) filed this action against defendants Hao Gong (Gong), Zhiyong Fu (Fu), Zhuangzhuang Xu (Xu) (collectively, Defendants) and Does 1 to 20, alleging causes of action for breach of contract, fraud, common count, conversion, constructive trust, restitution/unjust enrichment, and civil conspiracy.

Default was entered against Gong on May 18, 2023. Default was later entered against Fu and Xu on June 23, 2023. On October 18, 2023, Plaintiff filed a request for entry of default judgment, which was denied without prejudice. On February 27, 2024, Plaintiff refiled a request for entry of default judgment.

Code of Civil Procedure section 585 permits entry of a default judgment after a party has failed to timely respond or appear. (Code Civ. Proc., § 585.) A party seeking judgment on the default by the court must file a Request for Court Judgment, and: (1) a brief summary of the case; (2) declarations or other admissible evidence in support of the judgment requested; (3) interest computations as necessary; (4) a memorandum of costs and disbursements; (5) a proposed form of judgment; (6) a dismissal of all parties against whom judgment is not sought or an application for separate judgment under Code of Civil Procedure section 579, supported by a showing of grounds for each judgment; (7) exhibits as necessary; and (8) a request for attorneys’ fees if allowed by statute or by the agreement of the parties. (Cal. Rules of Court, rule 3.1800.)

Plaintiff seeks default judgment against Defendants in the total amount of $244,378.35, including $225,050.00 in general damages, $18,497.26 in interest, $0.00 in attorney fees, and $831.09 in costs. The Court again finds multiple defects with Plaintiff’s request for entry of default judgment. First, Plaintiff did not submit a proposed judgment. (Cal. Rules of Court, rule 3.1800, subd. (a)(6).)

Second, Plaintiff still has not provided the original loan agreement or a declaration explaining why the original could not be produced. (Cal. Rules of Court, rule 3.1806; see Kahn v. Lasorda’s Dugout, Inc. (2003) 109 Cal.App.4th 1118, 1124.) Plaintiff also has not authenticated the copy of the contract attached to her declaration or its corresponding translation. (See Wang Decl., pp. 6-7; Evid. Code, § 1400.)

Third, Plaintiff did not properly complete paragraph 2 of the Request for Entry of Default Judgment (Form CIV-100). Plaintiff failed to fill in all the applicable columns and spaces. (Request for Entry of Default Judgment (2/27/24).) Moreover, “[a]ccording to proof” is insufficient for a principal damage claim in a request for entry of default judgment. (See Yu v. Liberty Surplus Ins. Corp. (2018) 30 Cal.App.5th 1024, 1027.) In the Complaint, Plaintiff alleges a balance due of $225,050. (Compl., ¶¶ 30, 38, 47.)[1]

Fourth, while the Court appreciates Plaintiff providing some information regarding the prejudgment interest sought, the Court still finds it is not clear how Plaintiff arrived at $18,497.56 as of October 12, 2023. Plaintiff does not provide the start date to determine the total number of days to multiply the per diem rate of $61.66. (Wang Decl., pp. 3-4; see Cal. Rules of Court, rule 3.1800, subd. (a)(3).)

Fifth, Plaintiff’s declaration again includes a copy of a demand letter based on Civil Code section 1719 for claims for dishonored checks. (Wang Decl., Ex. 1.) As explained before, Plaintiff did not allege a cause of action based on Civil Code section 1719. (See generally Compl.) Therefore, this evidence is outside the scope of this action, and the Court declines to consider it. The Court refers Plaintiff again to its prior decision rejecting this claim. (Order re Tentative Ruling (1/8/24).)

Finally, the Court notes that Plaintiff’s Request for Entry of Default Judgment appears to be the same form used previously, as evidenced by the October 13, 2023 dates of execution on both documents. (Request for Entry of Default Judgment (10/18/23); Request for Entry of Default Judgment (2/27/24).) The proofs of service for both documents also appear to be identical. It appears to the Court that Plaintiff typed over the prior form and just resubmitted it. Plaintiff also appears to have done the same thing by typing over certain parts of her prior declaration and then just resubmitting it. (Wang Decl. (10/18/23), pp. 3-4.; Wang Decl. (2/27/24), pp. 3-4.) Also, both declarations are dated October 16, 2023. The Court finds this to be deeply problematic.

Based on the foregoing, Plaintiff’s request for entry of default judgment is DENIED without prejudice.

[1] The Court also notes that Plaintiff failed to redact sensitive personal identification information and bank account information. (Wang Decl., pp. 6-7; Cal. Rules of Court, rule 1.201, subd. (a)(2).)