Judge: Michael Shultz, Case: 23CMCV01157, Date: 2024-08-13 Tentative Ruling
Case Number: 23CMCV01157 Hearing Date: August 13, 2024 Dept: A
Tuesday, August 13, 2024
[TENTATIVE] ORDER CONTINUING THE
HEARING ON PLAINTIFFS’ REQUEST FOR COURT JUDGMENT AGAINST DEFENDANT, MARK
HICKMAN
The
first amended complaint alleges that Plaintiffs suffered injury arising from a
car accident allegedly caused by Defendants that resulted in the wrongful death
of their decedent, Megan Goldorazena. Defendant, Felipe Gonzalez, Jr. answered
the complaint on June 7, 2024. The clerk entered default against Defendant,
Mark Hickman, on June 17, 2024.
Plaintiffs
allege that both Defendants were jointly liable for Plaintiffs’ injuries. Plaintiffs
must submit a dismissal
of all parties against whom judgment is not sought or an application for
separate judgment against specified parties under Code of Civil Procedure
section 579, supported by a showing of grounds for each judgment. (Cal
Rules of Court 3.1800
(7).) Plaintiffs have not explained why a
separate judgment is appropriate in this case.
Plaintiffs
state that they were not able to personally serve Hickman with the amended Statement
of Damages. Plaintiffs served the Statement of Damages by mail. (Plaintiffs’
Ex. D, E.) Where a party has not appeared in an action, the Statement of
Damages must be served in the same manner as a summons before default may be
taken. (Code Civ. Proc., § 425.11 subpart (c), (d).) Therefore, the
court cannot issue a judgment of default against Defendant Hickman for improper
service of the Statement of Damages.
Assuming
Plaintiffs can properly serve Defendant Hickman with the Statement of Damages, Defendant is entitled to the same period of
time within which to respond to the Statement of Damages as would have been
allowed to respond to an amended complaint. (Plotitsa v. Superior Court (1983) 140 Cal.App.3d 755, 761.) Section 425.11 “was designed to
give defendants ‘one last clear chance’ to respond to allegations of complaints
by providing them with ‘actual’ notice of their exact potential
liability." (Connelly v. Castillo (1987) 190 Cal.App.3d 1583, 1588. [Declined to follow Plotitsa’s
30-day rule but required that defendant be given “reasonable” time to respond
to the Statement of Damages before default may be taken.].)
While
a defaulting defendant confesses the material allegations of the complaint, the
court is required to hear the evidence supporting the amount of damage sought.
(Johnson v. Stanhiser (1999) 72 Cal.App.4th 357.) Plaintiffs submit the declaration
of their Guardian ad Litem, Decedent’s fiancé, stating conclusory allegations
of damages. (Decl of Larry Lucas.) Plaintiffs in a wrongful death action are
entitled to recover damages for their own “pecuniary loss, which may include
(1) the loss of the decedent's financial support, services, training and
advice, and (2) the pecuniary value of the decedent's society and
companionship—but he may not recover for such things as the grief or
sorrow attendant upon the death of a loved one, or for his sad emotions, or for
the sentimental value of the loss. " (Nelson v. County of Los Angeles (2003) 113 Cal.App.4th 783, 793.) Accordingly, “ ‘the court or jury
must compute damages, if any, by considering the pecuniary damage suffered by
all the heirs and return a verdict for one sum.’" (King v. Pacific Gas & Electric Co. (2022) 82 Cal.App.5th 440, 450.) Plaintiffs have not provided any
evidence relevant to a determination of the pecuniary value of loss sustained. Plaintiffs
do not explain how they arrived at a principal damage of $710,000. Nor is there
evidence of funeral expenses incurred. (Lucas Decl., ¶ 8.)
Plaintiffs
request for attorney’s fees of $12,465.25 can only be awarded if permitted by
contract, statute, or law. (Code Civ. Proc., § 1033.5 (a) (10.) Plaintiffs have not
identified a basis for an attorney’s fees award.
Plaintiffs’
request for “other” costs of $1,337.50 is not substantiated. Permissible costs
as a prevailing party must be reasonably incurred, reasonably necessary, and
reasonable in amount. Plaintiffs have not demonstrated that costs identified as
“other” are permitted. (Code Civ. Proc., § 1033.5 subd. (c).)
Plaintiffs
allege that Defendant Hickman was the owner of the vehicle operated by Defendant
Gonzalez. Plaintiffs have not explained why the statutory limits of owner
liability do not apply. (Veh. Code, § 17151 ["($15,000) for the death of or
injury to one person in any one accident and, subject to the limit as to one
person, is limited to the amount of thirty thousand dollars ($30,000) for the
death of or injury to more than one person in any one accident and is limited
to the amount of five thousand dollars ($5,000) for damage to property of
others in any one accident.”].)
Based
on the foregoing, the court continues the hearing to