Judge: Michael E. Whitaker, Case: 22SMCV01685, Date: 2024-11-22 Tentative Ruling

Case Number: 22SMCV01685    Hearing Date: November 22, 2024    Dept: 207

TENTATIVE RULING

This breach of contract case arises from a dispute regarding the amount of back rent Defendants allegedly owe Plaintiff in connection with a residential property lease.

On September 26, 2022, Plaintiff SM 10000 Property LLC (“Plaintiff”) brought suit against tenant Defendants Nicolai Bergman (“Nicolai”), Amanda McDermott-Bergmann (“Amanda”), and Nicolai Bergmann KK (“Nicolai KK”) (together, “Defendants.”)  Amanda answered the complaint, but default was entered against Nicolai and Nicolai KK on August 10, 2023.

On July 18, 2024, the Court granted Plaintiff’s motion for summary judgment as to Amanda.  Plaintiff now seeks default judgment against Nicolai and Nicolai KK in the amount of $303,862.69, representing special damages in the amount of $255,003.28; prejudgment interest in the amount of $35,394.16; costs in the amount of $3,465.25 and attorneys’ fees in the amount of $10,000.

A.    Damages

            Plaintiff’s Complaint alleges a single cause of action for breach of contract.  Nicolai and Nicolai KK were personally served with a copy of the summons and complaint on July 8, 2023.  Default was entered against Nicolai and Nicolai KK on August 10, 2023.  The Doe defendants have not yet been dismissed. 

            As a threshold matter, the Court cannot enter the default judgment as requested while the Doe defendants remain in the litigation.

            Further, Plaintiff’s Complaint seeks $200,000 in damages, but Plaintiff now seeks $255,003.28 in damages.  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 cannot award the requested $255,003.28 in damages.

B.    Prejudgment Interest

            Although Plaintiff has provided an itemization of the amount of prejudgment interest sought for each month from May 2022 through December 2023 (See Olsen Decl. ¶ 9) the principal balance upon which prejudgment interest is being calculated for each month is unclear.  To the extent Plaintiff seeks prejudgment interest on a principal damage balance that exceeds the requested $200,000, such prejudgment interest is improper. 

C.    Attorneys’ Fees and Costs

Code of Civil Procedure section 1033.5, which outlines recoverable costs to a prevailing party under Code of Civil Procedure section 1032, permits the recovery of attorneys’ fees when authorized by contract, statute, or law.  (Code Civ. Proc., § 1033.5, subd. (a)(10).)  Code of Civil Procedure section 1021 provides “[e]xcept as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties [….]”  Similarly, Civil Code section 1717 provides “[i]n any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.”  (Civ. Code, § 1717, subd. (a).)

The Code of Civil Procedure defines the “prevailing party” as follows:

[T]he party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. If any party recovers other than monetary relief and in situations other than as specified, the “prevailing party” shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.

(Code Civ. Proc., § 1032, subd. (a)(4).)

            Paragraph 34 of the lease agreement provides:

34. ATTORNEY'S FEES: In the event of any litigation to enforce this Lease, the prevailing party shall be entitled to recover its reasonable attorney's fees, not to exceed a total of ten thousand dollars ($10,000), and costs of litigation.

(Ex. 1 to Browne Decl.)

            Therefore, Plaintiff is entitled to the requested $10,000 in attorneys’ fees.

            Plaintiff also requests $3,465.25 in costs, but Plaintiff has not specified in paragraph 7 of form CIV-100 the breakdown for the requested costs.  Therefore, the Court cannot determine whether the requested costs are appropriate. 

CONCLUSION

            For the foregoing reasons, Plaintiff’s request for default judgment is denied. 

            Further, the Court orders Plaintiff to file an amended default judgment request in conformance with the Court’s ruling on or before December 31, 2024.  The Court also sets an Order to Show Cause re Entry of Default Judgment on January 31, 2025 at 8:30 A.M. in Department 207.  Counsel for Plaintiff shall appear in person at the Order to Show Cause hearing, unless the default judgment is entered in advance of the hearing. 

            The Clerk of the Court shall provide notice of the Court’s orders. 

DATED:  November 22, 2024                       ________________________________

                                                                        Michael E. Whitaker

                                                                        Judge of the Superior Court