Judge: Lynette Gridiron Winston, Case: 23PSCV02513, Date: 2024-10-29 Tentative Ruling
Case Number: 23PSCV02513 Hearing Date: October 29, 2024 Dept: 6
Plaintiffs
Daniel Tomes and Maureen Tomes’ Request for Entry of Default Judgment
Defendant: Esteban Ramirez
TENTATIVE RULING
Plaintiffs’ request for entry of default judgment is DENIED without prejudice.
BACKGROUND
This is a construction dispute. On August 17, 2023, plaintiffs Daniel Tomes and Maureen Tomes (collectively, Plaintiffs) filed this action against defendants Esteban Ramirez (Ramirez), Western Surety Company (Surety), and Does 1 through 30, alleging causes of action for breach of contract, rescission, negligence, disgorgement of funds aid, license bond, fraud, negligent misrepresentation, and common count. On August 13, 2024, Plaintiffs dismissed Surety from the complaint.
On September 29, 2023, Surety filed a cross-complaint for interpleader against Plaintiffs, Javier Ortiz, Ramirez Esteban dba S R Construction, and Does 1 through 50, alleging one cause of action for interpleader.
On October 7, 2024, default was entered against Ramirez. Plaintiffs also submitted a default judgment package.
LEGAL STANDARD
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) declaration of nonmilitary status; (6) a proposed form of judgment; (7) 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; (8) exhibits as necessary; and (9) a request for attorneys’ fees if allowed by statute or by the agreement of the parties. (Cal. Rules of Court, rule 3.1800.)
ANALYSIS
Plaintiffs seek default judgment against Ramirez in the total amount of $59,380.50, including $49,215.00 in damages, $8,244.00 in interest, and $1,921.50 in costs. The Court finds some issues with Plaintiffs’ default judgment package. First, Plaintiffs seek a return of all monies purportedly paid to Ramirez, but that is not the measure of damages for a breach of contract claim in connection with a construction project. The measure of damages for an owner against a contractor for breach of contract is normally the difference between the contract price and the price of finishing the work the contractor had agreed to perform. (Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co. (1977) 66 Cal.App.3d 101, 123; Amerson v. Christman (1968) 261 Cal.App.2d 811, 823.) If part of the contract price has been paid and the contractor has partially performed, the owner’s measure of damages is the difference between the cost of finishing the work and the unpaid portion of the contract price, i.e., the amount required to make the structure conform to the contract. (Higgins v. Grant (1931) 111 Cal.App.351, 355; Kitchel v. Acree (1963) 216 Cal.App.2d 119, 123.) Plaintiffs contend they paid $49,215.00 to Ramirez for a partially performed construction job before abandoning the project, but that does not account for the costs Plaintiffs purportedly incurred correcting or completing that job, which the complaint alleges to be $24,271.00. (Compl., ¶ 16.)
Second, the documents submitted in support of the damages claimed do not appear to add up to $49,215.00. Invoice Number 434 reflects a total payment of $10,680.00. (Tomes Decl., Ex. 1, p. 9 of pdf.) Invoice Number 435 reflects a total payment $30,388.00, but double counts the same check number 735 for $10,000.00 reflected on Invoice Number 434, so in reality the total payment on that invoice was $20,388.00. (Tomes Decl., Ex. 1, pp. 9 and 12 of pdf.) Invoice Number 445 reflects a total payment of $3,875.00, but it is not signed by either party like the prior invoices. (Tomes Decl., Ex. 1, pp. 14-15 of pdf.) As far as the Court can tell, Plaintiffs paid $31,068.00, or $34,943.00 if Invoice Number 445 is included. And, as noted above, Plaintiffs do not account for the costs purportedly incurred in correcting or completing Ramirez’s work.
Third, with respect to rescission, the Court does not rescind the contract; rather, the Court may afford relief to a party that has rescinded the contract or who has been affected by the rescission. (Marzec v. California Pub. Emps. Ret. Sys. (2015) 236 Cal.App.4th 889, 914.) Nothing in the complaint or default judgment package indicates that the contract was rescinded. While Plaintiffs may have presented a possible basis for rescission, that does not mean the contract has been rescinded or that the Court can rescind it. (See ibid.; Civ. Code, § 1692.)
Finally, the Court also notes that Plaintiffs prejudgment interest calculation is started from January 12, 2023, but the complaint and the supporting declaration indicate April 26, 2023, i.e., the date of Ramirez’s abandonment of the project, as the apparent date of the breach. (Compl., 15; Tomes Decl., ¶ 9.)
CONCLUSION