Judge Lynette Gridiron Winston, Case Number: 23PSCV01487, Date: 2023-10-18 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 23PSCV01487, Date: 2023-10-18 Tentative Ruling

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

This is a collection action. On May 16, 2023, Plaintiff US Foods, Inc. (Plaintiff) filed this action against Defendants Don Fuegos Chicken LLC, Johnny Cornejo (collectively, Defendants), and Does 1 through 10, alleging causes of action for breach of contract, open book account, account stated, reasonable value, and breach of personal guarantee [sic]. On October 18, 2023, the Court denied without prejudice Plaintiff’s request for entry of default judgment against Defendants. On November 7, 2023, Plaintiff dismissed Defendant Johnny Cornejo.

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 again seeks default judgment against Defendants in the total amount of $43,966.42, including $35,176.64 in damages, $6,765.48 in interest, $1,455.30 in attorney fees, and $569.00 in costs. The Court notes Plaintiff has essentially resubmitted the same default judgment package as before without addressing any of the issues mentioned in the Court’s October 18, 2023 order denying the request for entry of default judgment. (Order Re: Tentative Ruling (10/18/23).) Plaintiff again requests prejudgment interest at the rate of 18%, which is generally not permitted under California law. (See Code Civ. Proc., § 3289, subd. (b); Cal. Const. Art XV, § 1.) Plaintiff still presents no evidence to show that Plaintiff is exempt from California’s usury restrictions, nor does Plaintiff present any information as to what the correct rate of prejudgment interest is under Delaware law, i.e., the law that governs the underlying contract. (Compl., Ex. A, p. 4, ¶ 5; see Airs Aromatics, LLC v. CBL Data Recovery Technologies, Inc. (2020) 50 Cal.App.5th 1009, 1014 [New York choice of law clause governed determination of prejudgment interest].)

Moreover, Plaintiff again cites no provision of the underlying contract that purportedly authorizes Plaintiff to recover attorney’s fees here. (Code Civ. Proc., § 1033.5, subd. (a)(10).) The only language regarding attorney’s fees the Court could find was in connection with the personal guaranty, but since Defendant Johnny Cornejo has been dismissed, that provision is no longer applicable. (Compl., Ex. A, p. 8.)[1] Accordingly, Plaintiff is not entitled to attorney’s fees. Even if Plaintiff was entitled to attorney’s fees, Plaintiff again requests the same amount of attorney’s fees as before, which still exceeds the $1,200.00 amount permitted under Civil Code section 1717.5, subdivision (b). (Civ. Code § 1717.5, subd. (b).)

Furthermore, since this involves an obligation to repay money, Plaintiff needs to provide either the original agreement or a copy with a declaration in lieu of the original. (Cal. Rules of Court, rule 3.1806; Kahn v. Lasorda's Dugout, Inc. (2003) 109 CA4th 1118, 1122.) Plaintiff still did not provide a declaration in lieu of the original explaining why Plaintiff is unable to provide the original to the Court.

[1] It would also be unclear how this would be calculated with respect to the underlying contract since it only mentions attorney’s fees in the context of enforcing the personal guaranty, not the underlying loan amount.