Judge: Michael E. Whitaker, Case: SC129270, Date: 2024-04-22 Tentative Ruling

Case Number: SC129270    Hearing Date: April 22, 2024    Dept: 207

TENTATIVE RULING

On August 8, 2023, Defendants and Cross-Complainants Emaar LA Properties, LLC and EJL Homes Realty & Construction, Inc. (“Cross-Complainants”) filed a first amended cross-complaint (“FACC”) against Plaintiffs and cross-defendants James Lee dba JCL Contractors (“Lee”) and JCL Contractors, Inc. (“JCL” or “Cross-Defendant”) stemming from a dispute over a construction contract.  Lee was dismissed on August 18, 2023.

Cross-Complainant now requests default judgment against Cross-Defendant JCL in the amount of $1,349,221.75, which is composed of general damages in the amount of $770,510.61; prejudgment interest in the amount of $486,374.40; costs in the amount of $22,395.68; and attorneys’ fees in the amount of $69,941.06.

            a.         Damages 

            The Cross-Complaint alleges five causes of action for (1) Breach of Written Contract; (2) Breach of Express Warranty; (3) Breach of Implied Warranies; (4) Negligence; and (5) Declaratory Relief. Cross-Defendant was served with a copy of the summons and complaint via substitute service on August 14, 2023. Default was entered against Cross-Defendant on September 26, 2023, and the Roe defendants were dismissed on March 27, 2024.

            However, the Cross-Complaint does not specify what damages are sought.  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 Cross-Complainant’s requested damages.

c.         Prejudgment Interest 

            Because Cross-Complainant has not demonstrated entitlement to the requested damages, the Court similarly cannot award prejudgment interest on the 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 14.1.9 of the contract provides:

UPON AN EVENT OF DEFAULT, […] TRADE CONTRACTOR SHALL BE LIABLE TO CONTRACTOR FOR ANY AND ALL LOSS, DAMAGE OR EXPENSE, DIRECTLY OR INDIRECTLY SUFFERED BY CONTRACTOR FROM SUCH EVENT OF DEFAULT, INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS' FEES INCURRED OR PAID BY CONTRACTOR.

(Exhibit 1.)    

            Cross-Complainants seek attorneys’ fees pursuant to Local Rule 3.214, which provides for cases valued over $100,000, reasonable attorneys’ fees are $2,890 plus 1% of the excess over $100,000.  Here, that amounts to $9,595.11, yet Cross-Complainants seek $69,941.06, due to a mathematical error in calculating 1% of $670,510.61, which is $6,705.11, not $67,051.06.  (See Lee Decl. ¶ 13.)  Therefore, the Court cannot award the requested attorneys’ fees.

            Plaintiff also requests $22,395.68 in costs composed of $2,193.25 in filing fees, $222.52 in process server fees, and $19,979.91 in unspecified “other” costs.  (CIV-100.)  Code of Civil Procedure section 1033.5 outlines the allowable and disallowable costs under section 1032.  Because Cross-Complainants have not specified what the $19,979.91 in “other” costs were, the Court cannot analyze whether the requested costs are proper.

CONCLUSION

            Cross-Complainants’ request for default judgment is denied.