Judge: Michael Shultz, Case: 20CMCV00284, Date: 2024-02-29 Tentative Ruling
INSTRUCTIONS: If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must:
1. Contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling.
2. No later than 4:00 p.m. on the court day before the hearing, call the Courtroom (310-761-4302) advising that all parties will submit on the tentative ruling and waive hearing; and
3. Serve notice of the Court's ruling on all parties entitled to receive service.
If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on.
TENTATIVE RULINGS -- http://www.lacourt.org/tentativeRulingNet/u
Case Number: 20CMCV00284 Hearing Date: February 29, 2024 Dept: A
[TENTATIVE
ORDER] DENYING PLAINTIFF’S REQUEST FOR COURT JUDGMENT BY DEFAULT.
Plaintiff purchased a 2006 Chevrolet
Silverado from Defendant, Tony and Z Automotors (“Seller”),
for $18,008.49. The vehicle was unmerchantable and needed costly repairs.
Plaintiff alleges claims for violations of the Consumer Legal Remedies Act,
Business & Professions Code § 17200, and Song-Beverly Consumer Warranty Act
(“SBA”). The fourth cause of action is for a claim against the dealer bond
issued by Defendant, Washington International Insurance Company (“WIIC”).
While the clerk entered default against
WIIC on October 18, 2022, the Plaintiff and WIIC stipulated to set aside the
default because Plaintiff improperly joined WIIC by an Amendment to Complaint,
which the court rejected. (Stip. 4/14/23.) Plaintiff agreed to set aside the
default to permit Plaintiff to properly join WIIC by Doe Amendment. (Id.) The court’s
file does not reflect that Plaintiff filed a Doe amendment or dismissed WIIC.
The
Court has discretion to issue a separate judgment against one defendant,
leaving the action to proceed against the others “whenever a several judgment
is proper.” (Code Civ. Proc., § 579.) However, the application for a separate
judgment against a specified party under Code of Civil Procedure section 579
must be “supported by a showing of grounds for each judgment.” (Cal
Rules of Court 3.1800.) Plaintiff has not established that
a separate judgment against the Seller is proper.
A
judgment by default confesses the material facts alleged;
the defendant’s failure to answer admits all matters well pleaded in the
complaint.(Kim
v. Westmoore Partners, Inc. (2011) 201
Cal.App.4th 267, 281 ["the defendant's failure to
answer has the same effect as an express admission of the matters well
pleaded in the complaint.”].) Plaintiff seeks contract- based remedies for
rescission, reimbursement for Plaintiff’s trade-in vehicle, and cancellation of
the second sales contract, none of which are alleged in the complaint. (William
Romero Decl.) Additionally, counsel’s request for prejudgment interest is based
on a “fraudulent and deceitful” sale, which Plaintiff did not allege. (Pauliana
N. Lara decl.) The damage request must be based on the remedies permitted under
the CLRA, Bus. & Prof. Code, section 17200 for unfair business practices; and
violation of the Song-Beverly Consumer Warranty Act, which are the only claims
alleged against the Seller.
The complaint alleges principal damages of
$18,008.49 which reflects the purchase price of the vehicle and an additional
$300,000 identified in the proposed judgment as “general.” The Statement of
Damages personally served on the Seller seeks $100,000 in actual damages and
$300,000 in punitive damages. The proposed judgment cannot exceed the amount
specifically demanded; an excessive judgment is void. (Falahati v. Kondo, (2005) 127 Cal. App. 4th 823, 830.)
Moreover, Plaintiff did not allege a basis for punitive damages claim such as a
common-law action for fraud or other tort describing the malicious, oppressive,
or despicable acts supporting its recovery. (Civil Code § 3297.)
To the extent Plaintiff alleged fraudulent
and unfair practices under Business and Professions Code § 17200, a plaintiff is
generally limited to injunctive relief and restitution; “Plaintiffs may not
receive damages, much less treble damages, or attorney fees.” (Cel-Tech
Communications, Inc. v. Los Angeles Cellular Telephone Co.
(1999) 20 Cal.4th 163, 179.) Finally, Plaintiff must
articulate either a statutory or contractual basis for attorney’s fees.
Based on the foregoing, the request for a
separate judgment by default against Defendant, Tony and Z Auto Motors, is
DENIED. The court sets an Order to Show Cause Re: Dismissal or Default Judgment
against Washington International Insurance Company and Tony Z Auto Motors on
Plaintiff is ordered to correct the
defects identified above and submit a corrected Request for Court Judgment
against both Defendants or dismissal of WIIC no less than 10 court days before
the continued hearing date.