Judge: Michael Shultz, Case: 22STCV17143, Date: 2025-08-11 Tentative Ruling
DEPARTMENT 40 - MICHAEL J. SHULTZ - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call.
Case Number: 22STCV17143 Hearing Date: August 11, 2025 Dept: 40
22STCV17143 Josefina Caampued v. Jeannie P. Capucao, et
al.
[TENTATIVE] ORDER CONTINUING THE
HEARING ON PLAINTIFF’S REQUEST FOR COURT JUDGMENT BY DEFAULT
The complaint alleges that Plaintiff
entered into an agreement with Amor Andres Capucao, Jr., (“Defendant”) now
deceased, wherein Defendant agreed to sell Plaintiff’s real property in the
Philippines for $160,000 with Plaintiff to receive proceeds of $120,000, with
$40,000 paid to Defendant for his services. Defendant sold the property but
failed to pay Plaintiff the balance of $68,000. Plaintiff alleges claims for breach
of contract, fraud, breach of fiduciary duty, conversion, and for money had and
received. Plaintiff sues Jeannie P. Capucao (“Jeannie”) individually and as
representative of the Defendant’s estate.
Plaintiff
filed an amendment to complaint substituting Nestor Capucao for Doe 1
(“Nestor”). Defendant Nestor, as Doe 1 allegedly converted the funds owed to
Plaintiff to his own benefit or assisted or conspired with other Defendants in
the conversion of Plaintiff’s funds. (Complaint, ¶ 32.)
The clerk
entered default against Nestor on October 23, 2024, and Plaintiff now seeks
judgment against Nestor only. Plaintiff dismissed Jeannie Capucao without
specifying whether Plaintiff dismissed Jeannie in her individual or
representative capacity or both. Plaintiff also did not submit a dismissal of
DOES 2-10 as required by Cal. Rules of Court, rule 3.1800.
Additionally,
there is no evidence to support the amount of damages sought. While a
defaulting defendant confesses the material terms of the complaint that are
well pleaded, Plaintiff must submit evidence of facts “concerning the damages
alleged in the complaint.” (Petty
v. Manpower, Inc. (1979) 94 Cal.App.3d 794, 798.
Damages not fixed by contract must be proved. (Kim
v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 272 [“…
it is incumbent upon the plaintiff to prove up his damages, with actual
evidence.”].)
Plaintiff
requests attorney fees of $5,000 without a declaration to support that amount. Attorney’s
fees are recoverable if a note, contract, or statute provides for its recovery.
(LOS
ANGELES SUPER CT Rule 3.214; Civ.
Code, § 1717.) Assuming there is support for the recovery
of attorney’s fees, the court will apply the schedule set forth in Local Rule
3.214 [for a principal judgment between $50,000.01 and $100,000, the fee award is
$1,890 plus 2 percent of the excess over $50,000.)
Based on the
foregoing, the court continues the hearing to