Judge: Michael E. Whitaker, Case: 23SMCV04617, Date: 2024-10-28 Tentative Ruling

Case Number: 23SMCV04617    Hearing Date: October 28, 2024    Dept: 207

TENTATIVE RULING

Plaintiff KPRS Construction Services, Inc. (“Plaintiff”) requests for default judgment against Defendant Jefferson Park, LLC (“Defendant”) in the amount of $360,115.87, which is composed of special damages in the amount of $315,776.46; prejudgment interest in the amount of $37,132.16; costs in the amount of $1,382.25; and attorneys’ fees in the amount of $5,825.00.

ANALYSIS

A.    Damages

            Plaintiff’s Complaint alleges three causes of action for (1) breach of contract; (2) quantum meruit; and (3) declaratory relief, seeking damages in connection with unpaid preconstruction services performed on the 1111 Jefferson Boulevard project. 

            Defendant was personally served with a copy of the summons and complaint on January 04, 2023. The clerk rejected Plaintiff’s request for an entry of default, due to technical deficiencies in the request form.  Therefore, Default has not yet been entered against Defendant.  Further, the Doe Defendants have not yet been dismissed.  Because Default has not yet been entered against Defendant and because the Doe Defendants have not yet been dismissed, the Court cannot enter judgment as requested.  (See California Rules of Court, Rule 3.1800(a)(7).)     

            Plaintiff’s Complaint seeks $2,769,536 in special damages. (See Compl.) Therefore, Plaintiff does not seek 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”].) 

            In support of the request, Plaintiff has provided the Declaration of Thomas Zwistowski, which purports to authenticate the following exhibits:  

·       Exhibit A is a copy of the parties’ Preconstruction Agreement

·       Exhibit B is a copy of the First Limited Authorization, entitling Plaintiff to $830,424.16

·       Exhibit C is a copy of the Amendment to First Limited Authorization

·       Exhibit D is a copy of the Second Limited Authorization, entitling Plaintiff to $4,438,670.00

            However, no such exhibits were attached to the declaration or otherwise provided to the Court.  Without the exhibits, the Court cannot adequately analyze the request for default judgment.

            Further, the Zwistowski declaration indicates Plaintiff provided the work as agreed (Zwistowski Decl. ¶¶ 9, 13), that Defendant made payments to Plaintiff’s subcontractors, leaving an outstanding balance of $308,024.86.  (Id. at ¶¶ 10-12 and Ex. E)  However, without a copy of Defendant’s payment spreadsheet, the Court cannot adequately analyze Plaintiff’s request for damages.

            Zwistowski further declares that “The statutory penalties due and owing to KPRS at the rate of 2% per month under California’s Prompt Pay Act is $6,160.51 for penalties during the 12 months and 2 days” the balance has been outstanding.  (Zwistowski Decl. ¶ 16.)

            However, the $308,024.86 + $6,160.51 indicated in the Zwistowski declaration equals $314,185.37, which does not match the $315,776.46 requested.

            Therefore, Plaintiff has not demonstrated entitlement to the requested damages.

B.    Prejudgment Interest    

            The interest computation for the $30,971.65 requested is stated as follows:  

·       $308,024.86 x 10% annual contractual rate x 20 months and 21 days

            Assuming the missing exhibits corroborate the Zwistowski Declaration, $308,024.86 would be the appropriate outstanding principal balance owed upon which interest accrues.  However, it is unclear why Plaintiff is calculating interest for a “period of breach” constituting “20 months plus 21 days” (Zwistowski Decl. ¶ 15) when the Zwistowski Declaration indicates Defendant “has refused to pay and withheld payment in the amount of $308,024.86 for over 12 months and 2 days as of September 30, 2024” (Id. at ¶ 14) and Plaintiff calculated the Prompt Pay statute penalties for a period of 12 months and 2 days (Id. at ¶ 16.) 

            Further, Plaintiff’s exact calculations are unclear.  While the Court could distill down the 10% annual interest into a monthly interest amount (by dividing by 12) or a daily interest amount (by dividing by 365), the Court is unclear how Plaintiff calculated the interest owed for a period of “20 months and 21 days.” 

            Therefore, Plaintiff has not demonstrated entitlement to the requested prejudgment interest.

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).)

            Without a copy of the agreement, the Court cannot verify whether there is a contractual provision entitling Plaintiff reasonable attorneys’ fees incurred in the requested amount of $5,825.00.  (See Declaration of Adrienne B. Gallant at ¶ 3.) 

            Plaintiff also requests $1,382.25 in costs composed of $928 in filing fees and $254 in process server 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

            Plaintiff’s request for default judgment is denied.  The Court cannot enter default judgment until default is entered against Defendant and the Doe defendants are dismissed.  Moreover, Plaintiff has not provided the corroborating exhibits referenced in the Zwistowski Declaration, without which the Court cannot analyze Plaintiff’s request.  Further, the amount of damages requested do not match those indicated in the Zwistowski declaration.  With respect to prejudgment interest, Plaintiff has not explained why the requested interest was calculated over a period of 20 months and 21 days, or how exactly that calculation was made.  Further, without a copy of the agreement, the Court cannot discern whether Plaintiff is entitled to the requested attorneys’ fees. 

            The Order to Show Cause re Entry of Default Judgment is continued to February 4, 2025 at 8:30 A.M. in Department 207.  Further, Plaintiff shall file an amended Request for Entry of Default Judgment (Default Judgment package) in conformance with the Court’s ruling on or before January 10, 2025. 

DATED:  October 28, 2024                          ________________________________

                                                                        Michael E. Whitaker

                                                                        Judge of the Superior Court