Judge: Michael Shultz, Case: TC029030, Date: 2023-11-21 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/ui/main.aspx?casetype=civil

Case Number: TC029030    Hearing Date: January 19, 2024    Dept: A

TC029030 Philip Alvarez, Successor Trustee of the Evangelina Alvarez Living Trust of 2015 v. Westland Architecture and Development Corporation

[TENTATIVE] ORDER GRANTING PLAINTIFF’S REQUEST FOR COURT JUDGMENT AGAINST DEFENDANT, WESTLAND ARCHITECTURE AND DEVELOPMENT CORPORATION (MODIFIED)

      The Second Amended Complaint (“SAC”), filed on August 29, 2018, alleges that Plaintiff owns residential real property located at 925 E. Stockton Avenue in Compton (the Compton Property). Defendants allegedly engaged in fraudulent acts to fund three separate loans secured by the real property at issue. Defendants allegedly presented the loan as a non-owner-occupied transaction, although Plaintiff resided at the home. Plaintiff alleges claims for fraud, constructive fraud, breach of fiduciary duty, unjust enrichment, and unfair business practices.

      The clerk entered default against Defendant, Westland Architecture and Development Corporation (“Westland”), on November 21, 2023. Plaintiff requests judgment of $62,300 plus prejudgment interest, attorney’s fees, costs, and punitive damages. Plaintiff personally served the Statement of Punitive Damages on Westland.

      The Court’s file reflects that the following Defendants have been named but have not answered: Adenheim, Inc.; Ester Perez; and Unicitizens Financial. Defendant, Shobert Vartan answered the complaint, but a bankruptcy petition stays the action against Vartan. The clerk has entered defaults against Defendants, Fidelity Mortgage Finance Corp and Mpire Property Services, LLC. Plaintiff requests judgment against Westland only. Plaintiff must file a dismissal of all parties against whom judgment is not sought or file an application for separate judgment against those parties (including DOE defendants) under Code of Civil Procedure section 579, supported by a showing of grounds for each judgment. (Cal. Rules of Court 3.1800.)

      Plaintiff has otherwise substantiated principal damages of $62,300. Plaintiff is also entitled to recover a statutory penalty of $500 and attorney’s fees for Westland’s inducement of a contract for a work of improvement based on false or fraudulent representations. (Bus. & Prof. Code, § 7160.)  

      Plaintiff also requests imposition of punitive damages of $181,500.00. Punitive damages based the amount of the fraudulent profiteer’s ill-gotten gains is proper assuming the defendant has the ability to pay, Plaintiff has not proffered such evidence. (Kenly v. Ukegawa (1993) 16 Cal.App.4th 49, 58 ["Lacking ability, the purpose of punitive damages is not served when the award is based solely on high paper profit from the fraudulent transaction."].) Therefore, punitive damages are not recoverable.
      Prejudgment interest is re-calculated at $17.07 per day based on the total principal damage sustained ($62,300 x .10 / 365) for total prejudgment interest of $36,939.48 (2164 days x $17.07 per day) for interest accrued from the date the complaint was filed to the date Plaintiff submitted this request on December 22, 2023. 

      The Court awards attorney’s fees based on Los Angeles County Local Rule 3.214 in the amount of $2,136 (2 percent of the excess of the principal balance over $50,000 + 1,890). The amount of costs is modified to correct a calculation error ($230  not $250.00).

      Therefore, if Plaintiff dismisses all remaining defendants against whom default was not entered, the Court is inclined to award judgment against Westland as follows:

/ end tentative

WORKSHEET

Attorney’s fees

$0.01 to $1,000, 15% with a minimum of $75.00;

$1,000.01 to $10,000, $150 plus 6% of the excess over $1,000;

$10,000.01 to $50,000, $690 plus 3% of the excess over $10,000;

$50,000.01 to $100,000, $1,890 plus 2% of the excess over $50,000;

Over $100,000, $2,890 plus 1% of the excess over $100,000.

Costs