Judge: Michael Shultz, Case: 22CMCV00210, Date: 2024-03-13 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: 22CMCV00210 Hearing Date: March 13, 2024 Dept: A
CMC:
Wednesday, March 13, 2024, at 8:30 a.m.
[TENTATIVE]
ORDER REQUIRING ADDITIONAL DOCUMENTARY EVIDENCE AND CONTINUING THE HEARING ON
PLAINTIFF’S REQUEST FOR COURT JUDGMENT
The complaint alleges a claim for breach of
a written lease agreement for commercial property for a term commencing
September 17, 2013, through December 31, 2023. On April 27, 2023, Plaintiff
delivered to Defendant a Notice of Belief of Abandonment which terminated the
lease on May 15, 2023. The complaint alleges past-due rent of $20,375.95 as of
the date of termination and rent from termination to the end of the lease term
totaling $31,176.88. The total alleged principal damages are $51,552.83.
As Defendant was served by publication, Plaintiff
is required to apply for court judgment, and the court “shall hear the evidence
offered by the plaintiff, and shall render judgment in the plaintiff's favor
for that relief, not exceeding the amount stated in the complaint, … as appears
by the evidence to be just." (Code
Civ. Proc., § 585 subd. (c).).
While a defaulting defendant confesses the material terms of
the complaint that are well pleaded, the plaintiff must submit evidence of
facts “concerning the damages alleged in the
complaint.” (Petty v. Manpower, Inc. (1979) 94 Cal.App.3d 794, 798; HSBC Bank Nevada, N.A. v. Aguilar (2012) 205 Cal.App.4th Supp. 6, 12.) Damages
not fixed by contract must be proved. (Petty v. Manpower, Inc. (1979) 94 Cal.App.3d 794, 798.) Evidence
concerning damages only is required, not liability as well pleaded allegations
are admitted by the defaulting defendant. (Carlsen
v. Koivumaki (2014) 227 Cal.App.4th 879, 899–900 [the only
evidentiary facts that have a place are those concerning the damages alleged in
the complaint [citations omitted]. The damages, of course, may only be awarded
for a well-pled cause of action, and to that end, the complaint must be
examined."].)
Plaintiff has adequately alleged a claim
for breach of contract asserting damages of $51,552.83. However, Plaintiff has
not submitted documentary evidence of damages. Michael Israelsky, Plaintiff’s
property manager, attests to the manner that lease documents, files, and
records are generated and created by him concerning each tenant. (Israelsky
Decl., ¶ 6-7.) Rent accruals and payment credits for each tenant are kept in
the tenant file and are automatically recorded on the first day of each month. (Id. ¶ 7.) He avers that it is possible to review the
documents and records of account for each tenant, however, he does not provide
those records relating to Defendant’s tenancy to support the claims for back
rent, rent due through the remaining lease term, or any other damage.
Accordingly, the court
continues the hearing to