Judge: Michael E. Whitaker, Case: 23SMCV02615, Date: 2024-05-21 Tentative Ruling

Case Number: 23SMCV02615    Hearing Date: May 21, 2024    Dept: 207

RULING

Plaintiff Dawn Robertson (“Plaintiff”) requests for default judgment against Defendant Doub Hanshaw (“Defendant”) in the amount of $272,421.10, which is composed of special damages in the amount of $258,547.33; costs in the amount of $1,506.27; and attorneys’ fees in the amount of $12,367.50.

            a.         Damages 

            Plaintiff’s Complaint alleges four causes of action for (1) Fraud; (2) Negligent Misrepresentation; (3) Violation of Civil Code § 1102; and (4) Breach of Residential Purchase Agreement. Defendant was served with the summons via publication, effective September 4, 2023, in accordance with the Court’s July 31, 2023 Order for Publication. Default was entered against Defendant on October 10, 2023, and the Doe defendants were dismissed on February 21, 2024.

            Plaintiff’s Complaint seeks $233,000 in special damages. (See Compl.) Plaintiff now seeks special damages of $258,547.33.   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 Plaintiff’s requested damages.

            d.         Attorney 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 22 of the Residential Purchase Agreement provides:

22. ATTORNEY FEES AND COSTS: In any action, proceeding, or arbitration between Buyer and Seller arising out of this Agreement, the prevailing Buyer or Seller shall be entitled to reasonable attorney fees and costs from the non-prevailing Buyer or Seller, except as provided in paragraph 30A.

(Ex. 1 to Robertson Decl.)  Further, counsel declares to have incurred $10,167.50 in attorneys’ fees, as well as an estimated $2,200 additional fees to complete the default package.  (Robertson Decl. ¶ 30.)

Therefore, Plaintiff has substantiated the request for attorneys’ fees.

            Plaintiff also requests $1,506.27 in costs composed of $698.40 in filing fees, $422.50 in process server fees, and $385.37 in service by publication fees. (CIV-100.) Plaintiff’s request for costs is granted as Plaintiff is the prevailing party in this action. (Code Civ. Proc., § 1032, subd. (a)(4).)

CONCLUSION

            Because Plaintiff seeks damages in excess of those demanded in the Complaint, Plaintiff’s request for default judgment is denied without prejudice. 

            Further, the Order to Show Cause re Entry of Default Judgment is continued to July 29, 2024 at 8:30 A.M. in Department 207.  Plaintiff’s renewed Request for Default Judgment in conformance with the Court’s ruling shall be filed on or before July 8, 2024. 

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