Judge: Michelle C. Kim, Case: 23STCV04065, Date: 2024-01-26 Tentative Ruling

Case Number: 23STCV04065    Hearing Date: April 3, 2024    Dept: 31

Tentative Ruling

Judge Kerry Bensinger, Department 31

HEARING DATE:     April 3, 2024                                      TRIAL DATE:  Vacated

CASE:                         Morrison Express Corporation (USA) v. MFS Supply, LLC

CASE NO.:                 23STCV04065

MOTION FOR ENTRY OF JUDGMENT

MOVING PARTY:               Plaintiff Morrison Express Corporation (USA)

RESPONDING PARTY:     No opposition

I.          BACKGROUND

            On February 24, 2023, Plaintiff, Morrison Express Corporation (USA), filed a Complaint against Defendant, MFS Supply, LLC, for (1) breach of written contract, (2) breach of oral contract, (3) account stated, and (4) quantum meruit.  As alleged, Plaintiff’s business includes importing, freight forwarding and logistical services.  Pursuant to a written and oral contract, Plaintiff provided such services to Defendant. The bill amounted to $80,290.70.  Defendant did not pay the bill.

            On January 26, 2024, the court granted Plaintiff’s Motion for Judgment on the Pleadings.  Plaintiff served Defendant with a notice of ruling and proposed judgment.

            On February 14, 2024, the court issued a minute order stating that the order granting Plaintiff’s motion for judgment on the pleadings did not indicate whether Defendant would be granted leave to amend.  Consequently, Defendant had ten days to file any amendment. Because Defendant did not file an amended pleading, the court directed Plaintiff to move for entry of judgment in its favor. 

            On February 29, 2024, Plaintiff filed this motion for entry of judgment in the sum of $102,346.94, consisting of the principal amount due of $80,290.70 as stated in the Complaint, $13,302.24 in interest, $8,019.00 in attorney fees, and $735.00 for costs of suit. 

            Defendant has not filed an Opposition.[1]

II.        JUDICIAL NOTICE

            Plaintiff requests judicial notice of (1) the court’s minute order granting Plaintiff’s Motion for judgment on the Pleadings (Request for Judicial Notice (RJN) 1), (2) the court’s minute order of February 14, 2024 (RJN 2), and (3) the Notice of Ruling filed and served by Plaintiff on January 26, 2024 (RJN 3).

            The unopposed request is GRANTED.  (Evid. Code, § 452, subds. (a), (d).)

III.       DISCUSSION & LEGAL STANDARD

Plaintiff moves for entry of judgment in its favor and against Defendant pursuant to Code of Civil Procedure (CCP) section 438.

             CCP section 438 provides that “if the motion [for judgment on the pleadings] is granted with respect to the entire complaint or answer with leave to file an amended complaint or answer, as the case may be, but an amended complaint or answer is not filed, then after the time to file an amended complaint or answer, as the case may be, has expired, judgment shall be entered forthwith in favor of the moving party.”  (Code Civ. Proc., § 438, subd. (h)(4)(C).)  CCP section 438 further provides the following: 

(i)(1) Where a motion for judgment on the pleadings is granted with leave to amend, the court shall not enter a judgment in favor of a party until the following proceedings are had: 

(A) If an amended pleading is filed and the moving party contends that pleading is filed after the time to file an amended pleading has expired or that pleading is in violation of the court’s prior ruling on the motion, then that party shall move to strike the pleading and enter judgment in its favor. 

(B)  If no amended pleading is filed, then the party shall move for entry of judgment in its favor. 

          (2) All motions made pursuant to this subdivision shall be made pursuant to Section 1010. 

          (3) At the hearing on the motion provided for in this subdivision, the court shall determine         
               whether to enter judgment in favor of a particular party. 

(Code Civ. Proc., § 438, subd. (i).) 

On January 26, 2024, the court granted Plaintiff’s motion for judgment on the pleadings. (RJN 1.) The order did not indicate whether Defendant had leave to amend.  (Id.)  On February 14, 2024, the court issued a minute order indicating that Defendant had ten days to file an amendment pursuant to California Rules of Court, rule 3.1320(g).  (RJN 2.)  Thus, Defendant had until February 5, 2024 to file an amended answer.  Despite being served with notice of the January 26, 2024 ruling, Defendant has failed to file an amended answer.  (RJN 3.) 

As Defendant has not filed an amended answer, Plaintiff is entitled to judgment pursuant to CCP section 438, subdivision (h)(4)(C).)  However, the court cannot enter judgment in the sum of $102,346.94.  The requested judgment consists, in part, of $735.00 for costs of suit.  Plaintiff has yet to file a Memorandum of Costs supporting the costs incurred.

IV.       CONCLUSION

Accordingly, the motion for entry of judgment is CONTINUED to April 16, 2024 to allow Plaintiff to file a Memorandum of Costs. 

Moving party to give notice. 

Dated:   April 3, 2024