Judge: Michael Shultz, Case: 22CMCV00212, Date: 2023-01-11 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.
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Case Number: 22CMCV00212 Hearing Date: January 11, 2023 Dept: A
CMC:
[TENTATIVE] GRANTING
PLAINTIFF’S REQUEST FOR COURT JUDGMENT (MODIFIED BY THE COURT)
The complaint, filed on July 7, 2022,
alleges that Plaintiff contracted with Defendants to draft plans and build an
accessory dwelling unit (ADU) on Plaintiff’s property. Plaintiff alleges he paid
a total of $21,799.75 for a deposit, professional fees, and the cost of
permits. Defendants did not commence work. Plaintiff later determined that
Defendants were unlicensed contractors. Plaintiff alleges claims for violation
of Business and Professions Code, section 7028 (failure to obtain license); unjust
enrichment, fraud, and for violation of Business and Professions Code, section
17200 (unlawful business practices). Plaintiff prays for an award of punitive
damages and treble damages under Code of Civil Procedure, section 1029.8.
The court entered default against Jose
Luis Franco on August 17, 2022, and against Franco Construction, Inc., on
November 14, 2022. Plaintiff filed a dismissal of Doe defendants on January 3,
2023. Plaintiff submits a declaration and documentation of the written contract
for construction of the ADU, the plans, and cancelled checks for partial payments
made as follows:
Building
plans $2,000.00
Engineer 1,800.00
Architect 1,000.00
Plans 2,000.00
Permit
Application 1,620.77
City of Los
Angeles Engineering Process Fee 129.00
Construction
Deposit 11,500.00
Total $20,049.77
Plaintiff’s alleged calculation of
$21,799.75 exceeds the documented amount of expenses paid as reflected by the
cancelled checks. Declaration of Daniel Flores, Exs. 2, 4-5, 8.
Plaintiff also requests lost
rental profits of $45,000 ($2,500) per month for 18 months. Flores Declaration,
¶ 25. This amount of damage is not alleged in the complaint and is beyond the
court’s jurisdiction to award. People ex
rel. Lockyer v. Brar (2005) 134 Cal.App.4th 659, 667
["Except in personal injury or wrongful death cases, courts must look to
the prayer of the complaint or to ‘allegations in the body of
the complaint of the damages sought’ to determine whether a defendant has been
informed of the ‘maximum liability’ he or she will face for choosing to default.”;
Falahati v.
Kondo, (2005) 127 Cal. App. 4th 823, 830. [“Our Supreme Court has held ‘a
default judgment greater than the amount specifically demanded is void as
beyond the court's jurisdiction.’”]. Additionally, the alleged damage is
unsupported by any declaration and evidence from a person qualified to render
an opinion on the rental value of the ADU once completed. As such, the damage
request is speculative and beyond the court’s jurisdiction.
Plaintiff requests an award for treble
damages, attorney’s fees, and costs as Defendants were unlicensed and caused
damage to Plaintiff. Complaint, ¶ 29; Code Civ.
Proc., § 1029.8. Plaintiff declares that when he asked Defendants
for licensing information, Defendants gave Plaintiff an active license in the
name of Gomez Construction, Inc., which is not associated with either
Defendant. Flores Declaration, ¶¶ 14-16, Exs. 9-10. Prior to entering into the
contract, Defendants represented they were licensed contractors. Flores
Declaration, ¶ 17. Accordingly, Plaintiff is entitled to treble damages
totaling $60,149.31 ($20,049.77 x 3).
Plaintiff is also entitled to
costs totaling $615.00 for filing fees and process server fees. Code Civ.
Proc., § 1029.8. Attorney’s fees may be awarded based on statute
which is calculated pursuant to Los Angeles Superior Court Rule 3.214. Total
damages are $80,199.08 (principal damages of $20,049.77 and treble damages of
$60,149.31). Therefore, fees are $1,890 plus two percent of the excess over
$50,000, in this case ($30,199.08 x 2% = $603.98+1890=$2,493.98).
Accordingly, the court enters
judgment as follows:
Principal
damages $20,049.77
Costs 615.00
Attorney’s
fees 2,493.98
Treble
damages (Code Civ. Proc., § 1029.8)
60,149.31
Total
83,308.06