Judge: Michelle C. Kim, Case: 24STCV11106, Date: 2024-11-12 Tentative Ruling

Case Number: 24STCV11106    Hearing Date: November 12, 2024    Dept: 78

DEPT:  

 

78 

OSC DATE: 

 

11/12/2024 

CASE NAME/NUMBER: 

 

24STCV11106 LUIS ANACLETO GONZALEZ vs CESAR DEL ROSARIO 

REQUEST FOR COURT JUDGMENT AGAINST [DEFAULTING PARTY]: 

 

CESAR DEL ROSARIO 

TENTATIVE RULING: 

 

 

DENY for reasons stated below. 

 

TENTATIVE 

 

Plaintiff Luis Anacleto Gonzalez d/b/a Lobos General Contractor Inc. (“Plaintiff”) filed this breach of contract action against defendants Cesar Del Rosario (“Defendant”) and Does 1 to 10. The complaint alleges that on October 18, 2019, Plaintiff and Defendant entered into a written agreement. (Compl. Exh. A.) The complaint prays for damages of $114,888.50, interest of 10 percent per annum from July 7, 2022, and attorney’s fees. 

 

Plaintiff seeks default judgment against Defendant in the principal amount of $114,888.50, interest of $34,466.55, costs of $628.94, and attorney fees of $5,000. 

 

  1. Default Cuts Off Defendant’s Right To Appear 

 

Plaintiff obtained entry of default against Defendant on August 30, 2024. The Court notes that Defendant improperly filed an Answer to the Complaint and a Cross-Complaint on October 21, 2024 without first setting aside the default. 

 

Entry of default cuts off a party’s right to appear in the action, including by filing pleadings, until default is set aside. (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385-86.) “A defendant against whom a default has been entered is out of court and is not entitled to take any further steps in the cause affecting plaintiff's right of action; he cannot thereafter, until such default is set aside in a proper proceeding, file pleadings or move for a new trial or demand notice of subsequent proceedings.” (Brooks v. Nelson (1928) 95 Cal. App. 144, 147–148.) 

 

To date, no motion to set aside default has been filed. The default still stands, and the Court intends to strike Defendant’s improperly filed pleadings on its own motion. 

 

  1. Application for Default Judgment Denied Due to Procedural Deficiencies 

 

First, Plaintiff must dismiss all defendants against whom default judgment is not sought pursuant to CRC, Rule 3.1800(a)(7). Plaintiff has not dismissed Does 1 to 10. 

 

Second, Plaintiff has not filed any declaration, with a summary of the case, and other admissible evidence in support of the judgment requested pursuant to CRC, Rule 3.1800(a)(1) and (a)(2). (See also Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361 [A defaulting defendant admits only the well pled facts concerning liability, not damages. Plaintiff must still introduce admissible prima facie evidence of damages.].) 

 

Third, Plaintiff seeks attorney fees, but does not provide a basis for attorney fees. Plaintiff must point to the specific contractual provision which allows for recovery of attorney fees. (CC §1717.5(a); CRC 3.1800(a)(9).) Further, unless a specific amount is expressly provided for in the contract, the fee request must otherwise conform with the Los Angeles Superior Court, Local Rule 3.214 fee schedule. 

 

Fourth, there is no declaration providing the interest computation in support of the prejudgment interest sought. (CRC, Rule 3.1800(a)(3).) 

 

No later than ___________, Plaintiff is to submit a new default judgment package correcting these defects. Failure to do so may result in the imposition of sanctions, including monetary sanctions and/or dismissal. The OSC re entry of default judgment is continued to ______________. 

 

Plaintiff is ordered to give notice.