Judge: Michael Shultz, Case: 24STCV20344, Date: 2025-05-20 Tentative Ruling
Case Number: 24STCV20344 Hearing Date: May 20, 2025 Dept: 40
24STCV20344
Market Lofts Community Association v. Roopinder S. Goraya
[TENTATIVE]
ORDER CONTINUING THE HEARING ON PLAINTIFF’S REQUEST FOR COURT JUDGMENT IN ORDER
TO FILE A SUPPLEMENTAL DECLARATION AND ADMISSIBLE EVIDENCE
The complaint alleges that Defendant
failed to comply the with the Covenants, Conditions & Restrictions
(“CC&R”) that required Defendant, as a real property owner, to pay delinquent
assessments which attached to the real property. Plaintiff, the governing body
of the common interest development, claims damage of $18,985.93 and alleges
claims for foreclosure of lien, breach of the CC&Rs, and common counts for
account stated as well as for attorney’s fees and costs.
The clerk entered default against
Defendant on December 17, 2024. All DOE defendants were dismissed on December
23, 2024.
Defendant’s failure to answer admits the
well-pleaded allegations of the complaint. (Carlsen
v. Koivumaki (2014) 227 Cal.App.4th 879, 883.)
To that end, the complaint must be examined. Carlsen
at 900.) 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. (Id.;
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.”].) The California Rules of Court require declarations or
other admissible evidence in support of the judgment requested. (Cal.
Rules of Court, Rule 3.1800 subd. (a)(2).)
Plaintiff submits the declaration of
Diane Kravif in support of the judgment. Ms. Kravif that she is a member of the
Board of Directors for Plaintiff. She submits an account itemization for
Defendant as of December 20, 2024. (Kravif decl., Ex. 3.) The document is not
authenticated. The declaration does not assert
foundational facts necessary to support a business records exception to the
hearsay rule. (Evid. Code, §1271, [requiring facts to establish that the
writing was made in the regular course of business, at or near the time of the
act, by a custodian or other qualified witness testifying to its identity and
mode of preparation and indicate its trustworthiness.].) Exhibits 3-5, 7-8,
which appear to be business records, are not admissible.
Additionally, Plaintiff does not explain
how the principal amount requested of $18,243.76 was calculated. Even if
admissible, Defendant’s account statements do not support the principal amount
sought by Plaintiff.
The Defendant’s transaction history
between April 1, 2023 through January 30, 2024 which Plaintiff recorded with
the County Recorder along with Plaintiff’s lien does not reflect a principal
balance due. The itemization as of December 20, 2024, shows a balance due of
$30,252.43. (Exhibit 3.) The transaction history as of August 29, 2023 does not
show a balance due. (Exhibit 5.) The lien on the property recorded by Plaintiff
on February 7, 2024, shows a recorded balance is $6,423.30. (Exhibit 6.) The
notice of decision to foreclose dated July 17, 2024, asserts that the delinquent
assessments total $16,107.34. (Exhibit 8.)
The proposed judgment requests $10,737.50
in attorney’s fees actually incurred. Plaintiff contends the court is precluded
from applying local court rules or fee schedules to limit attorney’s fees.
(Velasquez decl., ¶ 5.) For this proposition, Plaintiff cites Cortez
v. Bootsma (1994) 27 Cal.App.4th 935
which is inapposite. In Cortez, the court of appeal determined that the
San Diego Superior Court’s rule could not limit the plaintiff’s attorney’s fees
in a personal injury action to the amount that Plaintiff agreed to be paid
under Labor Code § 3709, which required reasonable attorney’s fees to be
determined by the court. (Id.
937.)
As applied to default judgments, the
Legislature expressly provided that in an action on contract, "[i]f, by
rule of court, a schedule of attorneys' fees to be allowed has been adopted,
the clerk may include in the judgment attorneys' fees in accordance with the
schedule.” (Code
Civ. Proc., § 585 subd (a).) The California Rules of
Court expressly states that the court "may by local rule establish a
schedule of attorney's fees to be used by that court in determining the
reasonable amount of attorney's fees to be allowed in the case of a default
judgment." (Cal.
Rules of Court, Rule 3.1800.)
Assuming Plaintiff can prove principal
damage of $18,243.76 based on admissible evidence, the court will apply
scheduled fees. (Local Rule 3.214 [“$10,000.01 to $50,000, $690 plus 3% of the
excess over $10,000.”.)
Based on the foregoing, the court
continues the hearing to