Judge: Michael E. Whitaker, Case: 24SMCV03064, Date: 2025-01-16 Tentative Ruling

Case Number: 24SMCV03064    Hearing Date: January 16, 2025    Dept: 207

TENTATIVE RULING

This case arises from allegations of a commercial lease dispute.  Plaintiff Westwood Village Properties, LLC (“Plaintiff”) requests for default judgment against Defendants Primo’s Donuts, LLC; Ralph Primo; Ralph Primo Jr.; and Celia Primo (“Defendants”) in the amount of $465,616.95, which is composed of special damages as demanded in the Complaint in the amount of $450,616.95; costs in the amount of $435; and attorneys’ fees in the amount of $14,565.

A.    Damages

            Plaintiff’s Complaint alleges two causes of action for (1) breach of contract and (2) enforcement of guaranty.  Celia Primo was personally served with a copy of the summons and complaint on July 5, 2024.  Ralph Primo; Ralph Primo Jr.; and Primo’s Donuts were served by substitute service on July 11, 2024.  Default was entered against Defendants on August 27, 2024.  There are no Doe defendants. 

            Plaintiff’s Complaint seeks $450,616.95 in past due rent, operating expenses, late fees, interest, legal fees, and indemnification under the lease. (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 Seth Bell, which authenticates the lease and lease addendum attached as Exhibits 1 and 2 to the Complaint, which is signed by Ralph Primo, Jr. on behalf of Primo’s Donuts, LLC.  Incorporated in the lease is a guaranty signed by Ralph Primo and Celia Primo.

            The lease addendum provides for minimum monthly rent as follows:

10948 Weyburn Ave

Period                                                 Minimum Rent                       Monthly Minimum Rent

1/1/2021-12/31/2021                          $127,200.00                            $10,600.00

1/1/2022-12/31/2022                          $131,016.00                            $10,918.00

1/1/2023-12/31/2023                          $134,946.48                            $11,245.54

1/1/2024-12/31/2024                          $138,994.87                            $11,582.91

1/1/2025-12/31/2025                          $143,164.72                            $11,930.39

1006 Broxton Ave (the “Expanded Premises”)

Period                                                 Minimum Rent                       Monthly Minimum Rent

Months 1-12                                       $55,200.00                              $4,600.00

Months 13-24                                     $56,856.00                              $4,738.00

Months 25-36                                     $58,561.68                              $4,880.14

Months 37-48                                     $60,318.53                              $5,026.54

            Plaintiff was also obligated to pay Operating Costs for the Expanded Premises.

            The Bell declaration also authenticates the ledger of outstanding payments owed, attached to the Complaint as Exhibit 3.  The ledger outlines $196,127.75 in outstanding rent, late fees, and interest, as of March 31, 2024.

            In addition, the Bell declaration indicates that a December 2023 lawsuit was filed against Primo’s, requiring Plaintiff to pay $5,500 to resolve the claim arising out of Primo’s alleged violation of the Unruh Civil Rights Act, for which Plaintiff is entitled reimbursement, pursuant to Section 8.1 of the lease.

            Plaintiff seeks $465,616.95, yet Plaintiff has only substantiated $196,127.75 + $5,500 = $201,627.75. 

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

B.    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).)   Section 14.1 of the Lease provides:

Except as otherwise set forth 1n the Lease, in litigation or other legal proceeding between Landlord and Tenant, the cause for which arises out of or in relation to this Lease, the prevailing party shall be entitled to receive its actual costs, expenses and reasonable attorneys’ fees from the non-prevailing party as the same may be awarded by the court, including costs of appeal, which costs, expenses, and attorney’s fees shall not exceed fifteen thousand dollars ($15,000.00) in the aggregate, excepting that if either party files for bankruptcy protection, then there shall be no cap.

            Plaintiff requests exactly $15,000 in attorneys’ fees and costs combined.  Although Plaintiff is generally entitled to its reasonable attorneys’ fees, Plaintiff has not provided any evidentiary support indicating that it incurred $14,565 in attorneys’ fees. 

            As for costs, Plaintiff also requests its $435 filing fee.  (CIV-100.) Plaintiff’s request for costs may be granted if Plaintiff is to be considered the prevailing party in this action. (Code Civ. Proc., § 1032, subd. (a)(4).)

CONCLUSION

            Plaintiff’s request for default judgment is denied because Plaintiff has not sufficiently substantiated its request for damages or attorneys’ fees. 

            Accordingly, the Court continues the Order to Show Cause re Entry of Default Judgment to March 27, 2025 at 8:30 A.M. in Department 207.  The Court also orders Plaintiff to file an amended Request for Entry of Default Judgment in conformity with the Court’s ruling on or before March 7, 2025. 

DATED:  January 16, 2025                           ________________________________

                                                                        Michael E. Whitaker

                                                                        Judge of the Superior Court