Judge: Michael P. Linfield, Case: 22STCV04535, Date: 2023-05-10 Tentative Ruling

Case Number: 22STCV04535    Hearing Date: May 10, 2023    Dept: 34

PLAINTIFF'S REQUEST FOR ENTRY OF DEFAULT JUDGMENT

I.           BACKGROUND

On February 4, 2022, Plaintiffs Pacific Attorney Group, PLC and Payam Mark Shayani filed their Complaint against Defendants Gawad Akbari, Nazdup, Inc., Sajad Akbari, and Ali Akbari on the following causes of action:

(1)       Breach of written contract;

(2)       Fraud and deceit based upon intentional misrepresentation;

(3)       Breach of the implied covenant of good faith and fair dealing; and

(4)       Unjust enrichment.

On August 23, 2022, Plaintiffs amended their Complaint by substituting Doe 1 with United Towing Modesto LLC.

On October 3, 2022, the Clerk’s Office entered default on Defendants Gawad Akbari and Ali Akbari.

On October 4, 2022, the Clerk’s Office entered default on Defendant Sajad Akbari.

        On November 15, 2022, the Clerk’s Office entered default on Defendant United Towing Modesto LLC.

        On March 13, 2023, the Court denied Plaintiffs Request for Default Judgment.

        On April 28, 2023, Plaintiffs filed:

(1)       CIV-100, Request for Court Judgment Against Ali Akbari;

(2)       CIV-100, Request for Court Judgment Against Gawad Akbari;

(3)       CIV-100, Request for Court Judgment Against Sajad Akbari;

(4)       CIV-100, Request for Court Judgment Against United Towing Modesto LLC;

(5)       CIV-110, Request for Dismissal;

(6)       JUD-100, Proposed Judgment;

(7)       Case Summary;

(8)       Declaration of Manuel Gonzalez;

(9)       Declaration of Payam Mark Shayani;

(10)    Declaration of Peter M. Lazarus; and

(11)    Memorandum of Points and Authorities.

On May 8, 2023, the Clerk’s Office dismissed with prejudice Does 2 through 25 from the Complaint.

II.        ANALYSIS

a.          Plaintiff’s Actions Prior to Filing its Default  Prove-Up Package

        This case was filed on February 4, 2022; since then, the litigation by Plaintiff’s counsel has been deficient.

        Prior to the first Case Management Conference on May 19, 2022, Plaintiff a Notice of Settlement.  However, at the CMC, Plaintiff’s counsel said there had been no signed settlement agreement, and they planned on serving defendants.

        Plaintiff failed to appear at the continued CMC on July 5, 2022.

        At the third CMC on August 5, 2022, Plaintiff’s counsel stated that there was a new counsel on the case, he did not know what a Notice of Settlement had been filed, and that a dismissal would be filed by August 1, 2022.

        Plaintiff did nothing prior to the continued CMC and/or OSC re Dismissal that was held on October 5, 2022.  The Court continued the hearing to October 22, 2022 and issued sanctions of $200 against Plaintiff’s counsel.  The Court stated that if there was no Entry of Default against Defendant prior to the next hearing, the court would dismiss the case.

        On December 12, 2022, the Court set an OSC re Entry of Default Judgement for March 13, 2023.  At that hearing, the Court stated:

“This case was filed over one year ago.  Case Management Conferences were held – and had to be continued – on:  May 19, 2022; July 5, 2022; August 5, 2022; October 5, 2022; October 26, 2022; and December 12, 2022. Plaintiff’s counsel continually failed to file timely Case Management Statements.  Plaintiff’s counsel request for Entry of Default was rejected at least four times:  on September 19, 2022; October 4, 2022; October 17, 2022; and October 19, 2022.  At the last hearing on December 12, 2022, the Court gave Plaintiff’s counsel three months to file its default judgment prove-up package.  Counsel has not filed any documents for today’s prove-up.

Plaintiff Pacific Attorney Group is a law firm; Plaintiff Shayani is head counsel for the law firm. (See Complaint, ¶¶ 1-3.)  The Court expects Plaintiffs and their counsel to act more professionally.”  (See Minute Order of 3/13/2023.)

        The Court continued the OSC re Entry of Default Judgement until today’s date.  The Court also stated it “If default judgment is not entered by that date, the Court WILL dismiss the case.”  (Id.)

b.          Plaintiff’s Prove-Up Package is Deficient

As indicated above, Plaintiff filed its Prove-Up Package on April 28, 2023. 

        However, Plaintiff’s CIV-100 Forms are not properly completed.  Plaintiff has failed to complete paragraph 8 on each CIV-100, the Declarations of Non-Military Status. (See, Request for Entry of Default and/or Court Judgment.)  As stated on the CIV-100 form, the Declaration of Non-Military Status is “required for a judgement.”  (CIV-100, ¶ 8.)   Further, Plaintiff has failed to provide the promissory notes or other written obligations to pay, or a declaration explaining the loss, destruction, or unavailability of the promissory notes or other written obligations to pay.  Thus, the Clerk cannot comply with California Rules of Court, Rule 3.1806.

        (Although the Court is dismissing the case for the reasons stated above, it is worth noting that Plaintiff has submitted no credible  evidence showing that it suffered $1,250,000.00 in damages that it requests.  The only “evidence” supporting these damages is the conclusory statement that “I suffered the loss of the present market value and/or replacement cost of those numbers in the amount of $1,250,000.00.”  [Shayani Declaration, ¶15.])

III.     CONCLUSION

The Court previously stated that “If default judgment is not entered by [today’s] date, the Court WILL dismiss the case.” 

Plaintiff’s Prove-Up Package is deficient, and hence the Court cannot enter default judgment.

The case is Dismissed with prejudice.