Judge: Melissa R. Mccormick, Case: Great American Insurance Company v. Bellamore Enterprise Corp., Date: 2022-10-06 Tentative Ruling

Plaintiff Great American Insurance Company’s Motion for Summary Judgment or, in the alternative, Summary Adjudication

Plaintiff Great American Insurance Company moves for summary judgment or, in the alternative, summary adjudication against defendant Alan Malouli.  Defendant did not file an opposition.  For the following reasons, plaintiff’s motion is denied.

A plaintiff seeking summary judgment meets its burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.  Cal. Civ. Proc. Code § 437c(p)(1).  Once the plaintiff has met that burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.  Id.

Plaintiff’s complaint alleges one cause of action for breach of contract.  Plaintiff alleges defendant breached a written indemnity agreement by failing to reimburse plaintiff for sums paid pursuant to a Dealer Surety Bond.  Neither the copy of the alleged indemnity agreement attached to the complaint (Complaint Ex. A) nor the copy attached to the Wise Declaration (Wise Decl. Ex. 1) is legible.  The court thus cannot conclude plaintiff has met its burden of showing that defendant has no defense to plaintiff’s cause of action by proving each element of the cause of action.  Plaintiff’s motion is denied.

The trial is scheduled for July 24, 2023 at 9:00 a.m. in Department C13.

Clerk to give notice. 

Plaintiff Great American Insurance Company’s Application for Entry of Default Judgment

Plaintiff Great American Insurance Company moves for entry of default judgment against defendants Bellamore Enterprise Corp. and Mindi Malouli.  For the following reasons, plaintiff’s application is denied.

A party seeking a default judgment must comply with all relevant code provisions and rules, including, without limitation, Civil Procedure Code § 585 et seq. and Rule of Court 3.1800.  With exceptions that do not appear applicable here, the relief granted to a plaintiff in a default judgment “cannot exceed that demanded in the complaint . . . .”  Civ. Proc. Code § 580(a); see also Kim v. Westmoore Partners, Inc. (2012) 201 Cal.App.4th 267, 286 (in all cases other than those for personal injury and wrongful death, “when recovering damages in a default judgment, the plaintiff is limited to the damages specified in the complaint”).  A default judgment against a particular defendant cannot be based on a complaint that fails to state a cause of action against that defendant.  Id. at 271-72, 282, 286; see also Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 539 (“Under the ‘well pleaded’ complaint rule, it is error to enter a default judgment on a complaint that fails to state a cause of action against the defaulting defendant.”).  The plaintiff in a default judgment proceeding must prove it is entitled to the damages claimed.  Kim, 201 Cal.App.4th at 288; see id. at 272 (“[I]t is incumbent upon the plaintiff to prove up his damages, with actual evidence.”). 

Plaintiff’s complaint alleges plaintiff and defendants entered into a written indemnity agreement on or about January 17, 2027.  Complaint BC-1.  The complaint alleges a copy of the agreement is attached to the complaint as Exhibit A.  Id.  Plaintiff alleges defendants breached the agreement by failing to reimburse plaintiff for sums paid pursuant to a Dealer Surety Bond. 

As an initial matter, plaintiff did not submit many of the documents required by California Rule of Court 3.1800(a).  In addition, the copy of the alleged indemnity agreement attached to the complaint (Complaint Ex. A) is not legible.  The court therefore cannot conclude plaintiff has stated a claim against defendants.  Finally, neither the application nor the Wise Declaration explains why plaintiff would be entitled to an award of prejudgment interest and, if it is, why any interest to be awarded would be calculated from September 6, 2019.

This denial is without prejudice to plaintiff submitting another application that addresses the issues in this ruling. 

Should plaintiff desire to file an amended complaint, see Rodriguez v. Nam Min Cho (2015) 236 Cal.App.4th 742, 755, plaintiff shall file and serve it by October 21, 2022.

The OSC re Dismissal is discharged.

The trial is scheduled for July 24, 2023 at 9:00 a.m. in Department C13.

Clerk to give notice.