Judge: Michael E. Whitaker, Case: 21SMCV01453, Date: 2024-12-16 Tentative Ruling

Case Number: 21SMCV01453    Hearing Date: December 16, 2024    Dept: 207

RULING

Plaintiff Nanette James (“Plaintiff”) requests for default judgment against Defendant Modern One Plastering (“Defendant”) in the amount of $449,700, which is composed entirely of special damages incurred to repair Plaintiff’s property. 

            This case arises from construction damages to Plaintiff’s residential home.  Plaintiff’s Complaint alleges eight causes of action for (1) negligence; (2) breach of implied warranty of reasonable workmanship; (3) breach of contract; (4) breach of express warranty; (5) strict products liability; (6) intentional misrepresentation; (7) fraudulent concealment; and (8) declaratory relief against Defendants Bahram Fata; BFF Construction, Inc.; Modern One Plastering; Wilmar Guevara-Alvarez; JB Marble Co; Jacques Barlava; and Does 1 through 100.  On April 3, 2023, Plaintiff filed an Amendment, naming Defendant Farhad Lajevardi in place of Doe 1.

            Defendants BFF Construction, Inc.; Bahram Fata; and Farhad Lajevardi (Doe 1); JB Marble Co.; and Jacques Barlava were dismissed, at Plaintiff’s request on April 10, 2024. 

            Default was entered against the remaining named Defendants Wilmar Guevara-Alvarez and Modern One Plastering on November 17, 2021. The Doe Defendants have not yet been dismissed.

            The Court cannot grant the request for default judgment while the Doe Defendants remain in the litigation.  Further, the Court cannot grant the request only as to Modern One Plastering without a separate request for default judgment or dismissal as to Wilmar Guevara-Alvarez.  (California Rules of Court, Rule 3.1800(a)(7).

            Further, Plaintiff’s Complaint does not specify an amount of damages.  (See Compl.)  However, the Court cannot award damages that are in excess of what is pled in the Complaint. (See Code Civ. Proc., § 580, subd. (a) [“The relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint”]; Levine v. Smith (2006) 145 Cal.App.4th 1131, 1136-1137 [“when recovering damages in a default judgment, the plaintiff is limited to the damages specified in the complaint”].) 

            Therefore, the Court denies without prejudice Plaintiff’s Request for Entry of Default Judgment.

            Further, the Court continues the Order to Show Cause re Entry of Default Judgment as to Defendants Wilmar Guevara-Alvarez and Modern One Plastering to April 2, 2025 at 8:30 A.M. in Department 207.  Plaintiff shall file an Amended Request for Entry of Default Judgment on or before March 5, 2025.  No appearance will be necessary if the judgment is entered beforehand.

DATED:  December 16, 2024                        ________________________________

                                                                        Michael E. Whitaker

                                                                        Judge of the Superior Court